State v. Gleason, 299 Kan. 1127

Background

On Feb 12–21, 2004, Sidney Gleason and co-defendant Damien Thompson participated in an initial robbery; nine days later Wornkey and Martinez were killed and Martinez was kidnapped and murdered. Thompson later confessed and led investigators to the body.
Thompson pleaded guilty to first-degree murder in a plea deal (State would not seek death/hard-50) and testified at a preliminary hearing; at Gleason’s trial Thompson refused to testify, and the court admitted his preliminary-hearing testimony as unavailable.
A jury convicted Gleason of capital murder (two victims), first-degree murder (one victim), aggravated kidnapping, aggravated robbery, and criminal possession of a firearm; the jury recommended death and the court imposed death plus other sentences including a hard-50 life term for the first-degree murder count.
On appeal Gleason raised multiple challenges to guilt-phase and penalty-phase rulings, Confrontation Clause issues arising from admission of Thompson’s prior testimony, instructional errors (including aiding-and-abetting, felony-murder lesser-included, and mitigating evidence burden), prosecutorial conduct, and multiplicity of convictions.
The Kansas Supreme Court affirmed convictions generally, vacated the separate first-degree murder conviction as multiplicitous with capital murder, but vacated the death sentence and remanded for resentencing because the jury instructions failed to tell jurors that mitigating circumstances need not be proved beyond a reasonable doubt.

Issues

Issue	Plaintiff's Argument (Gleason)	Defendant's Argument (State)	Held
Court jurisdiction over capital murder under K.S.A. 21-3439(a)(6) when defendant personally kills one victim and aids another	Aiding-and-abetting statute cannot be used to "hybridize" two killings into a single capital murder charge unless defendant personally killed more than one or aided killing of more than one	Aiding-and-abetting may support liability for one of multiple intentional premeditated murders needed for K.S.A. 21-3439(a)(6)	Affirmed: district court had jurisdiction; aiding-and-abetting can support predicate murder for capital charge
Sufficiency of evidence that murders were part of same act/transaction or common scheme	State failed to prove the required connection between killings	Presented evidence of joint trip, threats, shooting of Wornkey, kidnapping and later killing of Martinez	Affirmed: rational jury could find murders sufficiently connected
Admission of Thompson’s preliminary-hearing testimony after he refused to testify (Confrontation Clause)	Admission violated Crawford; Thompson was not truly "unavailable" and State failed reasonable-diligence/good-faith efforts to secure live testimony; mistrial warranted	Thompson refused after consultation with counsel; court held contempt and found prior cross-examination adequate; State made reasonable efforts	Majority: admission proper—Thompson unavailable; prior cross-examination adequate; no mistrial abuse. (Partial dissent disagreed and would reverse several convictions)
Jury instruction on mitigating circumstances burden in penalty phase	Jury should be instructed that mitigating circumstances need not be proved beyond a reasonable doubt; failure likely precluded jurors from considering mitigation => vacate death sentence	Jury was instructed individual jurors decide mitigation and were told mitigators need not be unanimous; Walton and Marsh counsel no per se federal requirement	Reversed death sentence: instruction was erroneous (failed to state mitigators need not be proven beyond reasonable doubt) and there was reasonable likelihood jurors were precluded from considering mitigation; remand for resentencing

Key Cases Cited

In re Winship, 397 U.S. 358 (1970) (due-process requirement that state prove every fact necessary to constitute crime beyond reasonable doubt)
Crawford v. Washington, 541 U.S. 36 (2004) (testimonial hearsay inadmissible unless declarant unavailable and defendant had prior opportunity to cross-examine)
State v. Jefferson, 287 Kan. 28 (2008) (witness who refuses to testify after court order is unavailable under K.S.A. 60-459(g))
State v. Terry, 202 Kan. 599 (1969) (prior testimony admissible when witness present but refuses to testify and prior testimony subject to cross-examination)
State v. Betancourt, 299 Kan. 131 (2014) (PIK aiding-and-abetting instruction correctly states law when read with elements instruction)
State v. Kleypas, 272 Kan. 894 (2001) (mitigating-instruction content must inform jurors mitigators need not be unanimous and need not be proved beyond reasonable doubt)
State v. Scott, 286 Kan. 54 (2008) (failure to instruct that jurors need not unanimously find mitigators can be reversible under Mills)
Mills v. Maryland, 486 U.S. 367 (1988) (sentencer cannot be precluded from considering mitigating evidence; unanimity requirement may violate Eighth Amendment)
Lowenfield v. Phelps, 484 U.S. 231 (1988) (weighting process and use of aggravating factors in capital sentencing)
Jones v. United States, 527 U.S. 373 (1999) (double-counting aggravators does not automatically render factors unconstitutional)