State v. Johnson: Police Pursuit Without Sirens, the Meaning of “Reckless Driving,” and the Limits of the Specific-vs-General Offense Doctrine in Kansas

Introduction

In State v. Johnson, No. 126,626 (Kan. Nov. 26, 2025), the Kansas Supreme Court addressed a cluster of important criminal-law issues arising out of a robbery, a high-speed flight from police, and a fatal crash in Topeka.

The case squarely presented three core doctrinal questions:

When, for purposes of the felony fleeing or attempting to elude statute (K.S.A. 2019 Supp. 8-1568), does a “police pursuit” end, especially when an officer deactivates emergency lights and sirens?
Must juries be given the statutory definition of “reckless driving” when that term elevates fleeing or eluding from a misdemeanor to a felony?
Is reckless second-degree murder a “more specific” crime than felony murder such that K.S.A. 21-5109(d) requires sentencing on the former instead of the latter?

The court answered all three in ways that will have significant consequences for charging decisions, jury instructions, appellate strategy, and sentencing in Kansas:

Turning off lights and sirens does not automatically end a “pursuit” as a matter of law.
“Reckless driving” is a legal term of art that must be defined for the jury when it is an element of an offense.
Reckless second-degree murder and felony murder are different ways of committing homicide; neither is the “more specific” version of the other under K.S.A. 21-5109(d).

The defendant, Darren Matthew Johnson, was convicted by a jury of felony murder, reckless second-degree murder, felony fleeing or attempting to elude a police officer, and aggravated robbery. On appeal he challenged his felony murder and felony fleeing convictions, asserted instructional and prosecutorial error, invoked cumulative error, and attacked his sentence and a $100 attorney-fee assessment. The Supreme Court affirmed in all respects.

Summary of the Opinion

Facts in brief. Johnson and an accomplice, Jayden Root, robbed their driver, Kyle Sutton, at gunpoint and stole Sutton’s black Kia Soul. Topeka police quickly responded. Officer David Scott spotted the Kia, activated his lights and siren, and attempted a stop. Johnson accelerated away, ran a red light, and Officer Scott lost visual contact. At that point, Scott deactivated his lights and siren and, in compliance with department policy, testified that he was no longer “pursuing” the vehicle, though he continued driving in the direction the Kia had gone. Seconds later, Officer Justin Good, positioned at 21st and Adams, saw the Kia at a very high speed and was in the process of initiating a new pursuit when Johnson lost control and collided with an oncoming vehicle. A rear-seat passenger in the Kia died at the scene.

Charges and verdict. The State charged felony murder predicated on felony fleeing or attempting to elude (an inherently dangerous felony under K.S.A. 21-5402(c)(1)(R)), reckless second-degree murder, felony fleeing or attempting to elude, and aggravated robbery. The jury convicted on all counts. The district court merged the two homicide counts and imposed a “hard 25” (life with 25-year minimum) for felony murder, consecutive 94 months for aggravated robbery, and a concurrent 6-month term for felony fleeing. The court also imposed restitution, court costs, and $100 in Board of Indigents’ Defense Services (BIDS) attorney fees.

Holdings.

Sufficiency of evidence – felony fleeing and felony murder. There was sufficient evidence that Johnson was engaged in felony fleeing or attempting to elude—on the theory that he was “involved in [a] motor vehicle accident” during a “police pursuit” under K.S.A. 2019 Supp. 8-1568(b)(1)(D). That supported the felony-murder conviction.
Pursuit. Turning off lights and sirens does not end a “pursuit” as a matter of law. Whether a pursuit is ongoing is a factual question for the jury.
Instructional error – definition of “reckless driving.” The district court should have defined “reckless driving” (using K.S.A. 8-1566) when that term appeared in the felony fleeing instruction. But because the jury also could and did rely on the alternative “accident” ground for felony fleeing, the omission was not “clearly erroneous” and did not warrant reversal.
Instructional error – lesser included offense. Misdemeanor fleeing or attempting to elude is a lesser included offense of felony fleeing. An instruction on that lesser offense would have been both legally and factually appropriate. But the failure to give such an instruction, not requested by the defense, was not clearly erroneous in light of strong evidence of the felony-level elements.
Prosecutorial error. The prosecutor did not misstate the law of fleeing and eluding and did not impermissibly inflame the jury’s passions. No prosecutorial error occurred.
Cumulative error. Under State v. Waldschmidt, unpreserved instructional errors that are not clearly erroneous do not count toward cumulative error. With no qualifying errors, the cumulative error doctrine did not apply.
Specific vs general offense (K.S.A. 21-5109(d)). Reckless second-degree murder is not a more specific offense than felony murder. The general-vs-specific rule therefore did not require sentencing on reckless second-degree murder instead of felony murder.
Attorney fees (K.S.A. 22-4513). The district court properly considered Johnson’s financial circumstances and the burden payment would impose, and permissibly reduced a $10,225 fee request to a $100 BIDS fee. That limited assessment complied with K.S.A. 22-4513(b) and was not an abuse of discretion.

The Supreme Court affirmed Johnson’s convictions, sentence, and the attorney-fee order.

Detailed Analysis

I. Factual and Procedural Background

The factual narrative is straightforward but essential to understanding the legal issues.

Johnson arranged a ride with Sutton in the early morning hours; Root joined as a passenger.
After a stop at a gas station, they went to Root’s house. As they walked toward the house, Johnson and Root attacked Sutton from behind, robbed him at gunpoint, and drove off in his Kia Soul, with Johnson driving.
Sutton immediately reported the robbery to officers responding to a nearby house fire; he provided a description of the vehicle.
Officer Scott spotted the Kia, activated lights and sirens, and attempted to initiate a traffic stop. Johnson accelerated away and ran a red light turning onto 21st Street. Scott lost sight of the Kia and, pursuant to policy, deactivated lights and siren and testified he was no longer “pursuing” the vehicle, although he continued driving in the same direction at normal speed.
Within seconds, Officer Good—stationed at 21st and Adams—saw the Kia traveling westbound at a very high rate of speed. As Good activated lights and siren to pursue, Johnson lost control and collided with another vehicle. Data from the airbag control module showed the Kia traveling 87 mph five seconds before the crash.
Johnson and Root exited the crashed Kia. A third passenger was found unresponsive in the back seat and pronounced dead at the scene.

The State charged felony murder (predicated on felony fleeing or attempting to elude), reckless second-degree murder, felony fleeing or attempting to elude, and aggravated robbery. At trial, the State advanced two theories for elevating fleeing to a felony under K.S.A. 2019 Supp. 8-1568(b)(1): Johnson (1) engaged in “reckless driving” and (2) was involved in a motor vehicle accident during a police pursuit. The jury convicted on all counts. The district court merged the homicide convictions, sentenced on felony murder, and imposed reduced BIDS fees.

On appeal, Johnson focused on:

the sufficiency of evidence that the crash occurred during a “police pursuit,”
the absence of a “reckless driving” definition and of a misdemeanor fleeing lesser-included instruction,
alleged prosecutorial misconduct,
the applicability of K.S.A. 21-5109(d) to homicide sentencing, and
the legality of the $100 attorney-fee assessment.

II. Precedents Cited and Their Influence

A. Sufficiency of the Evidence and Pursuit: State v. Ervin and State v. Barnes

State v. Barnes, 320 Kan. 147, 563 P.3d 1255 (2025) – cited for the familiar sufficiency standard: evidence is viewed in the light most favorable to the State, and the question is whether a rational factfinder could have found guilt beyond a reasonable doubt. Appellate courts do not reweigh evidence or reassess credibility.
State v. Ervin, 320 Kan. 287, 566 P.3d 481 (2025) – a cornerstone case on the meaning of “pursuit” in the felony fleeing statute. The defendant in Ervin fled an officer but crashed after officers deactivated lights and sirens upon being told to end the pursuit. On appeal, Ervin argued the jury should have received a definition of “pursuit” stating that turning off emergency equipment necessarily ended a pursuit.

The Court in Ervin held:

“Pursuit” has a common meaning and need not be defined by instruction.
Ervin’s proposed definition was improper because it added advocacy points, including the assertion that if emergency equipment is off, there is no pursuit.
Whether a pursuit is ongoing is a question of fact for the jury based on the totality of circumstances.

In Johnson, the Court builds on Ervin to make a key doctrinal clarification:

“[T]he cessation of lights and sirens in a high-speed chase does not end a pursuit as a matter of law for purposes of K.S.A. 2019 Supp. 8-1568. It may support an argument that a pursuit ended, but it does not necessarily settle the matter.”

The Court distinguished Ervin factually: there, officers had essentially abandoned efforts to stop the defendant when the crash occurred; here, Officer Scott continued moving in the same direction to locate and apprehend Johnson, and Officer Good initiated an overlapping second pursuit. This clarification is central to both the sufficiency holding and the prosecutorial-error analysis.

B. Jury Instructions and Undefined Terms: Norris, Robinson, Z.M., Ervin, Thille, Berkstresser, Couch

State v. Norris, 226 Kan. 90, 595 P.2d 1110 (1979) – established the baseline that not every word in jury instructions must be defined; only when the instructions as a whole would mislead the jury or cause speculation must additional terms be defined. A term “widely used and readily comprehensible” needs no definition.
State v. Robinson, 303 Kan. 11, 363 P.3d 875 (2015) – reaffirmed Norris and held “common scheme” and “course of conduct” needed no definition where they were not statutorily defined and were easily understood.
State v. Z.M., 319 Kan. 297, 555 P.3d 190 (2024) – addressed undefined terms in aiding-and-abetting instructions and again relied on the “common usage” principle; “mental culpability” was seen as having a common meaning and needing no special definition.
State v. Ervin, 320 Kan. 287 – as mentioned, held that “pursuit” (not statutorily defined) has a common meaning and need not be defined.
State v. Thille, 320 Kan. 435, 570 P.3d 18 (2025) – central for the “clearly erroneous” standard: when a defendant fails to object to an instruction, reversal is warranted only if the defendant firmly convinces the court that the jury would have reached a different result without the error.
State v. Berkstresser, 316 Kan. 597, 520 P.3d 718 (2022) – established that a lesser-included instruction is factually appropriate when some evidence, viewed in the defendant’s favor, could reasonably justify a conviction on the lesser offense.
State v. Couch, 317 Kan. 566, 533 P.3d 630 (2023) – confirmed that jury instructions on lesser-included offenses are generally legally appropriate and that factual appropriateness turns on whether the evidence would support a conviction on the lesser offense.

Johnson uses these precedents to draw a crucial line: terms that the Legislature has defined (such as “reckless driving” in K.S.A. 8-1566) are different from undefined, commonly used terms like “pursuit,” “mental culpability,” or “common scheme.” The former are legal terms of art that typically require jury-definition when used as elements of offenses.

C. Prosecutorial Error: J.L.J., Sherman, Longoria, Finley, Thomas, Cravatt, Buck-Schrag

State v. J.L.J., 318 Kan. 720, 547 P.3d 501 (2024) – sets out the modern test for prosecutorial error: first, determine whether the challenged action falls outside the wide latitude afforded prosecutors; second, if error, assess prejudice. Also confirms that claims based on closing-argument comments are reviewable even without contemporaneous objection.
State v. Sherman, 305 Kan. 88, 378 P.3d 1060 (2016) – foundational case articulating the wide latitude standard.
State v. Longoria, 301 Kan. 489, 343 P.3d 1128 (2015) – emphasizes that a prosecutor may draw reasonable inferences but must not misstate evidence or law or inflame jurors’ passions.
State v. Thomas, 311 Kan. 905, 468 P.3d 323 (2020) – stresses that prosecutions must not invite jurors to decide cases based on emotions or external considerations; the jury’s task is a calm, dispassionate evaluation of evidence and law.
State v. Finley, 268 Kan. 557, 998 P.2d 95 (2000) – held it improper for prosecutors to urge conviction to protect the community (e.g., “we cannot tolerate this kind of drug use in our community”).
State v. Finley, 273 Kan. 237, 42 P.3d 723 (2002) – clarified that comments asking the jury not to let the defendant “get away with the crime” are generally permissible.
State v. Cravatt, 267 Kan. 314, 979 P.2d 679 (1999) – approved prosecutor’s request, “Don’t let him get away with it,” as an appropriate appeal to hold the defendant accountable based on the evidence.
State v. Buck-Schrag, 312 Kan. 540, 477 P.3d 1013 (2020) – in addition to attorney-fee issues, condemned “send a message to the community” arguments.

Drawing on these cases, the Court in Johnson concludes that the prosecutor’s remarks—framing the case as about “holding people accountable” and “someone needs to be held responsible”—fell within acceptable advocacy, in contrast to impermissible “protect the community” rhetoric.

D. Cumulative Error and Stare Decisis: Showalter, Waldschmidt, Clark, Bentley

State v. Showalter, 318 Kan. 338, 543 P.3d 508 (2024) – describes cumulative error: individually harmless errors may collectively deny a fair trial; if any error is constitutional, prejudice must be shown beyond a reasonable doubt.
State v. Waldschmidt, 318 Kan. 633, 546 P.3d 716 (2024) – critically holds that unpreserved instructional issues that are not clearly erroneous do not count in cumulative-error analysis.
State v. Clark, 313 Kan. 556, 486 P.3d 591 (2021) – restates Kansas’s robust version of stare decisis: the court will overturn precedent only if clearly convinced the earlier rule was originally erroneous or is no longer sound and that more good than harm will result.
State v. Bentley, 317 Kan. 222, 526 P.3d 1060 (2023) – illustrates that an argument to overturn precedent must confront the “more good than harm” requirement; lacking that, the claim is waived as inadequately briefed.

Johnson asked the Court to overrule Waldschmidt. Citing Clark and Bentley, the Court declines, noting that Johnson failed to explain why overturning Waldschmidt would yield more good than harm. As a result, the two unpreserved, non–clearly erroneous instructional issues could not be aggregated for cumulative error.

E. Specific vs General Offenses: Ruiz, Euler, Alston, Stohs, Casteel, Jackson, Helms, Hudgins, Williams, Toothman

State v. Ruiz, 317 Kan. 669, 538 P.3d 828 (2023) – explains that K.S.A. 21-5109(d) was intended to codify the earlier Kansas “general vs specific” case law.
State v. Euler, 314 Kan. 391, 499 P.3d 448 (2021) – questioned the doctrine’s origins and consistency but recognized that the Legislature has since codified it in 21-5109(d).
State v. Alston, 318 Kan. 979, 551 P.3d 116 (2024) – applied 21-5109(d) and held that aiding-and-abetting first-degree murder and conspiracy to commit first-degree murder involved different conduct; neither was more specific than the other.
State v. Stohs, 63 Kan. App. 2d 500, 531 P.3d 533 (2023) – held that interference with a law enforcement officer was not more specific than identity theft; they prohibited different conduct.
State v. Casteel, No. 127,236, 2025 WL 1671998 (Kan. App. 2025) (unpublished) – found that attempted voluntary manslaughter was not more specific than aggravated battery.
State v. Jackson, No. 127,841, 2025 WL 2427732 (Kan. App. 2025) (unpublished) – concluded that battery on a corrections officer is not more specific than aggravated battery; the statutes target different conduct.
State v. Helms, 242 Kan. 511, 748 P.2d 425 (1988) – pre-codification case holding that indecent liberties with a child was not more specific than rape because rape contained an element missing from indecent liberties.
State v. Hudgins, 301 Kan. 629, 346 P.3d 1062 (2015) – held DUI manslaughter was not more specific than felony murder; again, the offenses prohibited different conduct.
State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992) – held aggravated incest was more specific than indecent liberties with a child because the former prohibited identical conduct but added an additional relational element (specific victim relationship).
State v. Toothman, 310 Kan. 542, 448 P.3d 1039 (2019) – held that a modified version of aggravated incest was not more specific than aggravated criminal sodomy or rape because those crimes criminalized different (and otherwise unlawful) conduct.

These cases collectively stand for the proposition that a “more specific” crime must (1) prohibit the same conduct as the “general” crime and (2) add some further narrowing element (e.g., victim class or circumstance). If the statutes criminalize different kinds of conduct, 21-5109(d) does not apply.

Johnson extends this reasoning explicitly to homicide:

Felony murder: killing a human being in the commission of, attempted commission of, or flight from an inherently dangerous felony (K.S.A. 21-5402(a)(2)).
Reckless second-degree murder: unintentional but reckless killing under circumstances manifesting extreme indifference to human life (K.S.A. 21-5403(a)(2)).

The Court holds that neither offense is a subset of the other; they are alternative ways of committing homicide, not general and specific versions of the same proscribed conduct.

F. Attorney Fees: Buck-Schrag, Huggins, Robinson

State v. Buck-Schrag, 312 Kan. 540 – in addition to its prosecutorial-error holdings, confirms that appellate review of statutory compliance with K.S.A. 22-4513 is unlimited, while the amount imposed is reviewed for abuse of discretion. Buck-Schrag also approved a fee assessment where the district court expressly considered the defendant’s ability to work in prison and the resulting financial burden.
State v. Huggins, 319 Kan. 358, 554 P.3d 661 (2024) – vacated attorney fees where the district court imposed them without any on-record consideration of financial resources and burden.
State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006) – stressed that courts must explicitly state on the record how they considered the defendant’s resources and the burden of repayment, to facilitate meaningful appellate review.

In Johnson, the district court followed the Buck-Schrag model: it explicitly acknowledged Johnson’s long incarceration, partial earning capacity in prison, and the hardship full fees would impose, then reduced BIDS fees from the requested $10,225 to $100. The Supreme Court deemed this procedure compliant with K.S.A. 22-4513(b).

III. The Court’s Legal Reasoning, Issue by Issue

A. Sufficiency of Evidence for Felony Fleeing and Felony Murder

Under K.S.A. 2019 Supp. 8-1568(a)(1)(B), misdemeanor fleeing or attempting to elude occurs when a driver willfully fails or refuses to stop for a police vehicle after a visual or audible signal. Subsection (b)(1) elevates the offense to a felony if the driver commits certain acts “during a police pursuit”, including:

(C) engaging in reckless driving (as defined in K.S.A. 8-1566), or
(D) being involved in any motor vehicle accident.

Johnson conceded that the elements of misdemeanor fleeing or attempting to elude were met, and he did not dispute that he drove recklessly and was in an accident. His core argument was temporal: the reckless driving and the accident occurred after Officer Scott ended the pursuit by deactivating his lights and siren, and before Officer Good formally began his; thus, these acts did not occur “during a police pursuit.”

The Court rejected this argument, emphasizing:

The meaning of “pursuit” is guided by Ervin: it has a common meaning; turning off emergency equipment is relevant evidence but not legally dispositive.
Officer Scott continued driving in the same direction, still seeking to locate and apprehend Johnson. This conduct could reasonably be viewed as a continued pursuit, even if not labeled such under department policy.
Officer Good began his own pursuit mere seconds later, nearly contemporaneous with the crash.

Viewed in the light most favorable to the State, a reasonable juror could find that a “police pursuit” was ongoing at the time of the crash. That sufficed under the (b)(1)(D) “accident” prong to support the felony fleeing conviction. Because felony fleeing is statutorily designated an inherently dangerous felony (K.S.A. 21-5402(c)(1)(R)), its commission during the crash provided the predicate for felony murder under K.S.A. 21-5402(a)(2).

Once the underlying felony was upheld, the felony murder conviction followed: the killing occurred “in the commission of” or during “flight from” that inherently dangerous felony.

B. Instructional Error 1: Failure to Define “Reckless Driving”

The felony fleeing instruction required the State to prove, among other elements, that Johnson “was involved in a motor vehicle accident or engaged in reckless driving.” However, the court did not instruct the jury on the statutory definition of “reckless driving” found in K.S.A. 8-1566:

“Reckless driving” means driving “in willful or wanton disregard for the safety of persons or property.”

The Court’s analysis proceeded in three steps.

1. Legal appropriateness

The question was not merely whether the statutory definition would be accurate, but whether it was necessary for the instructions to accurately and clearly reflect the law. The Court reasoned:

Terms like “pursuit,” “mental culpability,” and “common scheme” were previously held not to require definitions because they were not statutorily defined and were widely understood.
In contrast, “reckless driving” is explicitly defined by statute and cited in K.S.A. 2019 Supp. 8-1568(b)(1)(C), signaling it is a legal term of art with a specific, codified meaning.
Pattern jury instructions (PIK Crim. 4th 66.110) recognize that “reckless driving” should be defined by reference to K.S.A. 8-1566.

Therefore, “reckless driving” was not a term with such a common meaning that it needed no definition, and it would have been legally appropriate—indeed, correct practice—to include the statutory definition in the instructions.

2. Factual appropriateness

Factual appropriateness typically asks whether evidence supports giving a particular instruction. Here, however, the issue was not whether a “reckless driving” theory was supported, but whether the word “reckless driving” itself required definition. On that narrow question, the usual factual-appropriateness inquiry was unnecessary; the Court treated the issue as a pure question of legal adequacy.

3. Reversibility / Clear error

Because Johnson did not raise this objection at trial, the standard was whether the omission was “clearly erroneous”—i.e., whether the Court was firmly convinced that the jury would have reached a different verdict had the correct definition been given.

Johnson argued that jurors, applying a common-sense understanding, might treat mere speeding and running a red light as “reckless driving,” whereas if they had been given the statutory definition requiring “willful or wanton disregard,” they would have concluded that his pre-crash conduct did not rise to that level. He further suggested that if such minimal misconduct qualified as “reckless driving,” the separate “five moving violations” provision in K.S.A. 8-1568(b)(1)(E) would be undermined.

The Court avoided the need to resolve these substantive arguments. It had already upheld the felony fleeing conviction under the independent “accident during a pursuit” prong, K.S.A. 8-1568(b)(1)(D). Because the jury could validly convict based solely on the accident theory:

Even if jurors had rejected reckless driving under a proper definition, the conviction would stand on the accident basis.
Thus, Johnson could not firmly convince the Court that the outcome would have been different with a correct definition.

Result: the omission of the reckless-driving definition was error but not clearly erroneous, and therefore not reversible.

C. Instructional Error 2: No Lesser-Included Instruction on Misdemeanor Fleeing

Johnson further argued the district court should have instructed the jury on misdemeanor fleeing or attempting to elude as a lesser included offense of felony fleeing. The State conceded both legal and factual appropriateness:

Legally, misdemeanor fleeing is a lesser degree of the same offense defined in K.S.A. 8-1568.
Factually, evidence supported a conviction on misdemeanor fleeing (Johnson’s initial willful refusal to stop after being signaled by Officer Scott).

Since Johnson did not request the instruction or object to its omission, the clear-error standard again controlled. He argued that, had the misdemeanor option been available and given the disputed nature of the “pursuit” at the time of the crash, jurors might have chosen the lesser offense.

The Court rejected this, emphasizing the strength of the evidence that:

a pursuit was ongoing at the time of the crash, and
Johnson was involved in a motor vehicle accident during that pursuit.

Given this evidence, the Court could not be firmly convinced the jury would have rejected the felony and chosen the misdemeanor. Accordingly, the failure to instruct on the lesser included offense, while error in the abstract, was not clearly erroneous in this context.

D. Prosecutorial Error: No Misstatement of Law, No Improper Appeals to Passion

1. Alleged misstatement of the law on fleeing and eluding

Johnson claimed the prosecutor incorrectly suggested he could be committing felony fleeing even when no officer was actually pursuing him and that the pursuit, once initiated, did not need to be continuous. He pointed to remarks such as:

“He never stopped running from the cops. The minute he saw Officer Scott he took off, he fled, he was eluding him until when? Until he crashed.”

“Now does that mean the defendant is no longer fleeing? No. Absolutely not. He is still fleeing. There's nothing in the instruction that requires the pursuit to be continuous until its end. Just that it's initiated and it clearly was.”

The Court viewed these comments in context and concluded they accurately reflected the State’s two complementary theories:

Primary theory: The pursuit never actually ceased in the statutory sense. Officer Scott, though complying with policy by switching off lights and siren, continued efforts to locate and apprehend Johnson, and Officer Good immediately picked up the chase. Thus, the temporal gap was more apparent than real.
Alternative theory: Even if the formal pursuit had ended, Johnson had already committed felony fleeing during the earlier high-speed, reckless segment of the chase.

The Court read the prosecutor’s argument as tracking these legally valid positions, rather than as asserting that fleeing can be committed without any pursuit at all. No misstatement of law occurred.

2. Alleged inflammatory rhetoric

Johnson also objected to comments suggesting that “someone needs to be held responsible” for the death and that the jury should not “fall on a smaller sword.” He asserted these statements invited decisions based on emotion and a generalized desire for accountability rather than careful application of law to facts.

The Court, citing Finley, Cravatt, Buck-Schrag, and Thomas, distinguished between:

Improper appeals to protect the community, send a message, or punish “bad people” regardless of the specific evidence; and
Permissible arguments that urge jurors not to let the defendant “get away with” proven criminal conduct.

The prosecutor’s remarks were firmly in the latter category. They were tethered to the evidence and the charged offenses and urged jurors to find Johnson guilty because the evidence supported conviction for serious homicide charges, not because of generalized community fears or moral condemnation divorced from the record. The passing reference to officers “looking for the bad guys” was brief, contextual, and not framed as a basis for conviction.

Accordingly, no prosecutorial error was found, and the prejudice inquiry under the prosecutorial-error framework was unnecessary.

E. Cumulative Error: Limited by Waldschmidt

Cumulative error considers whether multiple individually harmless errors, taken together, deprived the defendant of a fair trial. But under State v. Waldschmidt, unpreserved instructional errors that are not clearly erroneous are not considered in cumulative-error analysis.

In Johnson’s case:

The only identified errors were the two instructional omissions (no reckless-driving definition; no misdemeanor fleeing lesser instruction).
Both were unpreserved and found not to be clearly erroneous.
No prosecutorial or other trial error was found.

Under Waldschmidt, there was thus no error to aggregate. Johnson urged the Court to overturn Waldschmidt, but the Court, applying Clark and Bentley, held he had not satisfied the demanding stare decisis standard and treated the argument as waived.

F. Specific vs General Offenses: Reckless Second-Degree Murder vs Felony Murder

After conviction, the State moved to merge Johnson’s reckless second-degree murder conviction into his felony murder conviction. The district court merged them and sentenced on felony murder alone.

On appeal, Johnson argued this sentencing choice violated K.S.A. 21-5109(d), which provides that when the same conduct violates both a general and a more specific criminal statute:

(1) The defendant may not be convicted of both; and
(2) the defendant “shall be sentenced according to the terms of the more specific crime.”

His theory: reckless second-degree murder is more specific than felony murder because it ties the death directly to a culpable mental state—reckless indifference—whereas felony murder requires no culpable mental state as to the killing.

The Court rejected this argument based on the text and structure of 21-5109(d) and the body of Kansas caselaw interpreting the general-vs-specific doctrine:

The statute applies only “when crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.”
This means the more specific crime must prohibit identical conduct, plus some narrower element (e.g., the victim is a child or family member, or the act occurs in a particular context), as seen in Williams (aggravated incest vs indecent liberties).
Felony murder and reckless second-degree murder do not fit this pattern. They are not the same conduct with a layered mental state; they are two distinct modes of homicide:
- Felony murder focuses on the commission (or flight from) an inherently dangerous felony, with no mental-state requirement regarding the death itself.
- Reckless second-degree murder focuses on the manner of causing death: unintentional but reckless, under circumstances manifesting extreme indifference.
Neither statute is a narrowing of the other’s proscribed conduct; they simply describe different paths to criminal homicide.

Drawing parallels to Alston, Stohs, Casteel, Jackson, Hudgins, and Toothman, the Court held K.S.A. 21-5109(d) inapplicable. Accordingly, the sentencing court acted lawfully in merging the reckless second-degree murder conviction into felony murder and imposing the felony-murder sentence.

G. Attorney Fees: Proper On-Record Consideration of Hardship

K.S.A. 22-4513(a)–(b) requires a sentencing court to order reimbursement to BIDS but instructs that:

“In determining the amount and method of payment of such sum, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose.”

The Court’s precedents (particularly Robinson, Buck-Schrag, and Huggins) demand an explicit, on-the-record explanation of how the court considered ability to pay and hardship. Without that, appellate review is impossible and fee orders must be vacated.

Here, the district court:

Noted that Johnson faced a very long sentence (“possibly life”),
Found that assessing full BIDS fees would pose a “manifest hardship,”
Recognized he would have some earning capacity in prison, and
Substantially reduced the BIDS request from $10,225 to $100.

This reasoning is materially similar to that upheld in Buck-Schrag, and contrasts sharply with the absence of any reasoning in Huggins. The Court therefore held the procedure compliant with K.S.A. 22-4513(b) and the amount within the district court’s discretion.

Impact and Future Significance

A. Police Pursuits and Felony Fleeing (K.S.A. 8-1568)

The Court’s holding that deactivation of lights and sirens does not automatically terminate a “pursuit” is highly significant:

For law enforcement and prosecutors: Departmental policies restricting active high-speed pursuits (e.g., requiring deactivation of emergency equipment after losing visual contact) do not necessarily prevent a finding of “pursuit” for purposes of felony fleeing. Officers who continue to drive in the suspect’s direction to locate or intercept the vehicle may still be considered in pursuit.
For defense counsel: Challenges to the temporal link between alleged felony-level conduct (reckless driving, accidents, roadblocks, etc.) and a police pursuit will require detailed factual development and expert cross-examination of officers. However, the notion that “lights off equals no pursuit” is foreclosed as a matter of law.
For juries: Whether a pursuit existed or continued is a factual question; jurors must assess the totality of circumstances, including the officers’ intent (to overtake and apprehend) and conduct, not simply the status of emergency equipment.

B. Jury Instructions: Statutory Definitions as Legal Terms of Art

The decision clearly signals that when the Legislature defines a term and incorporates it as an element of a crime (e.g., “reckless driving” in 8-1568(b)(1)(C)), that term should ordinarily be defined for the jury. This has several practical effects:

Trial judges should be cautious about assuming that legally defined terms have a “common meaning” that can be left undefined; failing to provide the statutory definition could produce reversible error in closer cases.
Prosecutors should request definitions of statutory terms of art whenever they serve as elements, particularly where the pattern instructions (PIK) so indicate.
Defense attorneys should preserve objections when such definitions are omitted; had Johnson preserved his objection and the accident theory been weaker or absent, the failure to define “reckless driving” might have had greater appellate traction.

C. Lesser-Included Instructions and the “Clearly Erroneous” Barrier

The Court’s treatment of the omitted misdemeanor fleeing instruction reinforces two important realities of Kansas practice:

There is a liberal policy in favor of giving lesser-included instructions when supported by the evidence (Berkstresser, Couch), especially in homicide and serious felony cases.
However, when defense counsel fails to request those instructions, the “clearly erroneous” standard makes reversal difficult. Defendants must show a high probability the jury would have convicted on the lesser if it had been available.

Together with Waldschmidt, Johnson underscores the importance of proactively requesting lesser-included instructions and objecting to their omission. Absent preservation, appellate courts will rarely reverse on such grounds.

D. Felony Murder vs. Reckless Second-Degree Murder: Charging and Sentencing Strategy

By holding that reckless second-degree murder is not a “more specific” offense than felony murder, the Court preserves prosecutors’ ability to:

Charge both felony murder and reckless second-degree murder for the same homicide, and
Secure a felony-murder sentence rather than a potentially lower-range second-degree sentence, subject to merger of convictions to avoid multiplicity.

Defense attempts to use 21-5109(d) to force sentencing on a homicide theory with a more favorable range—but arising from the same act—will face an uphill battle unless the “specific” statute truly criminalizes the same conduct with a narrowing element (as in Williams with aggravated incest vs indecent liberties).

The decision therefore reinforces the breadth and independence of Kansas’s felony-murder rule, especially in vehicular homicide contexts involving inherently dangerous felonies such as felony fleeing.

E. Cumulative Error After Waldschmidt: Preservation Is Critical

Johnson reaffirms that unpreserved instructional errors, if not clearly erroneous, are effectively off-limits for cumulative-error stacking. The practical message:

Defense counsel must object to instructions and request appropriate clarifications or lesser-included instructions on the record.
Failing to do so severely limits appellate options; even multiple small but meaningful flaws cannot be aggregated into cumulative error unless they either are preserved or rise to the level of clear error.

F. Attorney Fees: A Template for Lawful Reduction

Finally, the attorney-fee ruling offers a clear template for sentencing judges:

Explicitly note the defendant’s sentence length, earning potential (including in-prison work), and other financial obligations (e.g., restitution, court costs).
State on the record how these factors affect the ability to pay and the burden imposed.
Use that analysis to justify either imposing full fees, reducing them (as in Johnson and Buck-Schrag), or waiving them.

This ensures compliance with K.S.A. 22-4513(b) and reduces the likelihood of fee orders being vacated on appeal.

Complex Concepts Simplified

Felony fleeing or attempting to elude (K.S.A. 8-1568):
Misdemeanor fleeing occurs when a driver willfully fails to stop for an officer’s visual or audible signal. It becomes a felony if, during a police pursuit, the driver does something extra dangerous or obstructive (e.g., reckless driving, hitting property, running a roadblock, or committing five or more moving violations).
“Police pursuit”:
Not defined by statute, but generally means officers are actively trying to catch a suspect, usually by following or chasing a vehicle with the goal of stopping it. Turning off lights and sirens is evidence about whether a pursuit is happening but is not a legal “on/off switch.”
“Reckless driving” (K.S.A. 8-1566):
Driving in “willful or wanton disregard” for others’ safety. This is more than simple negligence or a minor traffic infraction; it implies knowingly taking unjustifiable risks with substantial danger to people or property.
Felony murder (K.S.A. 21-5402(a)(2)):
A form of first-degree murder where someone is killed during the commission of—or flight from—an inherently dangerous felony (such as aggravated robbery or felony fleeing). The prosecution does not have to prove the defendant intended to kill or was reckless about death; the intent or recklessness is supplied by committing the dangerous felony itself.
Reckless second-degree murder (K.S.A. 21-5403(a)(2)):
A form of homicide where the defendant did not intend to kill, but acted so recklessly and with such extreme disregard for human life that the law treats the resulting death as murder rather than manslaughter.
Specific vs general offense (K.S.A. 21-5109(d)):
When a defendant’s conduct fits two statutes, one very broad and one more tailored to that activity, Kansas law usually requires conviction and sentencing under the narrower (“more specific”) statute. But this only applies when the specific statute prohibits the same conduct as the general one, plus some extra element (e.g., the victim is a child, or a family member). It does not apply when the two statutes criminalize fundamentally different types of conduct.
“Clearly erroneous” instructional error:
If a defendant did not object to or request a particular jury instruction at trial, an appellate court will reverse only if it is firmly convinced the jury would have reached a different verdict if the correct instruction had been given.
Cumulative error:
Even if no single trial error would, by itself, justify reversal, multiple small errors can add up to a denial of a fair trial. But in Kansas, unpreserved instructional errors that are not clearly erroneous are not counted in this cumulative analysis.
BIDS attorney fees (K.S.A. 22-4513):
When an indigent defendant is represented by state-paid counsel, the court must consider their financial resources and the burden repayment will impose before requiring reimbursement. The court must state its consideration of these factors on the record.

Conclusion

State v. Johnson is a significant Kansas Supreme Court decision that clarifies several important aspects of criminal practice:

It establishes that ending active emergency signals does not automatically terminate a “police pursuit” for purposes of felony fleeing and that the chase’s continuation is a factual matter for the jury.
It emphasizes that statutorily defined terms like “reckless driving” are legal terms of art that should generally be defined for jurors when used as elements of an offense.
It confirms that reckless second-degree murder is not a “more specific” version of felony murder under K.S.A. 21-5109(d), thereby preserving the independent force of Kansas’s felony-murder rule in sentencing.
It reinforces the high hurdle posed by the “clearly erroneous” standard for unpreserved instructional issues and, through its adherence to Waldschmidt, further limits the scope of cumulative-error claims.
It provides a clear model for sentencing courts in assessing and explaining BIDS attorney-fee orders, balancing statutory requirements with defendants’ financial realities.

Taken together, these holdings will guide law enforcement policies on pursuits, inform charging and plea negotiations in cases involving death during inherently dangerous felonies, shape how trial judges frame jury instructions in felony fleeing and homicide cases, and influence appellate strategies regarding unpreserved errors and sentencing challenges. Johnson thus occupies an important place in the evolving landscape of Kansas criminal law.