510 P.3d 706
Kan.2022Background
- Keys shot and killed Arden King during an attempted marijuana transaction at Cole Gilbert’s apartment; Gilbert and Keys gave conflicting accounts (Keys claimed self-defense).
- Grand jury first indicted Keys for felony murder, aggravated robbery, and aggravated burglary; a superseding indictment added a firearm charge (Keys pled no contest to the firearm count).
- First trial ended in acquittal on aggravated burglary and a mistrial on felony murder and aggravated robbery. After the mistrial the grand jury returned a second superseding indictment adding distribution/possess-with-intent-to-distribute as an alternative underlying felony for felony murder.
- At retrial the State read Keys’ prior trial testimony into the record over defense objection; the district court also admitted the coroner’s (Dr. Glenn’s) deposition after finding him unavailable (he had moved to New Zealand).
- The jury convicted Keys of felony murder and aggravated robbery; he was sentenced to life plus additional terms and appealed, raising challenges to the indictment, selective prosecution, witness unavailability/confrontation, denial of a self-defense instruction, and cumulative error.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Keys) | Held |
|---|---|---|---|
| Validity of second superseding indictment / due process | Grand jury (not the prosecutor) returned a new indictment after new evidence; K.S.A. 22-3015 (amendment statute) does not apply; Keys had notice and opportunity to defend. | Second superseding indictment improperly amended the charges under K.S.A. 22-3015 and deprived Keys of due process by surprising him with a new underlying felony supported by his prior testimony. | Held: No statutory or due process defect — grand jury returned a new indictment (not a court amendment) and Keys had notice and opportunity to defend. |
| Double jeopardy (raised in reply) | — | Prosecution under the second superseding indictment violated double jeopardy statute. | Held: Argument raised for first time in reply brief; court declined to consider it. |
| Selective / discriminatory prosecution (motion to dismiss) | Prosecutor exercised lawful discretion based on Keys’ conduct (brought the gun, shot victim) and his criminal history; Gilbert was not similarly situated. | State targeted Keys because he is Black and exercised disproportionate/prosecutorial zeal while not charging Gilbert. | Held: Keys failed to show similarly situated persons were treated differently or discriminatory intent; motion denied. Court declined to adopt Keys’ proposed burden-shifting test. |
| Admission of coroner deposition / confrontation | State subpoenaed Dr. Glenn, deposed him before he left for New Zealand, attempted further contact, and showed reasonable diligence; foreign residency made him unavailable so deposition admissible. | State failed to show diligence or explore remote testimony; admission violated confrontation rights and K.S.A. 60-459 standard. | Held: Finding of unavailability was not an abuse of discretion; deposition admissible. Confrontation-clause challenge was not preserved (raised first on appeal/reply). |
| Refusal to give self-defense instruction | Self-defense is not legally appropriate because underlying felonies (distribution and aggravated robbery) do not contain an element of force that can be negated by self-defense. | Keys argued he shot in self-defense and was entitled to instructions (including imperfect/self-defense manslaughter instructions). | Held: No error — self-defense instruction legally inappropriate for these underlying felonies (distribution has no force element; aggravated robbery’s force element is not negated by self-defense). |
| Cumulative error | — | Cumulative errors deprived Keys of a fair trial. | Held: No reversible errors identified individually, so cumulative-error doctrine does not apply. |
Key Cases Cited
- Harrison v. United States, 392 U.S. 219 (U.S. 1968) (prior voluntary testimony admissible at retrial)
- United States v. Armstrong, 517 U.S. 456 (U.S. 1996) (demanding standard for selective prosecution claims)
- Mancusi v. Stubbs, 408 U.S. 204 (U.S. 1972) (witness residing abroad is unavailable to be compelled)
- State v. Carpenter, 228 Kan. 115 (Kan. 1980) (historical rule refusing amendment of grand-jury indictments)
- State v. Plunkett, 261 Kan. 1024 (Kan. 1997) (State must act in good faith and with diligence to establish witness unavailability)
- State v. Flournoy, 272 Kan. 784 (Kan. 2001) (appellate review: district court unavailability finding disturbed only for abuse of discretion)
- State v. Kelly, 298 Kan. 965 (Kan. 2014) (issues not raised below generally cannot be raised on appeal)
- State v. Gant, 288 Kan. 76 (Kan. 2009) (elements required to establish selective prosecution)