State v. Becker

459 P.3d 173

STATE of Kansas, Appellee,

v.Anthony Raymond BECKER, Appellant.

No. 118,235

Supreme Court of Kansas.

Opinion filed February 28, 2020

Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause, and Peter Maharry, of the same office, was on the briefs for appellant.

Natalie A. Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for the appellee.

The opinion of the court was delivered by McAnany, J.:

A jury found Anthony Raymond Becker guilty of first-degree premeditated murder. On direct appeal, Becker asserts a claim of prosecutorial error, three claimed errors related to jury instructions, and an illegal sentence of lifetime postrelease supervision.

Upon review, we conclude that (1) the prosecutor did not err in his comments in closing argument; (2) the district court did not commit reversible error in failing to instruct on lesser included crimes and on voluntary intoxication; (3) Becker's newly raised constitutional claims are without merit; and (4) there are not cumulative errors that require reversal; but (5) the district court erred in ordering lifetime postrelease supervision following Becker's indeterminate life sentence.

Accordingly, we affirm Becker's conviction of first-degree murder, but vacate the portion of his sentence ordering lifetime postrelease supervision.

FACTUAL AND PROCEDURAL BACKGROUND

Anthony Becker, Chelsea Sosa, and Chris Boyd spent an afternoon in April 2015 smoking methamphetamine and driving around Dodge City. When they had consumed most of their meth they discussed ways of getting more. Boyd and Sosa were dating at the time. Boyd suggested that Sosa could engage in prostitution as a means of obtaining money to buy more methamphetamine. Sosa was hurt and angered by the idea.

Becker was Sosa's ex-boyfriend, having dated her before Boyd did. Becker knew of the proposal that Sosa engage in prostitution, and he viewed Boyd as having a corrupting influence over Sosa. As a result, Becker planned to do away with Boyd. In order to set up the crime, Becker told Boyd they could find money in his parents' shed, but he would need Boyd's help moving something in order to get to the money. Once they arrived at Becker's parents' house in rural Ford County in the predawn hours of the following morning, Becker and Boyd headed for the shed, with Boyd in the lead. As Becker left the house behind Boyd, he grabbed a loaded pistol from a buffet in the house. When they got to the back of the shed, Becker fired 10 shots at Boyd, striking him 6 times. After Boyd fell to the ground, Becker stomped on Boyd's head to make sure he was dead. Becker walked back to the house, where he told Sosa that he had just killed Boyd. James Schmidt later helped Becker dispose of Boyd's body.

Police found Boyd's body under the Bucklin Bridge in Ford County and later arrested Becker, Sosa, and Schmidt. Becker was interviewed by police officers and he confessed to shooting Boyd. Becker was charged with first-degree premeditated murder and conspiracy to commit first-degree murder. Sosa and Schmidt entered into plea agreements with the State and received probation.

Before trial Becker unsuccessfully challenged the voluntariness of his confession. He does not now challenge that adverse ruling on appeal.

The video recording of Becker's confession was played for the jury during trial and again during deliberations, at the jury's request. In the video Becker recounted the events leading up to Boyd's death and stated: "I shot him." He said he told Boyd there was money hidden in the shed, a lie calculated to lure Boyd to his death. Becker explained he was motivated by the corrupting influence Boyd had over Sosa. Becker said that Schmidt helped him dispose of Boyd's body. The police provided Becker with pen and paper and suggested that he write an apology letter to Boyd's family. Becker did so. He wrote:

"I am undiscribibly [sic ] sorry for what I did to Chris, but I did It to save Chelsea's life. Chelsea means everything to me and what Chris was doing was destroying her. I wish there could have been another way but I did what I needed to do to protect the woman that is my world. There is nothing that can be done to fix It and apology doesn't even come close. But I am sorry."

At the close of all the evidence Becker requested jury instructions on the lesser included crimes of second-degree murder and voluntary manslaughter. Becker also requested an instruction on voluntary intoxication. The court declined to give any of these requested instructions. The court's jury instructions included the directive: "In your fact-finding, you should consider and weigh everything admitted into evidence."

In Becker's closing argument, his counsel attacked Sosa's credibility. He conceded the accuracy of some of her testimony, namely that Boyd wanted Sosa to prostitute herself in order to get money with which they could buy more drugs. But Becker's counsel argued from this that Sosa—rather than Becker—had a motive to kill Boyd.

"We have [Sosa] testifying that she was mad at Boyd because he wanted to pimp her out for methamphetamine. That gives her a motive, ladies and gentlemen. In fact, it was the night that happened where he suggested: Let's sell you for sex so I can have drugs. Shortly thereafter Boyd ended up dead."

Counsel also argued that Sosa had written a letter of apology to Boyd's family, further evidencing her guilt as the one who pulled the trigger. Sosa's letter had been admitted into evidence. She wrote:

"I am sorry truely [sic ] sorry I lied to you and didn't call the cops after this happened. I didn't know what to do or say[.] I've never gone through anything in my life like this[.] I hope you can understand I feared the whole situation. I really did care about Chris and I[']m sorry and completely understand if you despise and hate me."

Moreover, Becker's counsel argued: "Sosa took the stand yesterday in front of you, said, yep, I was charged with first degree murder as well. I made a plea deal for probation."

In the State's rebuttal argument, the prosecutor made reference to the plea agreements the State entered into with Sosa and Schmidt.

"[Becker] told you that James Schmidt was only there to help dispose of the body. And, he also told you that James Schmidt was not there at the time of the murder. He didn't say that specifically in that language, but based on what he told you, Schmidt showed up to help move the body later. Nobody has put James Schmidt at Becker's house when this shooting occurred.

"Now, let's talk about Chelsea Sosa for a minute, and James Schmidt. Both of them were convicted for what they actually did in this case. Both of them got convicted of obstructing apprehension or prosecution. You heard a little bit about what they did to qualify for that.

"Also, James Schmidt was convicted of conspiracy to commit aggravated battery. He said he wanted to severely beat Chris up. But, he didn't do it. That was never done. He did have a stick, but he never completed the aggravated battery. Also, this did not even involve a gun.

"You can think back on the evidence and see if you think there was any evidence to support that [Sosa] or [Schmidt] had any part in murdering Chris.

"And, even if you don't believe Chelsea Sosa, you have the Defendant's statement that contains all the evidence you need to convict him of murder in the first degree.

"This case really boils down to a number of things. Defendant said he shot and killed Chris Boyd. How much or how little meth [Chelsea] Sosa used, doesn't matter. Anything Chris Boyd wanted Chelsea Sosa to do doesn't matter. It does not matter what happened to James Schmidt or Chelsea Sosa as far as their charges in this case.

"During voir dire , do you remember I asked you if you'd be able to consider this case without considering what happened or what was going to happen to Sosa and Schmidt? Now you need to remember that.

"What happened to them, what they pled to or didn't plead to, that is not part of this case.

"It doesn't matter how many people Sosa was having sex with. That's not here. That's not a matter.

"Also, the Defendant wrote an apology letter. Do you apologize if you didn't do something?

"It also doesn't matter if Sosa had positive U.A.'s for meth in the last few days.

"The bottom line in this case is that the Defendant, in his recorded interview, told you how he intentionally killed Chris Boyd. He told you how he did it with meditation—premeditation. You heard the Defendant say I shot him when he was asked about what happened to Chris."

The jury found Becker guilty of first-degree premeditated murder. At sentencing, the district court granted a downward departure from a sentence of lifetime imprisonment with no chance of parole for 50 years (hard 50), to lifetime imprisonment with no chance of parole for 25 years (hard 25). The sentencing court also imposed lifetime postrelease supervision.

Becker's appeal brings the matter before us. This court has jurisdiction over Becker's direct appeal under K.S.A. 2018 Supp. 22-3601(b)(3), (4) (life imprisonment, off-grid crime).

ANALYSIS

The prosecutor's statements in closing argument do not constitute prosecutorial error .

Becker contends the prosecutor's statements regarding what happened to Sosa and Schmidt and "what they pled to or didn't plead to" require reversal and a remand for a new trial.

Standard of Review

We follow the analytic protocol stated in State v. Sherman , 305 Kan. 88, 378 P.3d 1060 (2016), in evaluating claims of prosecutorial error:

"Appellate courts will continue to employ a two-step process to evaluate claims of prosecutorial error. These two steps can and should be simply described as error and prejudice. To determine whether prosecutorial error has occurred, 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

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