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No. 110,718

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

TRAVIS M. KNIGHTEN,

Appellant.

SYLLABUS BY THE COURT

1.

District courts use a three-step analysis to resolve challenges based on Batson v. 

Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). First, the court must 

determine whether the defendant has made a prima facie showing that the prosecutor 

exercised peremptory challenges on the basis of race. If so, the burden shifts to the 

prosecutor to give race-neutral reasons for striking the prospective jurors at issue. At this 

point, the burden shifts back to the defendant for purposes of proving purposeful 

discrimination. 

2.

To establish a prima facie case of intentional racial discrimination as required in 

the first step of the analysis in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. 

Ed. 2d 69 (1986), the defendant must show that the prosecutor has exercised peremptory 

challenges to remove venire members from the jury and that this fact, along with any 

other relevant circumstances, raises an inference that the government used the 

peremptory challenges to exclude members of the venire panel on account of their race. 

Upon a prima facie showing, the burden shifts to the government to come forward with a 

racially neutral explanation for its peremptory challenges. If the government comes 
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forward with a racially neutral explanation, the district judge then must decide the 

ultimate question of whether the defendant carried his or her burden of proving 

purposeful discrimination. While a Batson claim involves a three-step process, the burden 

of persuasion always remains with the party opposing a peremptory challenge. 

3.

The preliminary issue of whether the defendant has made a prima facie showing 

that the State used peremptory challenges on the basis of race becomes moot if the trial 

court goes on to rule on the ultimate question of discrimination.

4.

The burden to provide race-neutral reasons for striking prospective jurors is only 

one of production, not persuasion, and, unless a discriminatory intent is inherent in the 

answer, the offered reason will be deemed race-neutral.

5.

In order to determine whether the reasons offered by the State for striking certain 

jurors revealed an inherently discriminatory intent or whether the offered reason should 

be deemed race-neutral, the court must necessarily have before it some reason why the 

State decided to strike the jurors. 

6.

The personal nature of a defendant's statutory and constitutional rights to be 

present at all critical stages of a trial means that they cannot be waived by counsel's mere 

failure to object.
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7.

The trial court is statutorily required to respond to all questions from a deliberating 

jury in open court or in writing, and the defendant is required to be present during any 

response if given in open court, unless such presence is waived. 

8.

Under the federal constitutional harmless error test, an error is only harmless 

where the party benefitting from the error persuades the court 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., proves there is no reasonable possibility that the error affected the 

verdict. 

9.

The defendant in a criminal case has a statutory and constitutional right to be 

present during the discussion of any written questions presented by the jury, unless the 

defendant has waived his or her presence. A lack of evidence in the record establishing a 

defendant's presence or his or her waiver requires appellate courts to presume that the 

defendant's rights were violated.

10.

The trial court is statutorily required to instruct the jury on lesser included offenses 

where there is some evidence that would reasonably justify a conviction of the lesser 

included offense. 

11.

Voluntary manslaughter is knowingly killing a human being committed upon a 

sudden quarrel or heat of passion.
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12.

In order to prove voluntary manslaughter, there must have been legally adequate 

provocation. Provocation can be a legal defense to a charge of voluntary manslaughter if 

such provocation is shown to have been calculated to deprive a reasonable person of selfcontrol and to cause the defendant to act out of passion rather than reason. Mere words or 

gestures, however insulting, do not constitute adequate provocation. The test for 

sufficiency of provocation is objective, not subjective.

13.

An appellate court is statutorily precluded from reviewing any sentence that is 

imposed within the presumptive sentence set forth in the applicable grid box.

Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed April 24, 2015. 

Affirmed in part, reversed in part, dismissed in part, and remanded with instructions.

Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant. 

Julie A. Koon and Boyd K. Isherwood, assistant district attorneys, Marc Bennett, district attorney, 

and Derek Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., GREEN, J., and JOHNSON, S.J.

STANDRIDGE, J.: Travis M. Knighten appeals from his convictions for one count 

of second-degree intentional murder and one count of aggravated battery, arguing the 

district court erred in denying his challenge based on Batson v. Kentucky, 476 U.S. 79, 

106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), in failing to require his presence during a critical 

part of the proceedings, and in failing to deny his request for an instruction on the lesser 

offense of voluntary manslaughter. Knighten also argues the district court violated his 

Sixth and Fourteenth Amendment rights by sentencing him without requiring either the 
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aggravating factors or his criminal history score to be proven to a jury beyond a 

reasonable doubt.

FACTS

At around 2 a.m. on May 7, 2011, Carl Meridy, Kedrick Harrison, and Mario 

Brown went to a night club located at the corner of 13th and Hillside in Wichita. When 

they got to the club, it was closed, so they hung out in the parking lot. There were 

approximately 50-80 people in the parking lot at the time. Many people were leaving in 

their cars.

While Meridy was standing in the parking lot, he saw a dark-colored sport utility 

vehicle (SUV) pull up. He and another witness saw a hand holding a gun reach out of the 

front passenger side window of the SUV and fire shots. Meridy was struck by bullets in 

the right leg and the left arm. Brown was also struck by bullets in the back, shoulder, 

chest, and thigh. Brown and Meridy were both transported to a hospital. Meridy was 

treated and survived to testify at trial. Brown ultimately was pronounced dead at 

3:35 a.m.

Witnesses at the scene described the SUV as a black vehicle with a white roof.

They could not provide an exact make and model but told police it looked boxy, like a 

military vehicle. Later, the police recovered security footage belonging to a neighboring 

business and were able to determine that the SUV was a Toyota FJ Cruiser. The police 

identified Addison Buck as the owner of the vehicle. When interviewed, Buck told police 

that she believed her boyfriend, Arthur Gary, had the SUV on the night of the shooting.

The police were not able to immediately locate Gary and believed he may have 

left Wichita. In December 2011, about 7 months after the shooting incident, Detective 

Tim Relph learned that Gary might be back in town. Relph attempted to contact Gary 
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through Buck. Gary later called Relph and agreed to meet him. When they met, Gary told 

Relph that four people were with him in the SUV at the time of the shooting: Jasper 

Gray, Ebony James, Dashawn Robertson, and Knighten. Gary said he was driving and 

Knighten was sitting in the front passenger seat. As they drove through the parking lot of 

the club, someone started walking toward the SUV and gesturing. Gary then saw 

Knighten pull a gun out of his pants pocket and fire it.

Knighten was charged with first-degree murder and aggravated battery. He pled 

not guilty to both counts, and his case proceeded to jury trial. After voir dire concluded, 

both the State and Knighten raised Batson challenges. Knighten's Batson challenge was 

based on the State's decision to strike two of the four potential African-American jurors 

from the jury pool. The State, on the other hand, claimed that Knighten had struck a 

disproportionate number of white males from the jury pool. The district court denied both 

Batson challenges.

At trial, the jury heard testimony from all the passengers in the SUV except 

Knighten. Gary passed away prior to trial, so his preliminary examination testimony was 

read to the jury. Gary testified that he was driving the SUV and Knighten was in the 

passenger seat at the time of the shooting. He said that a man he did not know started 

walking up to the SUV making gestures. He observed Knighten take a gun out of his 

pants pocket and fire it. Gary also stated that after the shooting, Knighten told him that he 

was sorry that the incident had happened in the vehicle.

Ebony testified that she was sitting in the back seat on the passenger side and that 

Knighten was in the front passenger seat. She said she put her head down as soon as she 

heard shots and did not know whether the shots came from inside or outside the vehicle. 

She testified that she never actually saw a gun.
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Jasper testified that she was sitting in the middle of the back seat of the SUV at the 

time of the shooting and Knighten was in the front passenger seat. Jasper said she also 

put her head down as soon as she heard shots and did not see where the shots were 

coming from. This testimony, however, conflicted with earlier statements she made in an 

interview with Relph when she identified Knighten as the individual who fired the 

gunshots. 

Robertson testified that he was in the back middle seat and, like the rest of the 

occupants, confirmed that Knighten was in the front passenger seat. Robertson said that 

when the group got to the parking lot of the club, somebody came up on the SUV like 

"they was feeling some kind of war." Robertson testified that he did not see a gun or 

weapon of any kind in the hands of the person who was approaching the vehicle but that 

the individual was with a large group of guys walking up to the SUV. He testified that 

soon thereafter, Knighten started shooting at them.

Knighten did not testify. But his older sister, Sheronda Knighten, and his cousins, 

Kendra Hunter and Shaquala Horn, all testified that Knighten was babysitting Sheronda's 

daughter on the night of the shooting.

After the close of evidence, Knighten requested that the jury be instructed on 

voluntary manslaughter as a lesser included offense of the first-degree murder charge.

The district court denied the request.

During deliberations, the jury asked two questions in writing. The district court 

held a conference in chambers with the attorneys to discuss the questions and how to

respond. Then, the district court conducted a hearing on the record to discuss the 

proposed answers. Knighten was present at the hearing. During the hearing, the attorneys 

for both sides approved the proposed responses on the record. Knighten's attorney also 

informed the court that he had discussed the matter with Knighten and that Knighten 
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seemed fine with the decision not to object to the answers. The district court judge then 

instructed the bailiff to deliver the written answers to the jury. The jury eventually found 

Knighten guilty of intentional second-degree murder and aggravated battery.

Prior to sentencing, Knighten filed a motion requesting a durational departure 

sentence. The motion was denied. The district court sentenced Knighten to 285 months'

imprisonment for his second-degree murder conviction. It also sentenced him to 9 

months' imprisonment for his aggravated battery conviction. The district court ordered 

that the sentences should run consecutively.

ANALYSIS

On appeal, Knighten claims the district court erred (1) by denying his Batson

challenge without requiring the State to provide race-neutral reasons for striking two 

potential jurors; (2) by failing to include Knighten in its meeting with counsel to discuss

questions asked by the jury during deliberations; (3) by denying his request to instruct the 

jury on the lesser offense of voluntary manslaughter; (4) by sentencing him without 

requiring either the aggravating factors or his criminal history score to be proven to a jury 

beyond a reasonable doubt; and (5) by violating his constitutional rights. We discuss each 

of Knighten's claims of error in turn.

1. Batson challenge

In Batson, the United States Supreme Court determined that the Equal Protection 

Clause forbids the State from challenging potential jurors solely on account of their race. 

476 U.S. at 89. District courts use a three-step analysis to resolve Batson challenges, and 

each step has a distinct standard of review on appeal. State v. McCullough, 293 Kan. 970, 

992, 270 P.3d 1142 (2012).
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First, a defendant must make a prima facie showing that the prosecutor exercised 

peremptory challenges on the basis of race. This court exercises plenary review over this 

question. In the second step, the burden shifts to the prosecutor to give race-neutral 

reasons for striking prospective jurors. In this step, the prosecutor only has the burden of 

production, not persuasion, so unless a discriminatory intent is inherent in the answer, the 

offered reason will be deemed race-neutral. Finally, the district court must determine 

whether the defendant ultimately carried his or her burden of proving purposeful 

discrimination. Appellate courts review the district court's determination for abuse of 

discretion. McCullough, 293 Kan. at 992.

At the beginning of the Batson hearing in this case, the following exchange 

occurred:

"THE COURT: Before we get to the Batson, I will note the State struck two 

black males [and] one Hispanic male. Defense has struck one apparent female. I will note 

the majority of the panel composed is white. I didn't really have a head count on gender.

"Mr. Owens, you raised the Batson issue first. Go ahead, please.

"MR. OWENS [defense counsel]: There were limited numbers of AfricanAmerican potential jurors. I believe there were four. Half of them have been struck. And 

State needs to give a race neutral reason.

"THE COURT: If I find there's a purposeful pattern of discrimination. I will note 

they have also left on [R.H.], number 22, who[] is a black male, as you have as well. And 

[C.E.], number 24, a black female, as you have also. Okay."

A short time later, after discussing the State's reasons for raising its Batson 

challenge, the following exchange occurred:

"THE COURT: You guys really want to throw the panel out and start over brand 

new? If you want to, I'm happy to do it. It won't be me. It will be somebody else. You 

guys want to throw it out, let's throw it out. Your choice, your call.
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"State want to throw the panel out? No, it is your call, Jennifer [Amyx, 

prosecutor], you made the request. Do you want to throw the panel out?

"MS. AMYX: No.

"THE COURT: Do you want to throw the panel out, Mr. Owens?

"MR. OWENS: No.

"THE COURT: Is there really a Batson challenge? Or are we just posturing?

"MS. AMYX: Judge, it is not posturing when the first four come out and then it 

changes so . . .

"MR. OWENS: Just for the record, one of the primary things that I would put a 

minus by boxes would be individuals that appeared to be handgun enthusiasts. Not all of 

those I struck, but they tended to be white males.

"THE COURT: I'm not asking for a race, gender, or any kind of neutral 

explanation at this point. I saw the selection, I saw the individuals, I heard their answers. 

I'm aware that quite honestly on race alone the State wins on the number of strikes to 

minorities.

"I'm not going to find any purposeful pattern or discrimination by either side, and 

I will deny the Batson challenges on both sides. I think what we have is a pretty 

representative jury.

"If either side wants to place race or gender neutral reason on the record, you can. 

I will give you that choice.

"Mr. Owens, you want to add to what you've already said?

"MR. OWENS: No, Your Honor.

"THE COURT: Ms. Amyx.

"MS. AMYX: No, Judge.

"THE COURT: All right. We're closed."

Knighten argues that the district court erred by denying his Batson challenge 

without engaging in the requisite analysis. Specifically, Knighten asserts the district court 

erroneously failed to engage in the first two steps of the Batson analysis and instead ruled 

only on the ultimate question of discrimination set forth in the third step.

To establish a prima facie case of intentional racial discrimination as required in 

the first step of the Batson analysis, the defendant must show that the prosecutor has 
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exercised peremptory challenges to remove venire members from the jury and that this 

fact, along with any other relevant circumstances, raises an inference that the government 

used the peremptory challenges to exclude members of the venire panel on account of 

their race. State v. Edwards, 264 Kan. 177, 193-94, 955 P.2d 1276 (1998) 

(acknowledging that the holding in Batson was expanded by the United States Supreme 

Court in Powers v. Ohio, 499 U.S. 400, 415, 111 S. Ct. 1364, 113 L. Ed. 2d 411 [1991], 

to prohibit striking minority jurors who are a different race or ethnicity than the accused). 

Upon review of the record, it appears the district court did not decide whether Knighten 

made a prima facie showing of race discrimination under Batson. But Knighten argues 

that the preliminary issue of whether the defendant has made a prima facie showing 

becomes moot if the trial court went on to rule on the ultimate question of discrimination. 

See State v. Bolton, 271 Kan. 538, 540-41, 23 P.3d 824 (2001) (citing Hernandez v. New 

York, 500 U.S. 352, 359, 111 S. Ct. 1859, 114 L. Ed. 2d 395 [1991]; Edwards, 264 Kan. 

at 194). The parties do not dispute that the district court in this case did, indeed, rule on 

the ultimate question of discrimination here. Accordingly, we find the issue of whether 

Knighten met his prima facie burden is moot. See Bolton, 271 Kan. at 540-41.

But our finding of mootness with regard to the first step of the Batson test is not 

determinative of Knighten's claim of error on appeal. Specifically, Knighten asserts the 

court abused its discretion by deciding the State did not engage in a purposeful pattern of 

discrimination under the third step without deciding whether the State met its burden to 

produce race-neutral reasons for striking the jurors at issue under the second step. "A 

district court abuses its discretion when: (1) no reasonable person would take the view 

adopted by the judge; (2) a ruling is based on an error of law; or (3) substantial competent 

evidence does not support a finding of fact on which the exercise of discretion is based.

[Citation omitted.]" State v. Smith, 299 Kan. 962, 970, 327 P.3d 441 (2014). Substantial 

competent evidence is that which 
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"'possesses both relevance and substance and which furnishes a substantial basis of fact 

from which the issues can reasonably be resolved. In other words, substantial evidence is 

such legal and relevant evidence as a reasonable person might accept as being sufficient 

to support a conclusion.' (Emphases added.) Drach v. Bruce, 281 Kan. 1058, Syl. ¶ 2, 136 

P.3d 390 (2006), cert. denied 549 U.S. 1278 (2007)." State v. Gonzalez, 290 Kan. 747,

757, 234 P.3d 1 (2010).

To that end, Knighten claims the court erred as a matter of law by deciding the 

State did not engage in purposeful discrimination under the third step without first 

deciding whether the State met its burden of production under the second step. Knighten

also claims the district court erred as a matter of fact because there is no evidence in the 

record, let alone substantial competent evidence, to establish that the State had a raceneutral reason for striking the two African-American jurors. See McCullough, 293 Kan. 

at 992 (the burden to provide race-neutral reasons for striking prospective jurors is only 

one of production, not persuasion and, unless a discriminatory intent is inherent in the

answer, the offered reason will be deemed race-neutral).

In support of his request to remand the matter for a new trial or for a proper

Batson hearing based on this alleged abuse of discretion, Knighten compares the facts in 

his case to those in Bolton. In deciding the Batson issue in Bolton, the district judge stated 

that he relied on a review of his own notes regarding the jurors who were challenged and 

the objections lodged. 271 Kan. at 540. On appeal, the Kansas Supreme Court 

specifically held that "[i]n the typical peremptory challenge inquiry, the decisive question 

will be whether counsel's race-neutral explanation for a peremptory challenge should be 

believed." Bolton, 271 Kan. at 541 (citing Hernandez, 500 U.S. at 365). Upon review of 

the record, however, the Bolton court found no evidence to support a finding that the 

State relied on race-neutral reasons for striking the jurors. Given this lack of evidence, the 

court held there was insufficient evidence upon which to decide whether the reasons 

offered by the State for striking the jurors revealed an inherently discriminatory intent or 

whether the offered reason should be deemed race-neutral. Given appellate courts do not 
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have the opportunity to see or hear examination of the jurors, the court remanded the 

matter to the district court for a Batson hearing. Bolton, 271 Kan. at 544-45.

In this case, the district judge specifically advised the parties during the Batson

hearing that he was "not asking for a race, gender, or any kind of neutral explanation at 

this point." The judge then denied Knighten's Batson challenge, stating, "I saw the 

selection, I saw the individuals, I heard their answers. I'm aware that quite honestly on 

race alone the State wins on the number of strikes to minorities. I'm not going to find any 

purposeful pattern of discrimination by either side." Although the court eventually 

provided the State an opportunity to place race-neutral explanations on the record after

denying Knighten's Batson challenge, the State declined to do so.

As in Bolton, there is insufficient evidence in this record to decide whether the 

State's decision to strike the jurors was discriminatory or race-neutral. In order to 

determine whether the reasons offered by the State for striking the jurors revealed an 

inherently discriminatory intent or whether the offered reason should be deemed raceneutral, we necessarily must have before us some reason why the State decided to strike 

the African-American jurors. The record reveals that the district court relied on its own 

notes and experiences from the jury selection process to determine the ultimate question 

of discrimination instead of asking the State to provide race-neutral reasons for striking 

the African-American jurors. As such, we find the court erred as a matter of law in ruling 

that the State did not engage in a purposeful pattern of discrimination without first 

requiring the State to produce race-neutral reasons. And in the absence of any raceneutral reasons by the State for striking the jurors that it did, we also find the court's 

ruling lacks substantial competent evidence in the record. For both of these reasons, we 

conclude the district court abused its discretion in finding the State did not engage in a 

purposeful pattern of discrimination and, as our Supreme Court did in Bolton, we remand 

this matter for a proper Batson hearing. See Bolton, 271 Kan. at 544-45.
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2. Defendant's presence at all critical stages of trial

Knighten argues the district court violated his constitutional and statutory rights to 

be present at every critical stage of his trial. Although Knighten did not raise this issue 

below, our Supreme Court recently held that the personal nature of a defendant's statutory 

and constitutional rights to be present at all critical stages means that they cannot be 

waived by counsel's mere failure to object. State v. Verser, 299 Kan. 776, 788, 326 P.3d 

1046 (2014). We therefore will address Knighten's argument, which raises a question of 

law over which this court exercises unlimited review. 299 Kan. at 787. 

While deliberating, the jury in this case submitted two written questions to the 

district court through the bailiff. The first question was: "Further define 'great bodily 

harm' [and] does it include gunshot wounds?" The second question was: "Is touching 

physical contact by a bullet?" The district court held a conference in chambers to discuss 

the questions and how to respond. After this conference, the district court conducted a 

hearing on the record to discuss the proposed answers. Knighten was present at the 

hearing. The proposed answers presented by the court at the hearing stated: 

"1. In addition to the definition of 'great bodily harm' provided in instruction 10, Kansas 

does not provide a statutory definition. It is a phrase of common words to be given 

their ordinary meaning by the jury.

"2. Physical contact by a bullet can be considered touching. That is up to the jury's view 

of the evidence."

The attorneys for both sides approved these responses on the record at the hearing. 

Knighten's attorney also informed the court at the hearing that Knighten seemed fine with 

the decision not to object to the answers. The district court judge then instructed the 

bailiff to deliver the written answers to the jury.
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Knighten contends the district court violated his constitutional and statutory rights 

to be present at every critical stage of his trial by (1) improperly providing a written 

answer to the questions instead of providing the answers to the jury in open court with 

him present and (2) improperly excluding him from the initial discussion in chambers 

held to discuss how to answer the two questions from the jury. Under the Sixth 

Amendment to the United States Constitution, a defendant has the right to be present at 

every critical stage of his or her trial. See State v. King, 297 Kan. 955, 968, 305 P.3d 641 

(2013). K.S.A. 2014 Supp. 22-3405(a) similarly provides that a defendant in a felony 

case must be present at every stage of his or her trial. 

a. Written answer

K.S.A. 2014 Supp. 22-3420 sets forth the procedure to be used by a district court 

in answering questions from the jury. The statute was amended during the 2014 

legislative session, and the amendments became effective on July 1, 2014. Although not 

raised by either party, section (d) of the amended statute requires the court to "respond to 

all questions from a deliberating jury in open court or in writing" and the defendant to be 

"present during any response if given in open court, unless such presence is waived."

(Emphasis added.) K.S.A. 2014 Supp. 22-3420(d). Prior to the amendment, the statute 

contained no provision for answering jury questions in writing. See K.S.A. 22-3420(3).

Because subsection (f) of the amended statute expressly states that the amendments set 

forth in K.S.A. 2014 Supp. 22-3420 are procedural in nature and must be construed and 

applied retroactively, the district court's decision to provide a written response to the 

jury's questions does not violate the statute. K.S.A. 2014 Supp. 22-3420(d), (f).

Although no statutory rights are implicated due to the express retroactivity of the 

amendments, the Kansas Supreme Court recently held in Verser that a defendant's rights 

under the Sixth Amendment also are violated if the court provides a written answer to a 

jury question without the defendant present in the jury room when the written answer is 
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received. 299 Kan. at 788-89. We note, however, that the constitutional violation found 

by the court in Verser was inextricably intertwined with its finding of a statutory 

violation under the prior version of K.S.A. 22-3420. Thus, we question whether a

constitutional right under the Sixth Amendment still exists in the absence of an 

underlying statutory right to have the court respond to jury questions verbally in open 

court with the defendant present. We find it unnecessary to answer this question today, 

however, because even if there was a constitutional violation under the facts presented in 

this case, any resulting error was harmless. 

When a defendant suffers a violation of his or her right to be present, Kansas 

courts apply the federal constitutional harmless error test. State v. Gleason, 299 Kan. 

1127, 1182, 329 P.3d 1102 (2014), cert. granted 83 USLW 3290 (2015). Under this test, 

an error is only harmless where the party benefitting from the error persuades the court 

"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., proves there is no reasonable 

possibility that the error affected the verdict." State v. Ward, 292 Kan. 541, 569, 256 P.3d 

801 (2011), cert. denied 132 S. Ct. 1594 (2012) (citing Chapman v. California, 386 U.S. 

18, 87 S. Ct. 824, 17 L. Ed. 3d 705, reh. denied 386 U.S. 987 [1967]). Four factors are 

relevant to this analysis:

"(1) the strength of the prosecution's case; (2) whether the defendant lodged an objection; 

(3) whether the communication concerned some critical aspect of the trial or was instead 

an innocuous and insignificant matter, as well as the manner in which the communication 

was conveyed to the jury; and (4) the ability of a posttrial remedy to mitigate the 

constitutional error." State v. Bowen, 299 Kan. 339, 357, 323 P.3d 853 (2014).

With regard to the first factor relevant to our harmless error analysis, we find the 

prosecution's case here was strong. Every other passenger of the SUV testified that 

Knighten was in the SUV at the time of the shooting, and two passengers testified that 
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they saw Knighten fire the shots that killed Brown and injured Meridy. Therefore, this 

factor weighs in favor of a finding that the error was harmless.

With regard to the second factor, Knighten did not lodge an objection below. This 

also weighs in favor of harmless error.

As to the third factor, we find the substance of the jury's questions related to a

critical aspect of the trial: the elements of aggravated battery. But we also find the

district court's written responses to the jury questions were correct statements of law and 

could not have contributed to the verdict. The jury's questions asked for further definition 

of great bodily harm and if physical contact by a bullet constituted "touching." The court 

responded to the first question by correctly referring the jury to the definition of great 

bodily harm provided in jury instruction 10 and stating that Kansas does not provide a 

statutory definition of great bodily harm. In response to the second question, the court 

correctly responded that "[p]hysical contact by a bullet can be considered touching. That 

is up to the jury's view of the evidence." In its responses, the district court did not 

misstate the law, did not provide additional information, and did not place any emphasis 

on whether the jury should find Knighten guilty or not guilty. 

Regarding the fourth factor, both Knighten and his counsel were aware of the 

procedure used to respond to the jury's questions but chose not to pursue any posttrial 

remedies. Thus, this fourth factor also weighs in favor of harmless error. 

Because none of the factors to be considered in the harmless error analysis weigh 

in favor of Knighten, we conclude beyond a reasonable doubt that the court's decision to 

provide written answers to the jury without Knighten's presence instead of verbal answers 

in open court had no impact on the outcome of the trial and, therefore, was harmless. 
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b. Chambers conference

Next, Knighten contends the district court violated his constitutional and statutory 

rights to be present at every critical stage of his trial by improperly excluding him from 

the initial discussion in chambers held to discuss how to answer the two questions from 

the jury. Because the statutory language clearly expresses the legislature's intent that it be 

applied retroactively, we must utilize the amended statute in conducting our analysis. To 

that end, K.S.A. 2014 Supp. 22-3420(d) specifically requires the defendant to be present 

during the discussion of any written questions presented by the jury, unless the defendant 

has waived his or her presence. Although Knighten does not deny he was present at the 

initial conference in chambers, he alleges we must presume he was improperly excluded 

because there is no evidence in the record affirmatively establishing his presence or his 

waiver. See State v. Jackson, 49 Kan. App. 2d 116, 138-39, 305 P.3d 685 (2013), rev. 

denied 299 Kan. __ (May 29, 2014). We agree that the lack of evidence establishing his 

presence or his waiver requires us to presume that Knighten's rights under K.S.A. 22-

3405 and the Sixth Amendment were violated and constitutes error. See Verser, 299 Kan. 

at 788 (a violation of the procedural requirements set forth in K.S.A. 22-3420 violates 

both K.S.A. 22-3405 and the Sixth Amendment).

Nevertheless, we find this error was harmless. As set forth above, there are four 

factors relevant to deciding whether an error is harmless under the federal constitutional 

harmless error test. See Ward, 292 Kan. at 569 (an error is harmless under the federal 

constitutional harmless error test when the party benefitting from the error persuades the 

court "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., proves there is no reasonable 

possibility that the error affected the verdict"). Again, these four factors are

"(1) the strength of the prosecution's case; (2) whether the defendant lodged an objection; 

(3) whether the communication concerned some critical aspect of the trial or was instead 
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an innocuous and insignificant matter, as well as the manner in which the communication 

was conveyed to the jury; and (4) the ability of a posttrial remedy to mitigate the 

constitutional error." Bowen, 299 Kan. at 357.

To place our discussion of these four harmless error factors in the context

presented here, we reiterate the two questions asked by the jury and initially discussed in 

chambers when Knighten allegedly was not there. The first question was: "Further define 

'great bodily harm' [and] does it include gunshot wounds?" The second was: "Is touching 

physical contact by a bullet?" The answers ultimately provided to the jury were as 

follows: 

"1. In addition to the definition of 'great bodily harm' provided in instruction 10, Kansas 

does not provide a statutory definition. It is a phrase of common words to be given 

their ordinary meaning by the jury.

"2. Physical contact by a bullet can be considered touching. That is up to the jury's view 

of the evidence."

With regard to the first factor relevant to our harmless error analysis, we already 

have found the prosecution's case here was strong. In support of this finding, we noted 

that every other passenger of the SUV testified that Knighten was in the SUV at the time 

of the shooting, and two passengers testified that they saw Knighten fire the shots that 

killed Brown and injured Meridy. Once again, this factor weighs in favor of a finding that 

the error was harmless.

With regard to the second factor, Knighten's attorney participated in the initial 

conference held in chambers but did not lodge an objection to Knighten's alleged 

absence. Thus, this also weighs in favor of harmless error.

As to the third factor, we again find the substance of the jury's questions related to 

a critical aspect of the trial but that the district court's written responses to the jury's
20

questions were correct statements of law and could not have contributed to the verdict. 

Moreover, we find it significant that although there is no affirmative evidence to establish 

that Knighten was present when the court held the conference in chambers to discuss the 

jury's questions and how to respond, the court thereafter conducted a hearing on the 

record to discuss the proposed answers. The record reflects that Knighten was present at 

this hearing. And at that hearing, the court reviewed the proposed answers that ultimately 

were given to the jury in response to its questions, the attorneys for both sides approved 

these responses on the record, and Knighten's attorney informed the court that Knighten 

seemed fine with the decision not to object to the answers. None of the parties objected to 

the content of the answers at that time, and no objection to the content of the answers has 

been raised to date. Given Knighten ultimately did have an opportunity to object and 

provide input on the answers to be given to the jury, this third factor also weighs in favor 

of harmless error. 

Finally, both Knighten and his counsel were aware of the procedure used to 

respond to the jury's questions but chose not to pursue any posttrial remedies. Thus, the

fourth factor also weighs in favor of harmless error. 

Because none of the factors to be considered in the harmless error analysis weigh 

in favor of Knighten, we conclude beyond a reasonable doubt that based on our 

consideration of the four factors, Knighten's alleged absence from the initial conference 

in chambers had no impact on the outcome of the trial and, therefore, was harmless. 

3. Instruction on lesser included offense

At trial, Knighten requested that the jury be instructed on voluntary manslaughter 

as a lesser included offense of first-degree murder. The district court declined to give 

such an instruction, which Knighten now argues was erroneous. K.S.A. 2014 Supp. 22-

3414(3) requires a district court to instruct the jury on lesser included offenses where 
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there is some evidence that would reasonably justify a conviction of the lesser included 

offense. This duty to instruct applies even if the evidence is weak or inconclusive. State v. 

Maestas, 298 Kan. 765, Syl. ¶ 6, 316 P.3d 724 (2014). When an offense includes a lesser 

included crime, failure to instruct on the lesser crime is erroneous only if the instruction 

would have been factually appropriate under K.S.A. 2014 Supp. 22-3414(3). State v. 

Armstrong, 299 Kan. 405, 432, 324 P.3d 1052 (2014). Thus, the standard of review for 

this court is whether, after review of all the evidence viewed in the light most favorable 

to the prosecution, we are convinced that a rational factfinder could have found the 

defendant guilty beyond a reasonable doubt. Armstrong, 299 Kan. at 432-33.

Here, a voluntary manslaughter instruction would not have been factually 

appropriate. Voluntary manslaughter is knowingly killing a human being committed upon 

a sudden quarrel or heat of passion. K.S.A. 2014 Supp. 21-5404(a)(1). In order to prove 

voluntary manslaughter, there must have been legally adequate provocation. Provocation 

is legally adequate to justify a conviction for voluntary manslaughter if it is calculated to 

deprive a reasonable person of self-control and to cause the defendant to act out of 

passion rather than reason. Mere words or gestures, however insulting, do not constitute 

adequate provocation. Finally, the test for sufficiency of provocation is objective, not 

subjective. State v. Vasquez, 287 Kan. 40, 54-55, 194 P.3d 563 (2008). 

Upon review of the record, we find no evidence of any provocation in this case. 

No witness testified that any words were exchanged between the victims and Knighten. 

Robertson did testify that someone in the parking lot was "feeling some kind of war" and 

that prior to the shooting, a large group of guys started walking toward the SUV. 

Robertson affirmatively stated, however, that he did not see a weapon of any kind in 

anyone's hand other than in Knighten's.

Knighten cites Robertson's testimony and argues that the mere act of walking up to 

the SUV in a dark, crowded parking lot establishes some evidence of adequate 
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provocation to justify a conviction for voluntary manslaughter. But even viewed in the 

light most favorable to the prosecution, no evidence appears in the record to suggest that 

any person provoked Knighten. Thus, a jury could not reasonably convict Knighten of 

voluntary manslaughter because no evidence of legally adequate provocation was 

presented to the jury. A voluntary manslaughter instruction would not have been factually 

appropriate under the circumstances presented here. The district court did not err by 

declining to instruct the jury on voluntary manslaughter as a lesser included offense.

4. Use of criminal history to determine criminal history score 

Knighten's presumptive sentence was determined by using his criminal history. He 

argues that his criminal history was not proved to a jury beyond a reasonable doubt, and 

therefore his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 

2348, 147 L. Ed. 2d 435 (2000), were violated. He concedes in his brief that the Kansas 

Supreme Court previously rejected this claim in State v. Ivory, 273 Kan. 44, 41 P.3d 781 

(2002), but states that he includes this argument in order to preserve it for possible federal

review. Consequently, his claim fails. 

5. Use of criminal history within sentencing grid box

Knighten claims that the district court violated his constitutional rights under 

Apprendi by sentencing him to the highest number in the applicable sentencing grid box 

found at K.S.A. 2014 Supp. 21-6804(a). He argues that, in order to do so, the district 

court necessarily relied on aggravating factors that were not proved to a jury beyond a 

reasonable doubt.

First, Knighten misstates the law when he asserts that a district court was required 

to find aggravating factors in order to impose the highest number in the applicable grid 

box under the Kansas sentencing guidelines. K.S.A. 2014 Supp. 21-6804(e)(1) clearly 
23

states that the district court has discretion to sentence a criminal defendant to any 

sentence within the applicable grid box. Further, K.S.A. 2014 Supp. 21-6820(c)(1)

forbids an appellate court from reviewing any sentence within the presumptive sentence 

for the crime charged. In the context of a sentencing challenge similar to Knighten's, the 

Kansas Supreme Court expressly ruled that a sentence which falls within a grid block 

under the Kansas sentencing guidelines may be considered a presumptive sentence and, 

because it is presumptive, appellate courts lack jurisdiction to review it. State v. Johnson, 

286 Kan. 824, 840-42, 190 P.3d 207 (2008). Accordingly, we dismiss Knighten's claim of 

error on this issue.

In sum, we find the district court abused its discretion on the first claim of error 

presented by Knighten; accordingly, we reverse and remand this matter for the sole 

purpose of conducting a proper Batson hearing to determine whether the State met its 

burden to produce race-neutral reasons for striking the jurors at issue under the second 

step of the Batson analysis. In light of that determination, the district court must then 

decide whether the State engaged in a purposeful pattern of discrimination under the third 

step of the Batson analysis. We further find no reversible error with respect to Knighten's 

second claim of error, no error at all with respect to Knighten's third claim of error, and 

no jurisdiction to consider Knighten's fourth and fifth claims of error. 

Affirmed in part, reversed in part, dismissed in part, and remanded for proceedings 

consistent with this opinion.