State v. Burnett, 270 P.3d 1115

Burnett was convicted of capital murder and aggravated kidnapping in a case involving the death of 14-year-old C.B., who was pregnant at the time.
The jury could not reach a unanimous verdict in the penalty phase, so the court sentenced Burnett to life without parole for capital murder and imposed a consecutive aggravated presumptive sentence for kidnapping.
Burnett challenged the penalty-phase verdict forms as sanctioning potential double jeopardy by not allowing a jury to acquit death-penalty eligibility; the court deemed this claim not ripe for review.
Prosecutorial closing arguments were challenged as improper for suggesting Burnett’s mere presence in the car established aiding and abetting the kidnapping.
Two autopsy photographs were admitted over defense objection; Burnett also challenged an Allen instruction as misleading, and challenged the sentencing procedure on Apprendi/Cunningham grounds.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the double jeopardy claim is ripe for review	Burnett contends the penalty-phase verdict forms allowed no acquittal on death penalty.	State argues issue is not ripe until punishment is imposed twice.	Claim not ripe; no premature double jeopardy review.
Prosecutorial misconduct in closing argument	Burnett claims the prosecutor improperly argued presence in car sufficed for aiding and abetting.	State contends the remark, viewed with context and instructions, did not misstate law.	No reversible prosecutorial misconduct.
Admission of autopsy photographs	Two autopsy photos were overly gruesome and prejudicial.	Photos were relevant to explain medical testimony and death/manner of death.	No abuse of discretion; photographs properly admitted.
Allen instruction given before deliberations	Instruction stating another trial would be a burden was erroneous under Salts.	Instruction was not clearly erroneous under circumstances.	Instruction erroneous, but not clearly erroneous; reversal not required.
Imposition of aggravated presumptive sentence and related Apprendi issues	Sentencing violated Apprendi/Cunningham by considering prior-conviction facts not charged and proven beyond reasonable doubt.	Kansas decisions (Ivory, Johnson) control; lack of jurisdiction to review presumptive-sentence issues here.	Presumptive-sentence issues dismissed for lack of jurisdiction.

Sattazahn v. Pennsylvania, 537 U.S. 101 (U.S. 2003) (death-penalty verdicts and double jeopardy in penalty phase; deadlock context)
Witte v. United States, 515 U.S. 389 (U.S. 1995) (double jeopardy protects against punishment for same offense)
Helvering v. Mitchell, 303 U.S. 391 (U.S. 1938) (double jeopardy definition—protects against being punished twice)
Price v. Georgia, 398 U.S. 323 (U.S. 1970) (double jeopardy clause explained)
Sattazahn v. Pennsylvania, 537 U.S. 101 (U.S. 2003) (relevant to/ cited for analysis of jeopardy in penalty phase)
State v. Salts, 288 Kan. 263 (2009) (Allen instruction language deemed clearly erroneous; impact on review)
State v. Ivory, 273 Kan. 44 (2002) (Apprendi-like issues and prior-conviction scoring in sentencing)
State v. Johnson, 286 Kan. 824 (2008) (jurisdiction to review certain sentencing challenges)
State v. Baker, 287 Kan. 345 (2008) (presence/association as aiding and abetting not sufficient alone)
State v. Riojas, 288 Kan. 379 (2009) (photographs relevant to homicide element; proper use of photos)