State v. Green: Premeditation’s Time-and-Consideration Test Bars Arbitrary-Enforcement Vagueness Claims; Evidentiary Proof Required for Witness “Unavailability”; No Renewed Faretta Colloquy Absent Changed Circumstances

Introduction

In State v. Green (Kansas Supreme Court, June 27, 2025), the court affirmed Dary Jene Green’s conviction and hard-50 life sentence for the premeditated first-degree murder of Angela Gatlin in Kansas City, Kansas. The opinion, authored by Justice Wall, addresses four principal issues: (1) whether the evidence was sufficient to prove premeditation and identity; (2) whether the premeditated first-degree murder statute (K.S.A. 21-5402[a][1]) is unconstitutionally vague because of alleged indistinguishability from intentional second-degree murder; (3) whether a preliminary-hearing transcript could be admitted under the “unavailability” hearsay exception absent evidentiary proof of unavailability; and (4) whether the district court was required to conduct a second waiver-of-counsel colloquy at sentencing after briefly appointing counsel.

Beyond affirming traditional sufficiency principles, the court makes three doctrinally important moves: it confirms that premeditation’s temporal-and-cognitive elements provide explicit standards preventing arbitrary enforcement (resolving a vagueness challenge under the second prong); it reiterates and tightens the evidentiary showing required to establish a witness is “unavailable” for hearsay purposes; and it aligns Kansas practice with federal authority holding that a valid waiver of counsel carries forward absent a substantial change in circumstances. The court also rejects various pro se claims (illegal arrest, Miranda, evidentiary, and prosecutorial error) and includes separate writings by Justices Biles and Standridge that flag ongoing debates about standing and the proper scope of vagueness review.

Summary of the Opinion

Sufficiency of the evidence: The jury could infer premeditation from multiple reasonable inferences, including Green’s racking of a gun with a roughly 12-second pause before shooting, firing two shots at close range while the victim was complying and turning away, flight without rendering aid, and post-crime falsehoods contradicted by surveillance video. The identity evidence (including witness identifications, vehicle recognition, and nickname clarification) was sufficient.
Vagueness challenge rejected: The court holds the premeditated first-degree murder statute is not unconstitutionally vague under the “arbitrary enforcement” prong because premeditation’s two components—time (a moment before the killing) and consideration (thoughtful reflection)—supply explicit enforcement standards. This extends the court’s earlier reasoning in State v. Stanley to the second vagueness hurdle.
Unavailability and hearsay: The district court correctly refused to admit a preliminary-hearing transcript because Green offered only counsel’s representations that the witness (Williams) was out-of-state. Under K.S.A. 60-459(g) and controlling precedent, unavailability requires a good-faith, diligent effort substantiated by evidence, not mere assertions; being “out of state” alone is insufficient.
Waiver of counsel at sentencing: A valid waiver of the right to counsel continues through later proceedings unless intervening events substantially change circumstances such that the earlier waiver can no longer be considered knowing and intelligent. The brief, post-verdict appointment of counsel, followed by Green’s immediate insistence on proceeding pro se, did not require a renewed colloquy.
Pro se assignments of error: The court rejects claims regarding an illegal arrest (probable cause existed and entry was by consent), Miranda (no custodial interrogation or statements admitted), unpreserved evidentiary challenges (barred by K.S.A. 60-404), and alleged prosecutorial misstatement (argument fell within the evidentiary record and permissible latitude).

Analysis

Precedents Cited and How They Shaped the Decision

1) Premeditation and sufficiency

State v. Spencer, 317 Kan. 295 (2023): Reaffirms the standard for sufficiency review—evidence viewed in the light most favorable to the State, with no reweighing or reassessing credibility.
State v. Hilyard, 316 Kan. 326 (2022); State v. Qualls, 297 Kan. 61 (2013); State v. Stanley, 312 Kan. 557 (2020): Define premeditation as a process of thinking about a proposed killing beforehand, clarifying it need not involve long planning; a brief period of thoughtful reflection suffices.
State v. Kettler, 299 Kan. 448 (2014) and State v. Hillard, 315 Kan. 732 (2022): Provide non-exhaustive factors supporting premeditation inferences (nature of weapon, lack of provocation, conduct before/after, threats/declarations, lethal blows after victim is felled), with the principle that one factor alone may be compelling.
State v. Pabst, 268 Kan. 501 (2000); State v. Woods, 301 Kan. 852 (2015); State v. Alvidrez, 271 Kan. 143 (2001): Examples where firearm use, lack of meaningful provocation, multiple close-range shots, flight, failure to render aid, and false statements supported premeditation.

2) Vagueness—explicit standards and arbitrary enforcement

State v. Harris, 311 Kan. 816 (2020): Articulates Kansas’s two “hurdles” for vagueness—(a) fair notice under due process, and (b) explicit standards to prevent arbitrary enforcement, rooted in separation-of-powers concerns. Invalidated a “dangerous or deadly cutting instrument of like character” residual clause for lacking enforceable standards.
Grayned v. City of Rockford (U.S. 1972): Foundational federal precedent on vagueness and the dangers of ad hoc enforcement.
State v. Stanley, 312 Kan. 557 (2020): Upheld the premeditation element against a vagueness attack by distinguishing premeditation (time and consideration) from mere intent; Green leverages Stanley’s logic to defeat the “arbitrary enforcement” prong.
Sperry v. McKune, 445 F.3d 1268 (10th Cir. 2006): Supports the proposition that ordinary persons can discern the difference between intentional killings and intentional killings “with premeditation.”
State v. Stubbs, 320 Kan. ___ (2025): Supplies standing analysis for arbitrary-enforcement challenges to criminal statutes; Justice Biles notes disagreement with Stubbs in a separate writing here.

3) Hearsay/unavailability

K.S.A. 2023 Supp. 60-460(c)(2)(B): Permits admission of preliminary-hearing testimony if the witness is unavailable and the opponent had a similar motive and opportunity to cross-examine.
K.S.A. 60-459(g)(5): Defines “unavailable” to include situations where, despite diligence, the proponent cannot ascertain the witness’s whereabouts.
State v. Keys, 315 Kan. 690 (2022); State v. Plunkett, 261 Kan. 1024 (1997): The proponent must demonstrate good-faith, diligent efforts to secure attendance.
State v. Young, 277 Kan. 588 (2004); State v. Brown, 181 Kan. 375 (1957); State v. Rodriguez-Garcia, 27 Kan. App. 2d 439 (1999): Counsel’s unsworn statements generally do not suffice; evidentiary proof is required.
State v. Vaughn, 254 Kan. 191 (1993): A narrow exception where the court accepted counsel’s statements without asking for evidence; distinguished here because the district court expressly required evidence and gave notice.
State v. Casanova, 181 Kan. 498 (1957): Subpoena returns and nonspecific assertions of out-of-state presence are insufficient to establish unavailability.

4) Waiver of counsel/self-representation

Faretta v. California (U.S. 1975); State v. Burden, 311 Kan. 859 (2020); State v. Vann, 280 Kan. 782 (2006): A defendant has the right to proceed pro se if the waiver is knowing and intelligent after full advisement of dangers and disadvantages.
State v. Bunyard, 307 Kan. 463 (2018); State v. Mattox, 305 Kan. 1015 (2017); State v. Pfannenstiel, 302 Kan. 747 (2015): Right to counsel at critical stages, including sentencing; structural error if violated.
United States v. Hantzis, 625 F.3d 575 (9th Cir. 2010): A valid waiver carries forward unless intervening events substantially change circumstances so the original waiver is no longer knowing and intelligent. The court embraces this approach.
United States v. McBride, 362 F.3d 360 (6th Cir. 2004); United States v. Fazzini, 871 F.2d 635 (7th Cir. 1989); United States v. Unger, 915 F.2d 759 (1st Cir. 1990); Davis v. United States, 226 F.2d 834 (8th Cir. 1955): Parallel federal authority on waiver continuity and when renewal may be necessary.
United States v. Modena, 302 F.3d 626 (6th Cir. 2002); United States v. Tate, 535 Fed. Appx. 359 (5th Cir. 2013): No renewed colloquy required where the defendant briefly sought counsel but promptly returned to self-representation; the record still showed understanding of risks.

5) Pro se claims—arrest, Miranda, evidentiary, and prosecutorial error

Probable cause/warrantless arrest: State v. Hill, 281 Kan. 136 (2006); State v. Miller, 49 Kan. App. 2d 491 (2013); United States v. Pickel, 863 F.3d 1240 (10th Cir. 2017) (imputed probable cause across agencies). Payton v. New York (U.S. 1980) (home entry requires consent or exigent circumstances). State v. Boggess, 308 Kan. 821 (2018) (third-party consent).
Constitutional coextensiveness: State v. Thompson, 284 Kan. 763 (2007) (Kansas); State v. Rushing, 935 S.W.2d 30 (Mo. 1996) (Missouri).
Miranda: Oregon v. Elstad (U.S. 1985); United States v. Patane (U.S. 2004) (warnings are prophylactic; violation occurs upon admission of unwarned statements). State v. Swindler, 296 Kan. 670 (2013); State v. Palacio, 309 Kan. 1075 (2019): Custodial interrogation standard.
Preservation: K.S.A. 60-404; State v. King, 288 Kan. 333 (2009) (contemporaneous objection requirement for evidentiary claims).
Closing argument latitude: State v. Buck-Schrag, 312 Kan. 540 (2020) (broad latitude if tied to the evidence).

Legal Reasoning

A) Sufficiency of the evidence: Precedent-guided inference of premeditation and identity

Applying the Spencer standard, the court canvassed the record in the light most favorable to the State. Multiple pieces of evidence supported premeditation: Green drew and racked his firearm without immediately shooting; a 12-second interval elapsed before the shot; the victim was complying and turning away; two close-range shots were fired; Green fled without rendering aid; and he later offered a false account refuted by surveillance footage. The Kettler factors—lack of meaningful provocation, conduct before and after the killing, and the use of a deadly weapon—were all present, and any one could be compelling. Identity was sufficiently established through testimony associating Green with the SUV, clarifying the “D.J.” nickname, and linking the vehicle in the footage to Green’s Cadillac.

B) Vagueness: Premeditation’s temporal and cognitive elements supply explicit standards

The court accepted review of the unpreserved vagueness challenge under recognized exceptions (pure legal issue and prevention of denial of fundamental rights). Relying on Harris’s two-pronged test and Grayned, the court framed the issue as whether “premeditation” offers explicit standards to prevent arbitrary enforcement despite the legislature’s lack of a statutory definition. Building from Stanley, the court explained that premeditation has two distinct components—time (a moment before the killing) and consideration (thoughtful reflection)—that distinguish it from mere intent. Because those components can be understood and applied by ordinary people, they provide both fair notice and enforceable standards, quelling the risk of ad hoc charging or verdicts. In short, premeditated murder is meaningfully distinct from intentional second-degree murder.

C) Unavailability: Evidentiary proof of diligence is mandatory

Green sought to admit Williams’s preliminary-hearing testimony after he did not appear for trial. The district court required evidence of unavailability beyond counsel’s statements that Williams was out of state, and it noted that no transcript had yet been prepared. Affirming, the Supreme Court emphasized Keys, Plunkett, and Young: the proponent must show good-faith, diligent efforts with evidence (e.g., witness testimony, returns, affidavits documenting exhaustive steps), not mere assertions. Even if counsel’s statements were considered, merely being out of state—without more—was insufficient under K.S.A. 60-459(g)(5). The court also clarified the transcript point: the judge did not rule that Green had to personally pay; rather, the judge described standard transcript practices and timing constraints.

D) Waiver of counsel: No renewed colloquy absent a substantial change in circumstances

After a thorough pretrial Faretta colloquy in 2019, Green tried his case pro se through the 2021 verdict. The day after conviction, the court briefly appointed counsel at Green’s request, but Green immediately filed to “deny services” and proceeded pro se at sentencing. Adopting the Hantzis line of cases, the court held a valid waiver continues unless intervening events substantially change circumstances so the original waiver can no longer be considered knowing and intelligent. The brief appointment did not undermine the original waiver, especially where the record showed Green’s prompt reaffirmation of self-representation, continued understanding of risks, and no increase in sentencing exposure beyond what he had been advised. No renewed colloquy was required.

E) Pro se issues rejected

Illegal arrest: The KCKPD’s pickup order and supporting affidavit established probable cause that was imputed to the arresting KCMO officers. Entry into the home was by spousal consent, obviating Payton concerns. Dismissal of charges is an extraordinary remedy and was not warranted.
Miranda: No custodial interrogation was alleged or shown; no statements were admitted at trial. Even if there were an error, it would be harmless for lack of use at trial.
Evidentiary claims: Unpreserved under K.S.A. 60-404—no contemporaneous objections to the search-derived evidence or to the witness’s contested testimony.
Prosecutorial error: The prosecutor’s references to the wound location and posture were tied to the evidence (autopsy trajectory, witness and detective testimony) and fell within the State’s wide latitude.

Impact

1) Constitutional clarity on premeditation and charging discretion

The court’s express holding that premeditation’s time-and-consideration elements supply “explicit standards” addresses the second vagueness hurdle directly, significantly narrowing future arbitrary-enforcement attacks on K.S.A. 21-5402(a)(1).
Prosecutors can rely on observable markers—pauses, racking or repositioning a weapon, multiple shots, cessation of the confrontation, victim’s posture, and post-offense flight/deception—to justify a first-degree charge. Defense counsel must counter with evidence of instantaneous or impulsive action, lack of any opportunity to reflect, and mitigating circumstances to fit within intentional second-degree.

2) Hearsay/unavailability practice tightened

Counsel’s representations will not suffice; practitioners must build a record of diligent, good-faith efforts using concrete evidence (e.g., process server testimony, certified returns, documented attempts across platforms, contacts with relatives/employers, travel logs, and use of interstate attendance procedures) to satisfy K.S.A. 60-459(g).
Simply agreeing a witness is “out of state” is not enough; the bar for unavailability is meaningful and evidentiary.

3) Faretta waivers: continuity and best practices

Courts have clear authority to treat an earlier, valid waiver as carrying forward through sentencing unless a substantial, circumstances-changing event occurs (e.g., materially increased sentencing exposure, new charges, prolonged delay, new evidence altering risk calculus).
Best practice remains to reaffirm the waiver on the record at key junctures, but Green confirms no automatic re-colloquy is required absent substantive change.

4) Preservation and trial management

K.S.A. 60-404’s contemporaneous-objection rule continues to be strictly enforced. Pro se defendants are held to the same evidentiary preservation standards as licensed counsel; trial courts should advise, but cannot be counsel for, pro se litigants.
Prosecutorial-argument challenges will be measured against the “wide latitude” standard, focusing on whether argument is grounded in the evidence and reasonable inferences.

5) Ongoing debates flagged by concurrences

Justice Biles concurs in the result but reiterates disagreement with the standing analysis in State v. Stubbs, indicating continued debate over who may bring arbitrary-enforcement challenges.
Justice Standridge concurs but would limit vagueness review to as-applied due process analysis absent traditional exceptions justifying facial review, reflecting a narrower approach to invalidating statutes.

Complex Concepts Simplified

Premeditation vs. intent: Intentional second-degree murder requires a conscious intent to kill. Premeditated first-degree murder requires intent plus a separate, earlier moment—however brief—of thoughtful reflection sufficient to allow for a change of mind before the fatal act.
Vagueness “two hurdles” (Kansas framework):
- Fair notice: Does the statute give ordinary people reasonable notice of prohibited conduct?
- Explicit standards: Does it establish clear criteria that constrain police, prosecutors, and courts, thus preventing arbitrary enforcement?
Hearsay and “unavailability” (K.S.A. 60-459[g], 60-460[c][2][B]): Prior testimony may be used only if the witness is truly unavailable and the opponent had a similar prior cross-examination opportunity. “Unavailability” must be proven by evidence of diligent, good-faith efforts, not mere assertions; an out-of-state witness is not automatically “unavailable.”
Faretta/self-representation: A defendant may waive counsel and proceed pro se if the waiver is knowing and intelligent after advisement of risks. Once validly waived, that waiver typically carries through later stages unless circumstances materially change.
Probable cause and imputation: If one agency has probable cause, it may be imputed to another that makes the arrest. Warrantless entries into homes require consent or exigent circumstances.
Miranda: The warnings protect against the admission of unwarned custodial statements. The absence of warnings is not itself a violation unless unwarned statements are used at trial. No interrogation, no Miranda issue.
Preservation (K.S.A. 60-404): Appellate courts generally will not review alleged evidentiary errors unless the party made a timely, specific objection at trial.

Conclusion

State v. Green meaningfully settles three recurring issues in Kansas criminal practice. First, it cements that premeditation’s distinct temporal and cognitive elements are not only sufficient for fair notice but also provide explicit, enforceable standards that defeat arbitrary-enforcement vagueness challenges to K.S.A. 21-5402(a)(1). Second, it underscores that “unavailability” is a fact-driven, evidentiary showing—counsel’s say-so and an out-of-state address do not meet the statutory threshold for admitting preliminary-hearing testimony. Third, it confirms that a valid Faretta waiver persists through subsequent stages absent a substantial change in circumstances; a brief, rescinded appointment of counsel does not trigger a mandatory renewed colloquy.

Along the way, the court reaffirms robust sufficiency analysis for premeditation, enforces strict preservation rules, and applies practical standards to arrest, Miranda, and closing-argument claims. Though the result is affirmance, Green’s doctrinal clarifications will shape charging decisions, trial evidentiary strategy, and judicial management of pro se cases in Kansas for years to come. The separate writings by Justices Biles and Standridge signal active, ongoing dialogue about standing and the scope of vagueness review—issues to watch as Kansas constitutional adjudication continues to evolve.