State v. Berry

Johnson, J.,

concurring: I wholeheartedly agree with the majority’s holding on the issue of lesser included offense instructions *519 in felony-murder cases. Moreover, I acknowledge and applaud the extraordinary effort required to arrive at that decision. Nevertheless, I must respectfully disagree on the causation instruction issue guidance and opine that, at the new trial, the jury should be clearly and explicitly informed of the causation requirement applicable to the felony-murder charge.

In discussing the sufficiency of the evidence to support the felony-murder conviction, the majority refers to two causation requirements. The first one is said to be a requirement that the death must have been within the res gestae of the underlying crime of possessing cocaine (either with or without the intent to sell in this case). That res gestae requirement is described in temporal terms, i.e., acts done before, during, or after the happening of the principal occurrence. See State v. Jackson, 280 Kan. 541, 545 , 124 P.3d 460 (2005). The second requirement is a direct causal connection between the felony — here, possession of cocaine — and the homicide. See State v. Beach, 275 Kan. 603 , Syl. ¶ 3, 67 P.3d 121 (2003) (“there must be a direct causal connection between the commission of the felony and the homicide to invoke the felony-murder rule”).

Subsequently, however, the majority finds that it was not error for the district court to refuse to specifically instruct the jury on the legal causation requirement. Granted, the majority can point to our prior cases in which this court found that the “while in the commission of’ language of the elements instruction in PIK Crim. 3d 56.02 sufficiently informs the jury of the causation requirement. See Jackson, 280 Kan. at 551 (instruction would require juiy to acquit if underlying felony had been completed or abandoned); State v. Ransom, 288 Kan. 697, 713 , 207 P.3d 208 (2009) (PIK Crim. 3d 56.02 sufficiently incorporates the causation requirement).

Notwithstanding those prior cases, the temporal phrase, “while in the commission of,” can, at best, only connote the majority’s res gestae requirement, i.e., “while in the commission of’ might be construed as synonymous with acts done before, during, or after. In no way could a rational juror logically infer from that elements *520 instruction language that there must be a direct causal connection between the felony and the killing.

The need for a causation instruction is particularly illustrated by the facts of this case. The direct and immediate cause of Brown’s death was the physical injury she sustained in the automobile collision. Apparently, that collision was principally caused by Berry’s high-speed, recldess driving. Presumably, Berry was driving at a high rate of speed because he had been chased by a police vehicle with activated emergency lights and siren. The high-speed pursuit was precipitated because Berry drove away from a traffic stop after being asked to produce a driver’s license that had been suspended. The officer made that request after determining that Berry was not committing the traffic infraction for which the traffic stop was initiated, but before forming a reasonable suspicion of any other crime and before the detention evolved into a consensual encounter. See State v. Thompson, 284 Kan. 763, 774-76 , 166 P.3d 1015 (2007) (consensual encounter possible after completion of traffic stop where objectively reasonable person would feel free to leave). Yet, throughout the res gestae — before the traffic stop; during the stop, chase, and collision; and after the killing — Berry possessed cocaine.

The legal requirement of a direct causal connection between the cocaine possession and the death from automobile collision injuries is not intuitively evident from the facts in this case. Without being told that they had to connect the cocaine possession to the chain of causation, the jurors were left with the PIK Crim. 3d 56.02 elements instruction telling them that all that was needed is a temporal connection, i.e., that the death must occur while the felony is being committed. The jury had no basis upon which to reject the prosecutor’s erroneous argument that felony murder only requires the contemporaneous occurrence of the felony and the killing. Accordingly, I would have found that the trial court’s failure to give an instruction on felony murder’s direct causal connection requirement was an independent basis for reversal.

Beier, J., joins in the foregoing concurring opinion.