1 

IN THE SUPREME COURT OF THE STATE OF KANSAS 

No. 117,945

STATE OF KANSAS, 

Appellee, 

v.

GROVER D. JAMES, 

Appellant.

SYLLABUS BY THE COURT 

1. 

 On the conflicting evidence admitted at trial in this homicide case, the district 

judge erred by refusing to give lesser included offense instructions for reckless seconddegree murder, reckless involuntary manslaughter, and imperfect self-defense involuntary 

manslaughter. None of these errors, evaluated for harmlessness under the state statutory 

standard, was reversible standing alone. 

2. 

 A district judge is not required to instruct a jury to consider a lesser included 

homicide offense simultaneously with any greater homicide offense. 

3. 

 Autopsy photographs, like other photographic evidence, are relevant if they have a 

reasonable tendency to prove a material fact. A district judge does not abuse his or her 

discretion by admitting autopsy photographs that are used by an expert witness to explain 

the path of a fatal bullet and the victim's resulting skull fractures. 
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4. 

 A prosecutor commits error when he or she states during closing arguments that a 

car was "stolen" despite an absence of evidence supporting a theft or criminal 

deprivation. In this case, such an error was harmless under the governing constitutional 

standard. 

5. 

 A continuance hearing is a critical stage at which a criminal defendant has a 

constitutional right to be present, unless he or she has knowingly and voluntarily waived 

that right. Assuming a violation of the defendant's right occurred in this case, the error 

was harmless under the governing constitutional standard. 

6. 

 Cumulative error does not require reversal of the defendant's convictions in this 

case. 

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed June 28, 2019. 

Affirmed. 

Kai Tate Mann, of Kansas Appellate Defender Office, argued the cause, and Sam Schirer, of the 

same office, was on the briefs for appellant. 

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, 

and Derek Schmidt, attorney general, were with him on the brief for appellee. 

The opinion of the court was delivered by 
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BEIER, J.: This is defendant Grover D. James' direct appeal of his convictions for 

first-degree premeditated murder of Leon McClennon and criminal possession of a 

firearm. 

James challenges the district judge's refusal to give certain lesser included 

homicide instructions and failure to tell the jury to consider certain homicide offenses 

simultaneously. He also challenges the admission of autopsy photographs into evidence, 

alleges reversible prosecutorial error, and asserts he was deprived of his constitutional 

right to be present at all critical stages of his trial. James also argues that cumulative error 

requires reversal of his convictions. 

Although we identify errors in James' case, the errors are not reversible standing 

alone or cumulatively. For the reasons outlined below, we affirm James' convictions. 

FACTUAL AND PROCEDURAL BACKGROUND

Resolution of James' appellate issues require an unusually extensive review of the 

factual and procedural background of this case. 

On the night of May 8 and into the early morning hours of May 9, 2015, Rance 

Kindred's friends and family threw him a birthday party, held in the basement of the 

Parrot-fa-Nalia dress shop in Wichita. The party was attended by a variety of Kindred's 

friends and family, including: Grover "Boo" James, Kindred's friend; August Hughes, 

James' girlfriend; Keialsha James, James' sister; Torey West, Kindred's girlfriend and 

James' sister; Artadius "Ta Ta" Johnson, Kindred's son; and Leon "Fat Head" 

McClennon, Johnson's cousin and Kindred's nephew. 
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Johnson and McClennon ended up at the party after Johnson spoke with Kindred 

on the phone. At the party, Kindred introduced James and Johnson for the first time. 

Kindred would testify that he had "wanted them to meet each other" but "it went bad right 

away because Ta Ta [Johnson] swolled up," that is, swelled his body in a confrontational 

manner. See Urban Dictionary, https://www.urbandictionary.com/define.php?term=swole 

(last visited June 28, 2019). The tension between the two escalated throughout the 

evening over a perception that Johnson was "mugging" James. On more than one 

occasion, Kindred told Johnson that he needed to "squash" his issues with James. 

At some point in the evening, Johnson left with McClennon and another cousin 

before he returned to the party to "chill with [his] auntie and stuff." According to 

Johnson, Kindred made another attempt to convince Johnson to "squash" things with 

James, which caused Johnson to "want[] to fight." But before things escalated too far, 

another of Johnson's cousins—Anita Jones—grabbed him and calmed him down. 

After this confrontation, many of the guests began leaving the party. Johnson and 

McClennon stayed to help clean up. James and Hughes initially left the party, but, 

Hughes would eventually testify, she remembered she had offered to help clean up; so 

she and James went back. 

Surveillance camera footage captured what happened in the Parrot-fa-Nalia 

parking lot and outside the entrance to the basement upon James and Hughes' return. The 

footage would later be admitted at James' trial. 

When James and Hughes pulled into the Parrot-fa-Nalia parking lot, Johnson and 

McClennon were outside. At that point, Johnson and McClennon immediately went down 

to the basement. Trial testimony would establish that the door at the bottom of the stairs 

to the basement was shut and could not be opened from the outside. 
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Surveillance footage from inside the door shows that Keialsha, James' sister, 

opened the door. Johnson and McClennon can be seen coming through the door, followed 

almost immediately by James. Hughes came through the door a moment later. 

The events that followed inside the basement—outside the view of any 

surveillance camera—were disputed at trial. It is undisputed, however, that James fired 

two shots, one of which hit McClennon in the head, killing him. The internal surveillance 

footage then shows, approximately 37 seconds after the group had moved off camera, 

McClennon stumbling headfirst to the floor, where his motionless body comes to rest. 

While McClennon's body is lying on the ground, James walks past it and back up the 

stairs. Hughes follows him. 

After the shooting, James drove Hughes' car to Oklahoma. He was apprehended 

there and was charged with first-degree premeditated murder and unlawful possession of 

a weapon. 

James' first appearance on the charges was in later October 2015. On December 

14, 2015, James filed with the clerk of the court a letter he had written to his thenattorney Brad Sylvester. The letter asked Sylvester to take certain actions in his case. 

James asked Sylvester to "file and pursue any and all necessary paperwork to insure a 

speedy trial, I'd also ask you to file a 180 day writ [and] a motion for statutory speedy 

trial." James later reiterated a request that Sylvester "vigor[o]usly pursue" his "speedy 

trial" and asked that Sylvester "not continue my preliminary hearing . . . or continue my 

trial ever." James also asked to be present at "any and all hearings . . . when my case is 

d[i]scussed." 
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 After District Court Judge David J. Kaufman found probable cause at James' 

January 13, 2016, preliminary hearing, James waived arraignment and the case was set 

for jury trial on February 16, 2016. 

 On February 16, Sylvester requested a continuance in a filing titled, "Notice and 

Order Concerning Defense Counsel's Request to Continue Trial after Consultation with 

the Defendant." District Court Judge Jeffrey E. Goering granted the request to continue 

the case and reset trial for March 14, 2016. The form document, which was signed and 

submitted by Sylvester, contained the following paragraph: 

"'In submitting this request to the Court, the named defense counsel represents to 

the Court that counsel has consulted with the named defendant about this continuance 

and this continuance is to be charged to the defendant pursuant to K.S.A. 22-3402(g).'" 

 On March 16, Sylvester asked for another continuance, using an identical form 

document. Judge Goering again granted the request and reset trial for June 6, 2016. 

 On April 14, James filed a motion seeking to dismiss counsel. James alleged an 

irreconcilable conflict and complete breakdown of communication. That same day, the 

motion was set for hearing on April 22, 2016. 

 

James was present for the motion hearing before District Court Judge John J. 

Kisner, Jr. On April 22 Judge Kisner acknowledged James' previous concerns over a 

speedy trial. Judge Kisner informed James that recent caselaw required that any further 

continuances would require James to sign off on them or attend a hearing. Judge Kisner 

denied the motion to dismiss counsel and informed James that any appointment of new 

counsel would mean more time for trial preparation. James responded, "I'm not worried 

about the time." 
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During the hearing, the court and parties discovered that a June 6 start date for 

trial—the date that had been set on March 16—conflicted with the court's schedule. Trial 

was reset for July 11, 2016. Judge Kisner advised James that the time would not be 

charged to the State and asked if James was agreeable to the new trial date. James said he 

understood and agreed to the new date. 

On June 15, 2016, James filed an Objection to Continuance. 

"COMES NOW, the Defendant, pro se, formally objecting to any continuance 

sought by either the State or defense counsel in the above entitled action. The defendant 

further asserts his statutory, K.S.A. 22-3208(7), and Fourteenth Amendment Due Process 

right to appear at all 'critical stages' in a prosecution including any proceeding where the 

court may order that the Defendant has waived any constitutional or statutory right." 

The same day, James moved to dismiss the case with prejudice. James alleged that 

his "statutory right to a fast and speedy trial, and his constitutional right to Due Process 

and fast and speedy trial" had been violated. 

In his motion, James set out a timeline of events, alleging that his trial had been 

continued by his attorney on February 16, March 14, and June 6, outside of James' 

presence and against his "clear wishes." James further alleged, "At no time has the 

defendant been present in the courtroom or by video, and asked if he agreed to the 

continuance or given the opportunity to object to the continuance" and that "[t]here are no 

signed waivers of speedy trial or signed acknowledgments of continuance." According to 

James, the time the State had to bring him to trial under K.S.A. 22-3402 began to run on 

January 13, 2016, the date of his preliminary hearing, and expired on June 12, 2016. 
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The same day James filed his pro se motion, the district court clerk sent Sylvester 

a letter advising him of the filing and saying that no further action would be taken unless 

Sylvester directed otherwise. 

On June 20, James filed another motion seeking to have Sylvester replaced. In an 

affidavit filed the next day, James alleged he had informed Sylvester in writing that he 

wanted to be present at all hearings but Sylvester had nevertheless failed to consult him 

about any of the previous continuances. James further alleged that he had not been given 

the opportunity to appear at any of the continuance hearings and that, had he been 

present, he would have objected to any continuance. 

On July 1, Judge Kaufman heard James' motion for new counsel. James explained 

that he felt there was a communication breakdown between himself and Sylvester 

because of the continuances Sylvester had requested without James' knowledge. 

The State contradicted James' assertion that he had not been present or known 

about any of the continuances, alerting the court to James' presence at the April 22 

hearing and his agreement to the continuance granted that day. 

James acknowledged that the State was correct but insisted the April 22 

continuance was not the only one. 

"It's several continuance[s]. I have it in my ROA that it's been continued by the defense 

that I did not sign off on or anything, didn't know it. I also filed a motion for . . . 

dismissal of case for fast and speedy trial violation, constitutional and statutory rights." 

The State conceded that James had filed a motion to dismiss based on a speedy 

trial violation. The motion had not been docketed for hearing because it was filed pro se. 
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Judge Kaufman ultimately granted James' request for new counsel. 

On July 11, Judge Goering continued the trial setting again despite James' in-court 

refusal to agree to it. James' new counsel had yet to receive any discovery. The State 

asked for a continuance of the trial until September 12 because of the unavailability of 

one of its witnesses. Judge Goering granted the State's request over James' objection and 

set a "firm" trial date of September 12. 

New counsel was appointed on three occasions in late August and early 

September, culminating in Steven Mank's appointment on September 1. Mank would 

represent James through the trial but be replaced before sentencing. 

On September 12, Judge Goering signed off on another trial continuance, 

continuing the case from September 12 to November 14, 2016. His order is a form 

document similar to those filed by Sylvester in February and March. However, unlike the 

earlier forms, this one required the defendant's signature approving the continuance. The 

form shows James signed and dated it on September 10. 

James' trial began on November 14, 2016, and was presided over by District Court 

Judge Stephen Ternes. 

At trial, the video surveillance footage from Parrot-fa-Nalia was introduced 

through the testimony of Wichita Police Detective Robert Chisholm. 

Chisholm's testimony was followed by the testimony of Dr. Timothy Gorrill, the 

forensic pathologist who conducted the autopsy of McClennon. 
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Before Gorrill testified, Mank objected to admission of certain of the State's 

anticipated autopsy photograph exhibits. Mank argued that the exhibits in question "are 

not necessary to describe the manner of death or what happened to the victim in this case. 

They are rather strong photographs. . . . [W]e would object to them for being overly 

gruesome and . . . not warranted in this case." The State argued that the challenged 

photos were necessary for Gorrill to explain the autopsy. 

Judge Ternes overruled the objection. He acknowledged that the photos were 

"somewhat graphic," but "autopsy photos tend to be that way." Without hearing Gorrill's 

testimony, Judge Ternes could not say the challenged photos were unnecessary. Mank 

renewed his previous objection when the State introduced the autopsy photos during 

Gorrill's testimony. The judge again overruled the objection. 

The first four photos showed McClennon's body, including closeups of his head 

and the gunshot wound. Specifically, one image showed an "obvious injury" at the 

bottom of McClennon's ear. Another showed a "skin defect, a hole, a gunshot wound." 

Gorrill concluded that this injury was an entry wound because there was no "exit defect" 

and they had "recovered a bullet along the path." 

The following photos were the focus of the defense objection. 

Exhibit 38 showed "the top of Mr. McClennon's skull" after his scalp had been 

"reflect[ed] back . . . with a scalpel." Gorrill highlighted a fracture in McClennon's skull 

that could be seen in the image. 

Exhibit 39 showed the base of McClennon's skull after a bone scalpel or saw had 

been used "to remove that part of the skull" and then the brain removed. Gorrill noted 

multiple skull fractures in the image. Based on the location of the fractures, Gorrill was 
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able to describe the likely path of the bullet. Gorrill concluded that the bullet entered the 

left side of McClennon's head, traveled through his skull, and caused the fractures shown 

in the photo. 

Exhibit 40 showed "the interior of [McClennon's] neck, the vertebral column" 

after the "neck structures" had been removed. Gorrill pointed out the projectile, which 

was "in one piece up here in the back of the neck" in the photo. He then indicated on his 

own body the approximate location where the projectile would have been lodged. He 

described the location as "[k]ind of in the neck area." 

Gorrill concluded "within a reasonable degree of medical certainty" that the cause 

of McClennon's death was a "[g]unshot wound to the head" and that the manner of death 

was homicide. 

The State's main witnesses on the events that occurred off camera in the basement 

were Johnson and Kindred. 

Johnson testified that he and McClennon had not planned on going to the party 

that night, but Kindred called Johnson and asked him to come. Johnson did not know 

James but had seen him before. 

After Johnson arrived at Parrot-fa-Nalia, he took a phone call in the parking lot. 

Kindred approached with James. Kindred "[t]old me [James'] name, said it was Boo, told 

Boo like who I was, told us we need to squash whatever was going on." 

Johnson said James was upset about Johnson's romantic relationship with James' 

niece. Johnson said he told James, "I was grown, she was grown." "He wanted me to 
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leave her alone, told me to leave her alone and end it. I felt disrespected by it because we 

both grown." 

At that point, Johnson's cousin grabbed him and they left the party with 

McClennon. They were gone 45 minutes to an hour. After Johnson "cooled down a little 

bit," Johnson and McClennon returned to the party. Johnson testified that he had just 

gotten out of prison and "wanted to spend time with everybody." 

Kindred and James approached Johnson again after he returned. Kindred told 

Johnson that he was "mugging" James and that 

"you know, need to squash this, this and that. We need him on our side. I got upset. That's 

when I wanted to fight. That's what I like to do, so I wanted to box. My cousin, Puddin, 

she came and stopped me. Anita Jones, she came and grabbed me, took me to the back, 

you know. She tried to squash it, break it up. They kept messing with me, so everybody 

got kind of mad. That's when my [dad] said the matter was over with, everybody started 

leaving and stuff." 

Johnson denied "mugging" James at the party, saying, "No. If I was mugging him, I 

would have approached him." For clarity, the Urban Dictionary describes "mugging" as 

"star[ing] or look[ing] at someone with malignant thoughts or intentions." Urban 

Dictionary, https://www.urbandictionary.com/define.php?term=Mugging (last visited 

June 28, 2019). 

 As most people, including James, left the party, Johnson and McClennon stayed 

with Kindred and several members of James' family. 

 Just after Johnson finished helping to load speakers in the parking lot, he "heard 

some tires screeching pulling in the parking lot." Johnson looked up and saw "a black 
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Jeep Cherokee . . . pulling in real fast." The driver was wearing a blue hat and a blue 

shirt, which was what James had been wearing. 

 Johnson testified, "[I] [g]rabbed my cousin and ran downstairs, back down the 

stairs but the door was shut." They "[b]anged on the door, . . . tried to get in before he 

came . . . around the corner." Neither he nor McClennon was carrying a weapon, and 

Johnson thought James was coming after him, 

"[b]ecause we had gotten into it. I been in the streets for a lot of years, you know. So my 

intuition kicked in. I already knew what was going on. He pulled in too fast, didn't look 

right. We had been getting into it. It wasn't right, something wasn't right. Plus no matter 

what, he was coming back. No matter what, I had my little cousin with me so I had to 

protect him, tried to." 

Keialsha opened the door. Johnson and McClennon pushed their way in and ran to 

Kindred, who was standing by the dance floor talking to his family. Johnson told Kindred 

that "his home boy was coming down the stairs with his gun, to get [Johnson]." 

Kindred told Johnson that 

"it was my fault, deal with it. I always wanted to be a gang member . . . . [B]asically 

saying, you know, it's on me. I got to deal with that . . . he ain't going to jump on it. He 

stood on the left on the side of me. Fat Head was on the right side of me. I was in the 

middle. He just told me it's your fault basically." 

Kindred did not try to talk to James but Johnson 

"kept telling [James] to put the gun down, kept telling him when he walked in there, 

came in there, he kept, you know, hollering am I tripping out 'cause this, this and that. I 
14 

kept telling him put the gun down, man, just put the gun down. You ain't got to go there, 

just put the gun down." 

In addition, James' "mom and his sisters was in front of him telling him to stop. It wasn't 

worth it, just an argument . . . . That's when he fired in the air. I grabbed my cousin, 

turned around, told him to come on." 

 After the first shot was fired, Johnson ran toward the back door. He did not look 

back because he felt "bullets flying past [his] head." Johnson soon realized McClennon 

was not behind him. The door had locked behind Johnson, and he ran to the front of the 

building to find out what had happened. When Johnson descended the front stairs to the 

basement, he saw McClennon's body on the floor. 

 Johnson also testified that none of this would have happened if he had brought a 

gun with him, because he would have shot James first. 

During cross-examination, Johnson admitted that he had wanted to fight James 

that night but claimed that McClennon did not want to fight. When confronted with a 

description of his earlier statement to police "that your cousin took his shirt off to fight 

[James]," Johnson called defense counsel Mank a liar and denied making the statement. 

Mank also asked Johnson if a third person, someone named "Travis," was also at 

Parrot-fa-Nalia that night. Johnson admitted that Travis had been there "for like ten 

minutes." Travis' last name is not included anywhere in the trial transcript. 

Kindred's version of events were presented to the jury through a video taken the 

day after the shooting and through live testimony. In the video, Kindred had explained 

what happened to McClennon's sister. 
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Kindred testified that Johnson had called him on the night of the party to see if 

Johnson could come to the party and bring McClennon. Kindred told him, "No. The 

police be checking this building. [McClennon's] underage." Despite Johnson's disregard 

of this warning, Kindred introduced Johnson to James because he wanted them to meet, 

but "it went bad right away because Ta Ta swolled up." 

In the video, Kindred was asked whether James had said he was leaving the party 

to get a gun. According to one unidentified person who can be heard in the video, several 

people had heard James make such a statement. Another unidentified person also 

reported hearing James' mother say that James was leaving to get a gun. Kindred said that 

was not true, based on James' post-shooting comments to him. James had told Kindred 

that he always had a gun with him, and that if he had wanted to shoot anyone, he would 

have done so earlier. 

Kindred also said in the video that the door into the basement had been shut 

because he wanted to show everyone how Johnson had been "mugging" James 

throughout the night; Kindred did not want Johnson to walk in during the demonstration. 

Kindred also told McClennon's sister that he told "Ta Ta" after the first altercation 

to leave "Boo" alone because they needed to keep "Boo" on their "team." According to 

Kindred, "Boo" was "a killer." He will "kill [someone] out here and don't give a fuck 

about it." 

In the video, Kindred also said Johnson and McClennon had run into the basement 

and then run behind him. Johnson and McClennon were telling Kindred that James was 

his "boy" and that he could stop James. Kindred said he walked toward James and tried to 

explain who McClennon and Johnson were and persuade James not to shoot them. 
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Kindred believed he had convinced James to stop, but Johnson and McClennon were 

standing on the dance floor, acting as if they were preparing to fight, and saying "let that 

nigga go." 

Kindred told James that if he wanted to fight Johnson and McClennon, he could, 

but he needed to put the gun away. Believing James had put the gun in his pocket, 

Kindred moved out of the way, expecting a fight to ensue. But, as soon as he moved out 

of the way, he saw James put the gun in his right hand and shoot into the air. 

In the video, Kindred further explained Johnson and McClennon ran different 

directions when James fired. Kindred ran behind James. Kindred did not say whether he 

believed James intended to hit McClennon with the second shot fired. He saw 

McClennon start to stumble and go down. Initially he thought McClennon was just 

ducking; Kindred realized McClennon had been hit when his body went limp. 

After being shown the video at trial, Kindred testified he had lied when he told 

McClennon's sister James always "roll[ed]" with a gun. According to Kindred, "if I know 

he had a gun, I would have told him don't come to my party with no gun." 

During cross-examination, Kindred testified that Johnson had "called some guys to 

come to the party." Kindred did not think they should be at the party, "because the guys 

he called, I know that they gang members. They Folks." 

After Johnson's friends arrived, someone told Kindred that Travis had a gun. 

Kindred confronted Travis and told him: "If you got a gun, you better get it out of here 

right now." Travis told Kindred that he had a gun but "didn't bring it up here for no 

problems." Kindred started to walk away, but Travis called him back and told him, "If I 

bring a pistol to something like this, I ain't bringing it to give to nobody else. I can use it 
17 

myself." Kindred replied, "[Y]eah, but you ain't going to do it up in here because if you 

do, I'm going to fuck you up." 

Kindred was asked if he "remember[ed] [Travis] being there prior to the shooting, 

like immediately prior to the shooting" and responded, "He was there the whole time." 

After the State concluded its case-in-chief, Hughes, West, and James testified for 

the defense. 

Hughes testified that she and James left the party to go home but came back when 

she remembered she had promised to help clean up. When they returned to Parrot-faNalia, Hughes stayed outside for a moment to smoke before going downstairs. 

When she got downstairs, she saw a confrontation around the dance floor. "I just 

seen a crowd of people rushing towards Boo as I was walking towards his mom who was 

sitting at the table cleaning it off." She saw "three or four boys" approaching James, one 

of whom was Travis. As the group approached James, she heard one of them say "what's 

up now[?]" 

Hughes then heard a gunshot and started to run. She heard a second gunshot and, 

when she looked up, saw McClennon on the floor. Hughes then continued running, 

leaving Parrot-fa-Nalia with someone else. By the time she reached the outside of the 

building, both James and her car were gone. 

West testified that some of Johnson's friends, including Travis, had shown up at 

the party earlier in the evening. At some point, she noticed Travis had a pistol. West told 

Kindred about the pistol but was not sure whether he had done anything about it. 
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West did not see what had caused the final confrontation. She explained, 

"We were cleaning up. The party was over. Pretty much everyone was gone. It 

was more a majority of women down in the party still cleaning up. We heard a big bam at 

the door. I'm not sure who opened the door, door came flinging open. 

"I saw my brother and girlfriend back up. He had her behind him like backing up. 

Three guys came . . . . [James] was pushing her around [a bench] so that he wouldn't fall 

and get back there. One guy came on the side, one stood on a thing right here (indicating) 

and one stood on the dance floor." 

West claimed Travis was there at the time. "He was standing by the long side of 

the thing on the side of the building like inside the building like it separated the dance 

floor and the bar." According to West, Travis was wearing an orange shirt. She heard 

someone yelling, "[Y]eah, what's up nigga now[?]" When asked who yelled, West said it 

was Johnson. 

West saw Johnson take his hoodie off like "[h]e wanted to fight." She saw that 

"Leon [McClennon] was in his stance like trying to go towards where everybody else was 

at and [Travis] was standing along the side of that bank with his hand behind his back." 

West then heard but did not see a gunshot. She did not know who had fired. When 

she heard the shot, she ducked and then heard a second shot. West stayed down after the 

second shot and did not see what happened. When she got up, everyone was gone. She 

saw McClennon on the floor and stayed with him until police arrived. 

James testified that he did not know either Johnson or McClennon before the party 

and did not know anyone in the "younger" group at the party. When James met Johnson, 

it did not go well because of a "little thing on Facebook" between Johnson and James' 
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nephew. According to James, after the initial introduction, Johnson was "mugging" him 

as if he had a problem with him. 

James and Hughes left the party, but came back because Hughes wanted "to help 

[and] wanted to get a plate." When they returned, James walked into the basement 

immediately after Johnson and McClennon. James' testimony continued: 

"When I come in, Rance[ Kindred is] standing right there. I'm walking up to 

Rance. August [Hughes] walks toward my mother when I walked in. Ta is like what up 

now, nigga. So I look at him like you want to trip now. So he was standing maybe I'd say 

10, 15 feet into the dance floor. 

"I walk right past Fat Head when I walked in. He didn't say nothing to me. I 

didn't have no problem with the brother. I don't know him. So he was standing there. He 

walked behind me like towards the—more towards the tables. 

"Then there was another cat out there at that time. I didn't know who he was. He 

had on an orange shirt. He was standing there. Rance called to me. He was like kind of 

pushing me back. So we stood there for a minute[.] 

. . . . 

[Kindred was saying,] Calm down, bro. Don't trip on that. Don't trip on that, and 

then after that it just—everything exploded from there I mean. 

 . . . . 

"Ta Ta is standing there like this, right. Yeah. What's up now nigga, puffing all 

up (indicating). I see Fat Head take off his hoodie. He's standing like to the side of me. 

The other dude is standing back there, but he's standing back there like this like yeah, you 

know (indicating [with right hand behind his back])." 
20 

James interpreted the "other dude['s]" action to mean "[t]hat he had a gun. He had 

something." James did not see a gun but saw "something flash, was like silverish." 

 The three kept coming toward James, James said. "I pulled out my gun and I fired 

and then I fired again." James testified that he was not firing at anyone. 

 James also testified that he had the gun on his "hip" the entire night and that he 

was carrying it because it is 

"[c]razy out here, man. I just lost an acquaintance of mine maybe two weeks before that. 

My niece, Reesha . . . was killed about a month before that. Another friend of mine was 

on the highway and the car pulled up beside him and gun—tried to gun him down. It's 

just—I was keeping it for protection. 

. . . . 

"I was in fear for my life. I didn't know what they was going to do to me. I seen a 

friend of mine maybe five or six months ago, some dudes jumped him, stomped him 

crushing his skull, killed him." 

After the shooting, James left Parrot-fa-Nalia. "I get in the truck, and I just drove, 

man." He ended up in Oklahoma. He was, 

"[s]cared man. I had never been in no situation like that in my life. Then when I did talk, 

I had talked to Rance [Kindred]. When he told me like the baby, you know, Fat [Head] 

had died, that was a baby. That was a kid, dude. That wasn't my intention to hurt that 

man. I didn't know him. I have a 17-year-old son. I don't know what I would do if it was 

my son." 
21 

James requested jury instructions on the lesser included crimes of second-degree 

murder, voluntary manslaughter, and involuntary manslaughter for the first-degree 

murder charge. 

The State opposed an instruction on second-degree murder under a theory that 

James had killed McClennon "unintentionally but recklessly under circumstances that 

show extreme indifference to the value of human life." See K.S.A. 2018 Supp. 21-

5403(a)(2). It argued that the evidence was "clear [James] fired two shots" and the 

"second shot was fired directly at Fat Head and hit him in the left side of the face. . . . 

That was an intentional act." If a second-degree murder instruction were to be given, the 

State urged Judge Ternes to limit it to intentional second-degree murder. See K.S.A. 2018 

Supp. 21-5403(a)(1). 

Mank argued that sufficient evidence supported instruction on both theories of 

second-degree murder. 

"Mr. Kindred testified [James] told him he didn't mean to hit anybody. The fact that one 

shot apparently was fired straight up into the ceiling I think goes to show that at least as 

far as the first shot goes, he wasn't intending to shoot or hit anybody, ever." 

Judge Ternes agreed with the State. "The way that I see it is it would be 

inconsistent I believe with the testimony of the defendant who clearly said at least twice 

that he was fearful of this group that he says surrounded him. It would be inconsistent 

then for him to fire recklessly." On the same rationale, Judge Ternes also denied James' 

request to instruct on reckless involuntary manslaughter. Mank objected unsuccessfully. 
22 

The State also opposed the voluntary manslaughter instruction sought by the 

defense, but Judge Ternes ultimately included voluntary manslaughter instructions on the 

theory of imperfect self-defense. 

Mank also sought an involuntary manslaughter instruction on the theory James 

committed a "lawful act in an unlawful manner," i.e., "excessive use of self-defense." See 

K.S.A. 2015 Supp. 21-5405(a)(4). The State objected, arguing it was not appropriate 

because it required an "unintentional act and all the evidence shows this was an 

intentional act." 

The judge declined to give the instruction because he could not "go all the way to 

involuntary manslaughter." He did not believe the evidence supported such an 

instruction. 

The final instructions read to the jury before closing arguments included: 

"Instruction No. 4, in Count 1 the defendant is charged with murder in the first 

degree. The defendant pleads not guilty. To establish this charge each of the following 

claims must be proved: No. 1, the defendant intentionally killed Leon McClennon. No. 

2, the killing was done with premeditation. No. 3, this act occurred on or about the 9th 

day of May, 2015, in Sedgwick County, Kansas. 

. . . . 

"Instruction No. 5, if you do not agree that the defendant is guilty of murder in 

the first degree, you should then consider the lesser included offense of murder in the 

second degree. 

"To establish this charge each of the following claims must be proved: No. 1, the 

defendant intentionally killed Leon McClennon. No. 2, this act occurred on or about the 
23 

9th day of May, 2015, in Sedgwick County, Kansas. A defendant acts intentionally when 

it is the defendant's desire or conscious objective to do the act complained about by the 

State. 

"Instruction No. 6, if you do not agree that the defendant is guilty of murder in 

the second degree, you should then consider the lesser included offense of voluntary 

manslaughter. To establish this charge each of the following claims must be proved: No. 

1, the defendant knowingly killed Leon McClennon. No. 2, it was done upon an 

unreasonable but honest belief that circumstances existed that justified deadly force in 

defense of a person. No. 3, this act occurred on or about the 9th day of May, 2015, in 

Sedgwick County, Kansas. 

. . . . 

"No. 7, the offense of murder in the first degree with which the defendant is 

charged includes the lesser offenses of murder in the second degree and voluntary 

manslaughter. You may . . . find the defendant guilty of murder in the first degree or 

murder in the second degree or voluntary manslaughter or not guilty. 

"When there is a reasonable doubt as to which of the two or more offenses 

defendant is guilty, he may be convicted of the lesser offense only, provided the lesser 

offense has been proven beyond a reasonable doubt. Your presiding juror should then 

mark the appropriate verdict. 

"Instruction No. 8, defendant claims his use of force was permitted as the defense 

of a person. [The] defendant is permitted to use physical force against another person 

including using a weapon when and to the extent that it appears to him and he reasonably 

believes such physical force is necessary to defend himself against the other person's 

imminent use of unlawful force. 

"Reasonable belief requires both a belief by defendant and the existence of facts 

that will persuade a reasonable person to that belief. Defendant is permitted to use against 

another person physical force that is likely to cause death or great bodily harm only when 
24 

and to the extent that it appears to him that he reasonably believes such force is necessary 

to prevent death or great bodily harm to himself from the other person's imminent use of 

unlawful force. 

"Reasonable belief requires both a belief by defendant and the existence of facts 

that would persuade a reasonable person to that belief. When use of force is permitted as 

self-defense, there is no requirement to believe this presumption may be overcome if you 

are persuaded by a reasonable doubt that the person did not reasonably believe that use of 

force likely to cause death or great bodily harm was necessary to prevent imminent death 

or great bodily harm to himself. 

. . . . 

"Instruction No. 10, a person who initially provokes the use of force against 

himself is not a person permitted to use force to defend himself unless the person 

reasonably believes that he is in present danger of death or great bodily harm and he has 

used every reasonable means to escape such danger other than the use of physical force 

which is likely to cause death or great bodily harm to another person or the person has in 

good faith withdrawn from physical contact with the other person and indicates clearly to 

the other person that he desires to withdraw and stop the use of force but the other person 

continues or resumes the use of force." 

 During the State's rebuttal closing argument, the prosecutor argued that James 

would not have fled to Oklahoma if the shooting were justified. 

"I submit to you a justified man who is killing because he's so scared does not 

run down the road to Oklahoma in a stolen vehicle. A justified man who has a right to 

that self-defense to protect himself or the ones he loves from someone else does not pitch 

his weapon out at 47th and Pawnee as he says he did. Those are not the actions of a 

justified man acting in defense of himself." 
25 

The jury found James guilty of first-degree murder and criminal possession of a 

weapon. 

Judge Ternes sentenced James to a Hard 50 life sentence for first-degree murder 

and a concurrent 21-month sentence for criminal possession. 

REFUSAL TO INSTRUCT ON RECKLESSNESS BASED HOMICIDES 

James argues that Judge Ternes' refusal to instruct the jury on reckless seconddegree murder and reckless involuntary manslaughter constitutes reversible error. 

An appellate court performs a four-step review of challenges to jury instructions: 

"'"'(1) First, the appellate court should consider the reviewability of the issue 

from both jurisdiction and preservation viewpoints, exercising an unlimited standard of 

review; (2) next, the court should use an unlimited review to determine whether the 

instruction was legally appropriate; (3) then, the court should determine whether there 

was sufficient evidence, viewed in the light most favorable to the defendant or the 

requesting party, that would have supported the instruction; and (4) finally, if the district 

court erred, the appellate court must determine whether the error was harmless, utilizing 

the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 

(2011), cert. denied [565 U.S. 1221] (2012).' [Citation omitted.] 

"'"'Generally, a defendant is entitled to instructions on the law applicable to his or 

her defense theory if there is sufficient evidence for a rational factfinder to find for the 

defendant on that theory. [Citation omitted.] And if that defendant requests an instruction 

at trial, the court must view the evidence in the light most favorable to the defendant. 

[Citations omitted.]' 

"'"We examine 'jury instructions as a whole, without focusing on any single 

instruction, in order to determine whether they properly and fairly state the applicable law 
26 

or whether it is reasonable to conclude that they could have misled the jury.' [Citation 

omitted.]" [State v.] Hilt, 299 Kan. [176] at 184-85 [322 P.3d 367 (2014)].' State v. 

Mattox, 305 Kan. 1015, 1020, 390 P.3d 514 (2017)." State v. Pulliam, 308 Kan. 1354, 

1361-62, 430 P.3d 39 (2018). 

James requested both instructions and objected to their exclusion. This challenge 

is therefore properly preserved. 

We next examine whether the requested instructions were legally appropriate. 

"An instruction on a lesser included crime is legally appropriate. State v. Plummer, 295 

Kan. 156, 161, 283 P.3d 202 (2012). And a lesser included crime includes a 'lesser degree 

of the same crime.' K.S.A. 2017 Supp. 21-5109(b)(1). This court has recognized five 

degrees of homicide. In descending magnitude, they are capital murder, first-degree 

murder, second-degree murder, voluntary manslaughter, and involuntary manslaughter. 

State v. Carter, 305 Kan. 139, 161, 380 P.3d 189 (2016) (citing State v. Cheever, 295 

Kan. 229, 258-59, 284 P.3d 1007 [2012])." Pulliam, 308 Kan. at 1362. 

Second-degree murder and involuntary manslaughter are both lesser degrees of firstdegree murder and would have been legally appropriate instructions. 

 

Judge Ternes' rejection of the requested instructions turned on the element framing 

the third step of our appellate analysis, whether the instructions were factually 

appropriate. His interpretation of the admitted evidence was that, even under James' selfdefense version, James acted intentionally, because he feared the men surrounding him. 

Both crimes at issue involve "reckless" behavior, but their degrees of recklessness 

differ. Reckless second-degree murder requires the killing of a human being committed 

"unintentionally but recklessly under circumstances manifesting extreme indifference to 

the value of human life." K.S.A. 2018 Supp. 21-5403(a)(2). 
27 

Reckless involuntary manslaughter requires only the killing of a human being 

committed "[r]ecklessly." K.S.A. 2018 Supp. 21-5405(a)(1). A "person acts 'recklessly' or 

is 'reckless,' when such person consciously disregards a substantial and unjustifiable risk 

that circumstances exist or that a result will follow, and such disregard constitutes a gross 

deviation from the standard of care which a reasonable person would exercise in the 

situation." K.S.A. 2018 Supp. 21-5202(j); see also State v. Gonzalez, 307 Kan. 575, 581, 

412 P.3d 968 (2018) (outlining requirements of unintentional second-degree murder, 

reckless involuntary manslaughter). 

We have previously addressed the differences between the intentional and reckless 

forms of second-degree murder in State v. Deal, 293 Kan. 872, 884, 269 P.3d 1282 

(2012). In that case, we noted "blind conduct, while one form of reckless conduct, is not 

the only type of conduct that can be reckless; even an intentional blow can result in an 

unintentional but reckless killing." 293 Kan. at 882. "[I]t is not the intent to inflict a blow 

but the intent to kill that is the focal point" of the distinction between intentional seconddegree murder and unintentional but reckless second-degree murder. 293 Kan. at 882. 

"[T]he unambiguous language of [the second-degree murder] statute requires the 

killing—the result—to be either intentional or unintentional." (Emphasis added.) 293 

Kan. at 883 (citing substantively identical predecessor statute). In short, evidence that 

James intended the underlying act of shooting is inadequate to rule out an instruction on 

reckless second-degree murder. The question is whether there was evidence that a killing 

was committed recklessly. 

Although we decided Deal on law that predated the legislature's 2011 criminal 

code recodification, the recodified statute on culpable mental states is consistent with its 

holding. A person's conduct is intentional with respect to a result "when it is such 

person's conscious objective or desire to . . . cause the result." K.S.A. 2018 Supp. 21-
28 

5202(h). This stands in contrast to the definitions of "recklessly" and "reckless" under 

K.S.A. 2018 Supp. 21-5202(j). 

Looking at the evidence in this case in a light most favorable to James, as this 

court must, we conclude that a jury instruction on reckless second-degree murder was 

factually appropriate. There was testimony and physical evidence that James did not 

intend to kill McClennon. The first shot fired by James went into the air and hit the 

ceiling. James testified that he was not firing at anyone when he shot the second time. 

This testimony echoed what he had told Kindred when he learned McClennon was dead. 

Although James' version was disputed, there was enough that a reasonable juror could 

have convicted James of killing McClennon recklessly while manifesting extreme 

indifference to the value of human life. The State's responsive assertion that there is no 

testimony that James fired "blindly" or fired only "warning shots" requires too much to 

justify an instruction for reckless second-degree murder. The instruction was factually 

appropriate, and the district judge's refusal to give the instruction was error. 

It does not follow automatically that facts supporting a reckless second-degree 

murder instruction also support a reckless involuntary manslaughter instruction because 

of the difference in degree of recklessness between the crimes mentioned above. We thus 

must examine the evidence supporting reckless involuntary manslaughter. 

 

Recently, in State v. Gonzalez, 307 Kan. 575, 412 P.3d 968 (2018), this court 

rebuffed a constitutional vagueness challenge to the greater crime, differentiating its 

recklessness requirements from that of involuntary manslaughter along the way. 

"'To convict a defendant charged with unintentional second-degree murder, the State is 

required to prove not only that the defendant consciously disregarded a substantial and 

unjustifiable risk that death will result from existing circumstances but also that the 
29 

defendant did so under "circumstances manifesting extreme indifference to the value of 

human life." [Citation omitted.] Although recklessness is an essential element to prove 

the offense in both statutes, the unintentional second-degree murder statute still requires 

an additional element.'" Gonzalez, 307 Kan. at 583. 

The "difference between unintentional second-degree murder and involuntary 

manslaughter is one of degree and not one of kind." 307 Kan. at 583. There is a 

"recognized spectrum of culpability for the results of one's reckless acts." 307 Kan. at 

583. Recklessness attributable to "'purpose or knowledge is treated as depraved heart 

second-degree murder, and less extreme recklessness is punished as manslaughter.'" 307 

Kan. at 583 (quoting State v. Robinson, 261 Kan. 865, 877-78, 934 P.2d 38 [1997]). In 

Gonzalez, the "instructions required the jury to place [the defendant's] conduct on that 

spectrum by deciding whether the facts showed he was not just reckless in disregarding 

the risk that [the victim] would die, but also extremely indifferent to the value of human 

life." Gonzalez, 307 Kan. at 583. 

This being said, on the particular evidentiary record before us today, an instruction 

on reckless involuntary manslaughter also was factually appropriate. If jurors accepted 

that James acted recklessly, the evidence did not foreclose culpability at either end of the 

spectrum for the results of his reckless acts. The varying accounts of what happened 

inside the basement—and outside view of any surveillance cameras—presented the jury 

with a range of possibilities. It was the jury's task, not the district judge's, to consider the 

evidence and assess factors—such as the number of people in the basement and James' 

reasons for shooting—before reaching a conclusion on whether James' recklessness rose 

to the second-degree murder level of extreme indifference to the value of human life. The 

district judge also erred in refusing to give the reckless involuntary manslaughter 

instruction. 
30 

We now turn to harmlessness. James argues that each of the errors identified is a 

constitutional flaw in his trial. See State v. Salary, 301 Kan. 586, 599, 343 P.3d 1165 

(2015). He urges us to reconsider our caselaw applying a statutory harmlessness test to 

such instruction error. He argues that these errors implicate federal and state 

constitutional guarantees of a defendant's right to present his or her theory of defense. See 

State v. Evans, 275 Kan. 95, 102, 62 P.3d 220 (2003) (defendant entitled to present 

theory of his or her defense; exclusion of evidence integral to theory violates defendant's 

fundamental right to fair trial). 

James does not cite any caselaw or other authority establishing the rule he seeks, 

and he does not otherwise articulate an argument sufficient to persuade a majority of this 

court to reconsider application of the statutory test in these circumstances. See State v. 

Torres, 280 Kan. 309, 331, 121 P.3d 429 (2005) (simply pressing point without pertinent 

authority, without showing why point sound despite lack of supporting authority or in 

face of contrary authority akin to failing to brief issue; when party fails to brief issue, 

issue considered waived, abandoned). We therefore continue to apply the statutory test 

today. 

Under that test we "must be persuaded that there is no reasonable probability that 

the error will or did affect the outcome of the trial." State v. Ward, 292 Kan. 541, 565, 

256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012). The burden of demonstrating 

harmlessness is on the party benefiting from the error, which, in this case, is the State. 

See State v. Preston, 294 Kan. 27, Syl. ¶ 3, 272 P.3d 1275 (2012). 

To reach a verdict in this case the jury had to resolve the conflict between two 

competing versions of the critical moments surrounding the shooting of McClennon. 

Either James returned to the party intending to do harm to Johnson and McClennon or he 

returned for other reasons and then was forced to react to a lethal threat from Johnson, 
31 

McClennon, and Travis. The jury found James guilty of first-degree murder, which 

required jurors to conclude not only that the killing was intentional but also premeditated. 

See K.S.A. 2018 Supp. 21-5402(a)(1). This verdict eliminates the possibility that the jury 

viewed the killing as merely reckless, and we can safely say there is no reasonable 

probability the judge's refusal to instruct on either or both reckless second-degree murder 

and involuntary manslaughter affected the outcome of the trial. 

REFUSAL TO INSTRUCT ON IMPERFECT SELF-DEFENSE INVOLUNTARY MANSLAUGHTER

James' second appellate challenge mirrors his first. He argues that the jury should 

have been instructed on imperfect self-defense involuntary manslaughter. Our analysis of 

this issue uses the same analytical framework and standard of review outlined for his first 

issue. 

Imperfect self-defense based on a "lawful act [committed] in an unlawful manner" 

has been characterized as a "lawful exercise of self-defense, but with excessive force," 

State v. McCullough, 293 Kan. 970, 976, 270 P.3d 1142 (2012), and was first recognized 

in State v. Gregory, 218 Kan. 180, 185-86, 542 P.2d 1051 (1975). 

James preserved this issue by requesting the instruction and objecting to its 

omission. 

The instruction was legally appropriate, because involuntary manslaughter is a 

lesser degree of homicide and therefore a lesser included crime of first-degree murder. 

The State argues in its brief that the instruction was not factually appropriate 

because the crime requires the defendant's act to be unintentional. It cites relatively recent 

opinions from the Court of Appeals interpreting the current version of involuntary 
32 

manslaughter, as well as older opinions from this court that interpreted the prerecodification statute. Although these authorities were good law when the State's brief 

was filed, this court has since held that there is no requirement that "lawful act in an 

unlawful manner" involuntary manslaughter be committed unintentionally. Pulliam, 308 

Kan. 1354, Syl. ¶ 1 ("Conviction of involuntary manslaughter under an imperfect selfdefense theory pursuant to K.S.A. 2017 Supp. 21-5405(a)(4) does not require proof of a 

reckless or unintentional killing."). 

The State's alternative argument is that the evidence demonstrated James was an 

initial aggressor who cannot rely on either perfect or imperfect self-defense. See K.S.A. 

2018 Supp. 21-5226. According to the State, "overwhelming evidence showed that 

defendant retrieved his gun, returned to the party, followed Johnson and the victim down 

the stairs, and fired the fatal shot 37 seconds after entering the basement." 

Although the State's version of the facts is certainly plausible, even arguably 

probable, it was not the only version offered at trial. James testified that he had his gun 

on his hip the entire night. Both he and Hughes testified that they came back to the party 

because she had promised to help clean up. It is undisputed—and corroborated by 

surveillance video—that James followed Johnson and McClennon back into the party. 

But what happened during the next 37 seconds is not so clear. One version of events has 

James surrounded by three menacing men, two of them ready to fight and the third 

possibly armed with a gun. The question of whether James was the initial aggressor was a 

fact question for the jury to decide and the answer not so obvious that the applicability of 

imperfect self-defense was precluded. 

The question remains whether an imperfect self-defense involuntary manslaughter 

instruction was otherwise supported by the evidence admitted at trial and thus factually 

appropriate. 
33 

Based on the trial evidence viewed in the light most favorable to James, we hold 

that it was. One of the key points of contention at trial was whether any of the three men 

James described as surrounding him had a gun. The State's position was that no one other 

than James had such a weapon. If the jury agreed with the State on that point, it is 

nevertheless possible the jury could have concluded, based on James' testimony and the 

testimony of others, that James was warranted in exercising some level of self-defense 

but exceeded necessary force by firing his gun. He would have committed a lawful act in 

an unlawful manner. 

It was error for the judge not to instruct the jury on imperfect self-defense 

involuntary manslaughter. 

Under the statutory harmless error standard, again, we "must be persuaded that 

there is no reasonable probability that the error will or did affect the outcome of the trial." 

Ward, 292 Kan. at 565. On the facts of this case, we conclude there was no reasonable 

probability this instruction error affected the outcome. 

Despite the theoretical possibility that the jury could have reached an involuntary 

manslaughter verdict based on imperfect self-defense, such a verdict was highly 

improbable. According to Gorrill's expert testimony and other witnesses, the second shot 

that killed McClennon appears to have hit him as he was running away from James after 

the first shot. Shooting an unarmed person in retreat is antithetical to self-defense, perfect 

or imperfect. 

SIMULTANEOUS JURY CONSIDERATION OF LESSER INCLUDED CRIMES

James argues that the jury should have been instructed to consider verdicts of 

premeditated murder and imperfect self-defense voluntary manslaughter simultaneously. 
34 

James concedes that he did not request the instruction and thus this court should 

review the issue for clear error. The State also argues that the invited-error doctrine 

should preclude review by this court because James requested the instruction he now 

challenges. In reply, James clarifies that he is not challenging Instructions 5 and 6, which 

told the jury that "if you do not agree that the defendant is guilty of" the greater crime, 

"you should then consider the lesser included offense." Rather, he is challenging the 

judge's failure to affirmatively instruct the jury to consider premeditated first-degree 

murder and imperfect self-defense voluntary manslaughter simultaneously. 

Regardless of the merit of any preservation argument, James cannot prevail on this 

issue. A majority of this court has held mere months ago that a "district court is not 

required to instruct a jury to consider a lesser included homicide offense simultaneously 

with any greater homicide offense." State v. Sims, 308 Kan. 1488, Syl. ¶ 2, 431 P.3d 288 

(2018), pet. for cert. filed April 29, 2019. Regardless of any disagreements a minority of 

the court might have had with that ruling, see 308 Kan. at 1507-09 (Beier, J., concurring) 

("sequential consideration does not ensure that a jury ever reaches, much less effectively 

considers, [defense] theory"), Sims is now the controlling precedent. 

The district judge did not err by failing to instruct the jury to consider lesser 

included crimes simultaneously. 

ADMISSION OF AUTOPSY PHOTOS

James next challenges Judge Ternes' admission of autopsy photos over repeated 

defense objections. 

"'"'The standard of review for the admission of photographic 

evidence requires the appellate court to first determine whether the 
35 

photos are relevant. If a party argued that the photographs are overly 

repetitious, gruesome, or inflammatory, that is to say, prejudicial, the 

standard of review is abuse of discretion.'" State v. Rodriguez, 295 Kan. 

1146, 1156, 289 P.3d 85 (2012) (quoting State v. Riojas, 288 Kan. 379, 

387, 204 P.3d 578 [2009]). Abuse of discretion also is the standard of 

review when a party challenges evidence as cumulative.' State v. Hilt, 

299 Kan. 176, 195, 322 P.3d 367 (2014). 

"The burden of demonstrating abuse of discretion falls on the party asserting the 

error. See State v. Rodriguez, 295 Kan. 1146, 1156, 289 P.3d 85 (2012). A district court 

abuses its discretion when the challenged action 

"'"'(1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person 

would have taken the view adopted by the trial court; (2) is based on an 

error of law, i.e., if the discretion is guided by an erroneous legal 

conclusion; or (3) is based on an error of fact, i.e., if substantial 

competent evidence does not support a factual finding on which a 

prerequisite conclusion of law or the exercise of discretion is based.'"' 

295 Kan. at 1156 (quoting State v. Robinson, 293 Kan. 1002, 1027-28, 

270 P.3d 1183 [2012])." State v. Love, 305 Kan. 716, 721, 387 P.3d 820 

(2017). 

James argues that Judge Ternes understated the gruesomeness of the photos and 

that there was "not a compelling reason for admission, because the State had already 

admitted a video showing Mr. McClennon's death in real time." 

Photographic evidence is relevant if "it has a reasonable tendency to prove a 

material fact." Love, 305 Kan. at 721. 

"Autopsy photographs assisting a pathologist in explaining the cause of death are relevant 

and admissible, but those serving only to '"'inflame the minds of the members of the 
36 

jury'"' are not. Rodriguez, 295 Kan. at 1157 (quoting State v. Riojas, 288 Kan. 379, 387, 

204 P.3d 578 [2009]). In addition, a district court may abuse its discretion by admitting 

unduly repetitious photographs. 295 Kan. at 1157. 'The admission of photographs in a 

murder case has rarely been held to be an abuse of discretion.' 295 Kan. at 1157 (citing 

State v. Sappington, 285 Kan. 176, 195, 169 P.3d 1107 [2007]). '"[B]ecause the State has 

the burden to prove every element of the crime charged, photographs used to prove the 

elements of the crime, including the fact and manner of death and the violent nature of 

the crime, are relevant even if the cause of death is not contested."' Hilt, 299 Kan. at 196; 

see State v. Dupree, 304 Kan. 43, 64, 371 P.3d 862 (2016) ('As to materiality, 

photographs showing the jury the manner of death are material in a murder trial.')." Love, 

305 Kan. at 721-22. 

The photos James challenges were not repetitious. They allowed the pathologist to 

explain the path of the bullet that killed McClennon and show skull fractures that 

resulted. Although the State introduced video evidence of McClennon stumbling and 

falling in the moment after being shot, it is impossible to tell from the video alone what 

caused McClennon to stumble and fall. 

Judge Ternes did not abuse his discretion by admitting the photos. 

PROSECUTORIAL ERROR

This court applies a two-step analysis to evaluate claims of prosecutorial error. 

"To determine if the prosecutor erred, 'the appellate court must decide whether the 

prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to 

conduct the State's case and attempt to obtain a conviction in a manner that does not 

offend the defendant's constitutional right to a fair trial.' [State v.] Sherman, 305 Kan. [88, 

109, 378 P.3d 1060 (2016)]. If the court finds error, the burden falls on the State to 

demonstrate 'beyond a reasonable doubt that the error complained of will not or did not 

affect the outcome of the trial in light of the entire record, i.e., where there is no 
37 

reasonable possibility that the error contributed to the verdict.' Sherman, 305 Kan. 88, 

Syl. ¶ 8." State v. Butler, 307 Kan. 831, 863, 416 P.3d 116 (2018). 

During the State's closing, the prosecutor said, "I submit to you a justified man 

who is killing because he's so scared does not run down the road to Oklahoma in a stolen 

vehicle." 

 James argues there was no evidence to support the prosecutor's description of 

Hughes' car as "stolen." The State attempts to excuse the comment as being a reasonable 

inference based on the evidence. According to the State, "While defendant is correct in 

noting that Hughes did not expressly testify that defendant stole her car, Hughes's 

testimony, as well as that of defendant, indicated that defendant did not seek or obtain 

Hughes's permission to take the vehicle." 

There are two basic elements of theft: unauthorized control over the property and 

an intent to deprive the owner of the property. See K.S.A. 2018 Supp. 21-5801 (theft, 

permanent deprivation); K.S.A. 2018 Supp. 21-5803 (criminal deprivation, temporary). 

Given the dating relationship of Hughes and James, it was at least presumptuous of the 

prosecutor to state, in essence, that James lacked implicit or explicit permission to use 

Hughes' car as if it were his own. Even assuming lack of authorization was established, 

there was no evidence that James intended to permanently or temporarily deprive Hughes 

of the car. The prosecutor's description of the car as "stolen" was error because it was 

unsupported by evidence. 

Moreover, as noted in James' brief, referencing an uncharged crime can be 

problematic because it encourages jurors to draw an inference of a defendant's propensity 

to commit crimes. Under K.S.A. 2018 Supp. 60-455(a), evidence of other crimes or civil 

wrongs is generally inadmissible. Even if James' exit in Hughes' car might fall outside the 
38 

prohibition in K.S.A. 2018 Supp. 60-455(a) because it occurred on the same "specified 

occasion" as the murder, it qualified as unnecessary and unwise as well as factually 

unsupported. 

To avoid reversal of James' convictions for the prosecutor's error, the State must 

establish "beyond a reasonable doubt that the error complained of will not or did not 

affect the outcome of the trial in light of the entire record, i.e., where there is no 

reasonable possibility that the error contributed to the verdict." State v. Sherman, 305 

Kan. 88, Syl. ¶ 8, 378 P.3d 1060 (2016). 

In light of the entire record, the error does not require reversal. The remark was 

isolated. The point the prosecutor sought to make—that a person "justified" in shooting 

would not flee the state—was a valid argument, regardless of whether the car was stolen. 

Moreover, the jury heard testimony that Hughes and James were in a dating relationship 

and that James had driven the car to Parrot-fa-Nalia. In other words, the prosecutor's 

characterization probably did more to damage her credibility than it did to undermine the 

defense case. There was no dispute James simply left the scene in the same car he had 

driven to it. 

CONSTITUTIONAL RIGHT TO PRESENCE 

"An appellate argument on a 'defendant's right to be present at every critical stage 

of his or her criminal trial raise[s] an issue of law over which this court exercises 

unlimited review.' State v. Verser, 299 Kan. 776, 787, 326 P.3d 1046 (2014)." State v. 

Wright, 305 Kan. 1176, 1178, 390 P.3d 899 (2017) (Wright I). 

Sylvester asked for, and received, trial continuances on two occasions. The 

requests were made using the same generic form, and each contained a representation 
39 

from Sylvester that he had "consulted with" James and acknowledged that the 

continuance would be charged to the defendant. The State does not dispute that James 

was not present when either continuance was granted. 

This court has held that a continuance hearing is a critical stage at which a 

defendant is entitled to be present. See Wright I, 305 Kan. at 1178. 

"'Under the plain language of [the speedy trial statute,] K.S.A. 22-3402, a 

continuance resulting from a defendant's request stays the running of the statutory speedy 

trial period. When the request is made by defense counsel, the request for continuance is 

attributable to the defendant unless the defendant timely voices an objection. Because a 

defendant's disagreement matters in a statutory speedy trial analysis, a defendant must 

have an opportunity to be present to express that disagreement.' State v. Dupree, 304 

Kan. 43, Syl. ¶ 2, 371 P.3d 862 (2016)." Wright I, 305 Kan. at 1178. 

Thus James' right to be present at every critical stage was violated when 

continuances were ordered outside his presence, unless he knowingly and voluntarily 

waived that right. See State v. Northern, 304 Kan. 860, 862, 375 P.3d 363 (2016). 

Because we see nothing in the record to evidence such a waiver, we assume error on this 

point. 

Assuming James' right was violated, the error may be declared harmless under the 

constitutional standard "'where the party benefitting from the error proves beyond a 

reasonable doubt that the error complained of will not or did not affect the outcome of the 

trial in light of the entire record, i.e., where there is no reasonable possibility that the 

error contributed to the verdict.'" Wright I, 305 Kan. at 1179 (quoting Ward, 292 Kan. 

541, Syl. ¶ 6). 
40 

In Wright I, this court remanded the case to the district court for factual findings to 

enable evaluation of the harmlessness of the deprivation of a defendant's right to be 

present at a continuance hearing. 

"Unfortunately, our ability to examine harmlessness here is stymied by the lack 

of factual findings on the presence issue from the district court. See State v. Hoge, 283 

Kan. 219, 221-22, 150 P.3d 905 (2007) (meaningful appellate review precluded when 

trial court's findings of fact, conclusions of law inadequate to disclose controlling facts, 

basis for court's findings); see also State v. Moncla, 269 Kan. 61, 65, 4 P.3d 618 (2000) 

(district judge must make factual findings before appellate review can occur). Without 

more information about the parties' circumstances and the avenues available to them and 

the judge on August 19, we cannot determine with any level of confidence whether 

Wright's absence was prejudicial. We are unable to assume that he would have changed 

the judge's mind about granting the continuance, making his trial timely commenced; we 

are unable to assume that the State would have obtained the continuance in spite of 

Wright's objection; we are unable to make any reliable prediction of the strength of the 

State's case or the strength of Wright's defense depending on the day the trial began. See 

Verser, 299 Kan. at 789-90 (strength of prosecution's case one of the factors in 

harmlessness analysis after violation of defendant's right to be present at all critical stages 

of trial). 

"Ordinarily we would be inclined to lay the impotence of the record on appeal on 

this issue solely at the feet of the State, which must demonstrate harmlessness once an 

error is shown. See Ward, 292 Kan. 541, Syl. ¶ 6 (State, as party benefitting from error, 

bears burden of showing harmlessness). We do not do so automatically here, because 

defense counsel and the district judge also share some responsibility for the absence of 

findings in the record. Defense counsel put no emphasis on this issue at the hearing on 

the motion for new trial and did not object to the lack of findings. See State v. Rodriguez, 

302 Kan. 85, 91, 350 P.3d 1083 (2015) (party must object to inadequate findings of fact 

to preserve issue for appeal). And the judge did not ensure that all necessary findings 

were made on each outstanding issue, which is inconsistent with the judge's duty under 

Rule 165 (2017 Kan. S. Ct. R. 214). 
41 

"The one person who certainly shares none of the responsibility for letting this 

issue drop is Wright himself. He asserted his right to be present in the letter to Frieden, 

copied to the clerk of the court, who placed the letter in the court file. Wright filed the pro 

se motion to dismiss for violation of his right to speedy trial and, as part of it, again drew 

the court's attention to the violation of his right to be present. He repeatedly voiced his 

disapproval of the continuance Frieden obtained in his absence. This chain of events is 

reminiscent of those in State v. Raskie, 293 Kan. 906, 925-26, 269 P.3d 1268 (2012), and 

State v. Seward, 289 Kan. 715, 217 P.3d 443 (2009), in which defendants took steps to 

raise constitutional issues before district judges, but the judges' findings were inadequate 

for purposes of appellate review. 

"'When an appellate court is presented with inadequate findings, the proper 

course taken depends on whether the issue was raised and can be resolved without 

remand.' State v. Neighbors, 299 Kan. 234, 240, 328 P.3d 1081 (2014) (citing Raskie, 293 

Kan. at 925-26 [remanding because district judge made inadequate findings on 

defendant's cruel and unusual punishment argument]). We are left with no choice but 

remand for findings here, because we cannot decide from the record before us whether 

Wright's absence on August 19 had serious or minimal consequences." Wright I, 305 

Kan. at 1179-80. 

Citing Wright I, James asks for a remand for the district judge to make the factual 

findings necessary for meaningful appellate review of his claim. We are unwilling to take 

this step. 

This case differs from Wright because the record is not silent on James' 

contemporaneous attitude toward the continuances obtained by Sylvester. Although 

generic forms were used, and there is no evidence of a waiver of James' right to be 

present, Sylvester represented to the court that he had consulted with his client and at 

least implied that James agreed with his counsel's course of action. 
42 

In addition, the record establishes that James later acquiesced in other 

continuances that postponed his trial. On April 22, 2016, James agreed to his trial being 

moved from June to July to accommodate the court's calendar. At the same hearing, he 

told the court, "I'm not worried about the time." In September 2016, after Mank had 

finally been appointed, James again agreed to a continuance from September to 

November. James personally signed off on the form requesting the continuance. Unlike 

the defendant in Wright, James' initial unequivocal demand for no continuances charged

against him collapsed in the face of other exigencies, principally the need for adequate 

time to prepare for new counsel. 

Absent any consistent assertion of a violation of his speedy trial right or another 

sign of prejudice arising from James' absence from continuance hearings, any assumed 

error would not be reversible. Cf. State v. Wright, 307 Kan. 449, 456-58, 410 P.3d 893 

(2018) (Wright II). 

CUMULATIVE ERROR

We have identified multiple errors in James' trial, and he asserts entitlement to 

reversal of his convictions under the cumulative error doctrine. 

"'Cumulative error, considered collectively, may be so great as to require reversal 

of a defendant's conviction. The test is whether the totality of the circumstances 

substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial 

error may be found under the cumulative error doctrine if the evidence against the 

defendant is overwhelming.'" State v. Carter, 305 Kan. 139, 166, 380 P.3d 189 (2016). 

The errors in this case consist of three instructional errors—refusal to instruct on 

reckless second-degree murder, reckless involuntary manslaughter, and imperfect selfdefense involuntary manslaughter—and one prosecutorial error. In addition, we have 
43 

assumed a violation of James' right to be present at all critical stages because the record 

contains no evidence that he knowingly and voluntarily waived that right. 

The prosecutor's error during closing was a discrete error that in no way 

compounded the instructional errors. See Sims, 308 Kan. at 1507 ("Taken together, these 

errors in no way compounded one another; they were discrete."). Likewise, the assumed 

violation of James' right to be present at continuance hearings did not compromise his 

case in any way related to the other errors. The instructional errors, however, were 

interwoven, and all related to James' degree of culpability in the shooting. 

Despite this commonality, we nevertheless conclude that the combination of 

instruction errors did not deprive James of a fair trial. Again, there were two 

unequivocally competing versions of the critical moments on the night McClennon was 

killed. Statements of critical witnesses for both sides had inconsistencies. Yet only one of 

the versions of events had James as the aggressor. The jury must have accepted that 

version when it convicted him of first-degree premeditated murder, rejecting self-defense 

generally and passing up the opportunity to convict him of voluntary manslaughter on a 

theory of imperfect self-defense. Cumulative error does not require reversal of James' 

convictions. 

CONCLUSION

We affirm the judgment of the district court.