502 P.3d 511
Kan.2022Background
- Jonathan D. Carr (J. Carr) was convicted of multiple capital murders after a joint trial with his brother, Reginald Carr; the jury returned death sentences and J. Carr appealed penalty-phase errors.
- This appeal follows prior Kansas Supreme Court rulings that vacated death sentences (later reviewed by the U.S. Supreme Court) and remand for further state-law review.
- On remand the Kansas Supreme Court addressed (inter alia) challenges under §1 and §5 of the Kansas Constitution, Confrontation Clause and hearsay issues in the penalty phase, jury-instruction errors, prosecutorial-misconduct claims, denial of a continuance/surrebuttal, and cumulative error.
- The Court held §1 does not create an absolute, nonforfeitable right to life; once convicted of capital murder a defendant’s natural-rights protections are forfeited subject to other constitutional limits.
- The Court rejected state-constitutional challenges to death-qualification of jurors under K.S.A. 22-3410 and found most individual penalty-phase errors either not prejudicial or harmless beyond a reasonable doubt, and affirmed J. Carr’s death sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1 (Kansas Const. Bill of Rights) bars capital punishment | J. Carr: §1 creates an absolute, nonforfeitable right to life; death penalty unconstitutional under §1 | State: §1 recognizes an inalienable but forfeitable right; other constitutional provisions limit punishment | Court: §1 protects an inalienable but forfeitable right; death penalty scheme does not violate §1 |
| Death-qualification of jurors under K.S.A. 22-3410 violates §5 (right to jury) | LDF/J. Carr: DQ removes jurors and undermines the historic jury right; may have disparate racial impact | State: DQ excludes only those who cannot follow oath; consistent with common-law jury concept and §5 | Court: DQ is consistent with §5 and common-law jury concept; no record to adjudicate disparate-impact claim |
| Burden/instruction on mitigating circumstances (must instruct that mitigation need not be proved beyond reasonable doubt) | J. Carr: court should instruct under state law that mitigation need not be proved beyond reasonable doubt | State: Federal precedent (Carr) forecloses that Eighth Amendment basis; procedural posture improper to reopen on remand | Court: Denied motion as improper procedural vehicle; on merits no state-law error and no relief |
| Confrontation Clause and expert testimony (testimonial hearsay / PET-scan testimony) | J. Carr: Pay and other expert testimony relied on testimonial hearsay and violated Crawford | State: Confrontation Clause applies to testimonial hearsay that proves aggravators; experts may synthesize sources and give independent opinions | Court: Confrontation Clause applies only to evidence relevant to statutory aggravators (eligibility); expert may rely on testimonial hearsay so long as not a mere conduit; Pay’s testimony permissible |
| Denial of continuance / surrebuttal (Preston vs. Pay) | J. Carr: denial deprived defense of ability to rehabilitate expert and was constitutional error | State: Defense still could and did cross-examine Pay; prejudice not shown | Court: Denial was error under law of the case but harmless beyond a reasonable doubt |
| Prosecutorial misconduct (closing, cross-exam, references to jailhouse statements, denigration) | J. Carr: prosecutor argued facts not in evidence, disparaged counsel, and elicited prejudicial matters—cumulatively violated due process | State: errors were isolated; judge sustained/curtailed remarks and jury instructions cured prejudice; no reasonable possibility errors affected verdict | Court: Individual misstatements were error but harmless; admonitions and instructions cured prejudice; no cumulative error |
| Omission of jury instruction that defendant was ≥18 at time of crime | J. Carr: omission was error that could invalidate death penalty | State: age was uncontested and overwhelmingly proven at trial | Court: Omission was error but harmless beyond a reasonable doubt (element uncontested) |
| Failure to sever trials and related severance issues | J. Carr: joinder and nonseverance prejudiced penalty phase (state-law claim) | State: U.S. Supreme Court held no Eighth Amendment violation; severance error is law of the case but may be harmless | Court: State-law severance error remains law of the case but the State showed it was harmless as to the penalty verdict |
Key Cases Cited
- Kansas v. Carr, 577 U.S. 108 (2016) (U.S. Supreme Court holding joint penalty-phase trial did not violate Eighth Amendment and federal law does not require special mitigation-burden instruction)
- State v. Carr, 300 Kan. 340 (2014) (Kansas Supreme Court initial J. Carr decision vacating death sentence on severance/instruction grounds)
- State v. Carr, 300 Kan. 1 (2014) (Kansas Supreme Court R. Carr I; related holdings on severance and penalty-phase errors)
- Hodes & Nauser, MDs v. Schmidt, 309 Kan. 610 (2019) (Kansas Supreme Court holding §1 may recognize rights broader than Fourteenth Amendment and prompting §1 challenges)
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause governs testimonial out-of-court statements)
- Chapman v. California, 386 U.S. 18 (1967) (harmless-error standard for constitutional error)
- State v. Kleypas, 272 Kan. 894 (2001) (instructional guidance on mitigation burden and jury consideration)
- State v. Sherman, 305 Kan. 88 (2016) (reformulated standard for evaluating prosecutorial error)