*1 83,801 No. Kansas, Scott, Appellee, Appellant.
State v. Gavin D.
(183 801) P.3d *6 filed Opinion 16, 2008. May Woodman, defender, Zinn, Rebecca E. and Steven R capital appellate deputy defender, the cause and were on the briefs appellate argued for appellant. McAllister, Fox, R. solicitor Stephen and Autumn L. assistant general, attorney cause, Kline, S. general, Phill argued Maag, deputy attorney general, Jared Morrison, former and Paul attorney general, were with them attorney general, *7 J. on the briefs for appellee. Monnat, Chtd., Wichita, E. Daniel of Monnat & of and Spurrier, A. Paige Nichols, Lawrence, were on the brief for amicus curiae Kansas Association of Criminal Defense Lawyers. of the court was delivered opinion
Per Curiam: Gavin Scott from trial convictions for appeals juiy Brittain, murder of Elizabeth capital premeditated first-degree Brittain, murder criminal Douglas aggravated burglary, posses- firearm, sion of a and theft. Scott has been sentenced to felony murder, death for with consecutive sentences of life im- capital with a minimum term of 40 prisonment mandatoiy years pre- murder, meditated 51 months for first-degree aggravated burglary, firearm, months for criminal of a and 7 months for possession theft. We affirm Scott’s convictions for the felony crime of except reversed, murder which is set aside the premeditated imposition of the death and remand for another penalty, sentencing proceed- to determine whether Scott should be sentenced to death. ing Scott does not of the evidence neces- challenge sufficiency his A convictions. narrative of the facts sary support underlying and circumstances as in State v. Wakefield, reported was in this Ad- largely replicated proceeding. ditional facts will be where under the issues provided appropriate raised on appeal. SIX OF COUNT SUFFICIENCY
THE LEGAL counts with Scott was capital charged separate Initially, 21- Brittain. K.S.A. and Brittain of Elizabeth murders Douglas 3439(a)(6) murder as defines capital as a more than one part person killing “intentional premeditated transactions connected or more acts or together transaction or in two same act or course of conduct.” scheme or of common or constituting parts as mul- trial, a motion to dismiss Scott filed Before charges crime of constitute both deaths capital single alleging tiplicitous, did not concede the State murder. At a motion charges hearing, Scott the information to but did amend were charge multiplicitous Brittain murder of with the Douglas first-degree premeditated Brittain in count of Elizabeth and the murder count two capital six. states: amended information
Count six of the 13, 1996, A.D., and the in the County Sedgwick, or about September “[0]n Kansas, Scott, there D. did then and unlawfully,intentionally State of one Gavin Brittain, and that the intentional Mil Elizabeth G. and with premeditation Brittain, Brittain, G. part of Elizabeth G. Douglas premeditated killing connected acts or transactions act transaction or two or more of the same or of conduct.” scheme or course of common constituting parts together motion to erred in his contends the district court Scott denying Brittain be- of Elizabeth for the murder arrest judgment Brittain, an killed cause count six does Douglas allege that an the crime. We Scott’s essential element of accept premise *8 is that the defendant the murder essential element of charge capital killed Brittain. Douglas the an information is sufficient
The
of whether
give
question
which this court
of law over
is
district court
question
jurisdiction
661,
v.
659,
review. State
P.3d
277
89
Kan.
Shirley,
has unlimited
sufficient,
this
is
(2004).
whether an information
649
In analyzing
tests,
is
on when the
of two
court
one
objection
depending
applies
Hooker,
(2001);
v.
raised. State
964
see
Kan.
21 P.3d
271
overruled
Hall,
(1990),
728, 764-65,
State v.
63 information, the standard on a defective based pre-Hall applies. standard, which an information Hall, Under this Kan. at 764. 246 it the crime elements of of the essential one or more omits attempts defective, and conviction is fatally charge jurisdictionally v. be reversed. State an information must on such Sanford, based However, (1992). 592, 600-01, even under Kan. 250 standard, is if it an information sufficient the substantially pre-Hall or the offense of the statute follows the equiv- charges language the so as defendant or others the same alent words long import offense and the court is informed of is charged fully particular what statute the is founded. State under able determine charge (1987). Micheaux, 242 747 784 Kan. P.2d 21-3439(a)(6) that the State’s docu- K.S.A. requires charging (1) (2) killed than one The defendant more ment person; allege: and, (3) were intentional and killings premeditated; killings transaction, two or more connected were of the same act or part six, murder transactions. Count charge, alleges Douglas however, with Brittain was killed intentionally premeditation; noted, As count it does not Scott killed him. already explicitly allege intentional, murder two does Scott with charge premeditated However, because two was Brittain. count Douglas expressly six, a nec- reference into count it does not provide incorporated Garcia, 243 Kan. element of the offense. See State v. essary P.2d on other State 763 585 overruled part grounds Grissom, 851, 892-93, (1992); State v. Kan. P.2d 463, 465-66, 721 P.2d Jackson, six held sufficient because State contends count should be 21-3439(a)(6) PIK it is drawn in of K.S.A. and follows the language 56.00-A(l) (3)(f). It is true an information drawn Crim. 3d with- of the substantive criminal statute sufficient to language Micheaux, 22-3201(b); stand K.S.A. legal challenge. However, at 197. is immaterial whether count six follows it 56.00-A, Crim. of a doc- PIK 3d sufficiency charging legal of law. ument is not instructions Parenthetically, upon dependent instruction suffers from the same trial court’s per- argues not ex- as die information —the instruction does ceived deficiency State to Scott killed Brittain. The plicidy require prove Douglas *9 64 of instruction to Scott’s conviction for
sufficiency support murder of Brittain is raised as a issue to be later Douglas separate in this addressed opinion. we have stated standard “tech-
Although
pre-Hall
emphasizes
considerations,
considerations,” Hooker,
nical
rather than practical
Kan.
271
at
we have also held “an information should be read
sense,
in its
construed
to common
and inter-
entirety,
according
Micheaux,
include facts which are
preted
necessarily implied.”
Micheaux,
242 Kan. at
In
Morris,
199.
we
from State v.
124
quoted
(1927),
629
Pac.
that “the
[has]
day
passed
this
when criminals can
jurisdiction
hope
go unwhipped
jus-
tice because of the
of a
want
technical
recital
a criminal infor-
mation which neither misled nor
them in the
prejudiced
prepara-
”
tion
their
defense.’
Applying Scott killed Brittain was allegation Douglas necessarily implied by used and a commonsense Con- language reading charge. this omission is from omissions we have sequently, distinguishable held constitute reversible error under the standard. ^re-Hall 511, 512-14, In State v. Howell & 226 Kan. 601 P.2d Taylor, (1979), conviction was reversed be aggravated robbeiy cause the failed to force or threat complaint allege taking 463, 465-67, harm. In State v. 239 Kan. bodily great Jackson, (1986), we reversed convictions for two counts of child, indecent liberties with a one because failed complaint the victim was under 16 and one because the allege years age, failed to the child was not married to the accused. complaint allege In State P.2d Browning, Syl. ¶ we reversed a conviction for murder because the second-degree Hall, failed to 746-47, malice. 246 Kan. at we complaint allege reversed a conviction of theft because the failed to complaint allege the defendant intended to the owner of permanently deprive pos session of 599-602, his cattle. In 250 Kan. at we Sanford, reversed a conviction for because the amended in aggravated kidnapping formation failed to an intent to inflict terrorize allege bodily injury, victim, or facilitate or the commission of a crime. flight *10 cases, on the omis- reversal was each the above predicated not be inferred from an that could
sion of
essential element
clearly
here;
Such is not the case
document.
charging
language
decried in
rather,
technical defect of the
we
this omission is a
type
been
Morris,
it would have
We stated “[mjultiplicity charging single It creates of a or information. more than one count complaint offense, violat- for for multiple punishments single potential Amendment to the Clause of the Fifth the Double ing Jeopardy Bill and 10 of the Kansas Constitution United States Constitution § Harris, P.3d 28 State 284 Kan. Syl. ¶ Rights.” (2007). raises a We have held claim of also “[a] multiplicity question Harris, Kan. subject appellate of law to unlimited review.” Syl. ¶3. consti- the same crime are for
Although multiple punishments
this
extends
only
tutionally
prohibition
prevent
prohibited,
than the
court from
greater punishments
sentencing
prescribing
Garcia,
P.3d
intended. State v.
legislature
Hunter,
359, 366-69,
(2001);
74 L.
459 U.S.
see Missouri
Clause is
2d
K.S.A. states: crime, for a the defendant be convicted of either “Upon prosecution may crime, crime or an included An but both. included crime be charged may any of the following: “(a) crime; A lesser of the same degree “(b) an to commit the crime attempt charged; “(c) an to commit a lesser of the crime attempt degree charged; ” “(d) a crime the crime were necessarily proved charged proved. (Emphasis if added.) *11 21-3107(2)(d)
The that under K.S.A. parties agree premeditated murder of Brittain is a crime first-degree Douglas necessarily once the murder of Elizabeth Brittain and proved capital Douglas However, Brittain is that does not resolve the if issue there proved. is a clear to allow intent cumulative See legislative punishment. Walker, State 611, 153 v. 283 (2007); P.3d 1257 see also Schoonover, 453, 490-91, (2006) it be the same- (recognizing may always necessary apply test; elements there be circumstances where the may legislature’s clear). intent is otherwise The State the Kansas argues Legislature has authorized cumulative for these crimes. punishment
In of its the State notes K.S.A. 21- support argument, correctly 3439(a)(6) is after a similar in the patterned provision Virginia Death Act. of See Minutes the Senate Committee on Penalty Ju- 24,1994 anof amendment diciary, February (detailing passage to HB 2578 so as to statute); it after the see also pattern Virginia Minutes of the Senate Committee on March 1994 Judiciary, of the amendment tois include (reconfirming purpose provi- sions ofVa. Code Ann. §18.2-31[7] [2003] defining capital murder willful, deliberate, as and “[t]he of part premeditated killing more than one aas of transaction”). the same act or person part Moreover, our before 21-3439(a)(6), enacted K.S.A. legislature Court had its death statute Virginia Supreme interpreted penalty simultaneous convictions of murder for allowing capital multiple victims and conviction of murder for one or more of first-degree
67
Commonwealth, 236 Va.
victims. See
those multiple
Woodfin
(1988),
Supreme
if a first-
dilemmas
results
ecutor’s
unjust
potentially
charging
conviction is
to be
murder
held
multiplicitous
premeditated
degree
21-3439(a)(6).
K.S.A.
with a
murder conviction under
capital
a de-
on the election of
State
depending
prosecutor,
argues
be
with
counts of
fendant could
first-degree pre-
charged
multiple
If
count of
murder.
meditated murder
one
charged
murder,
counts
convicted multiple
first-degree premeditated
*12
Con-
be
for each conviction.
hard
sentences could
imposed
murder,
if
and convicted of one count of capital
versely,
charged
50 sentence could be
one hard
imposed.
only
no
to have merit for crimes
above
longer
argument
appears
the
amended K.S.A.
committed after
July
legislature
21-4624 and K.S.A. 21-4635 to
that a defendant convicted
provide
who
not
a
of death shall
of
murder
does
receive
sentence
capital
the
do
to life without
of
We
not
be sentenced
possibility
parole.
a
the
difference between life sentence without
find quantitative
of
and
hard 50 sentences.
multiple
possibility
parole
Code,
of
In
Criminal
§18.2-31(g)
Virginia
interpreting
to
en-
Court inferred a
intent
Virginia Supreme
legislative
provide
The State has the murder of Brittain was acknowledged Douglas a crime under the murder. necessarily proved charge 21-3107(2)(d) (Furse), under K.S.A. Scott’s convic- Accordingly, tions were in the absence clear multiplicitous unambiguous intent for the same legislative authorizing multiple prosecutions conduct. We are unable conclude from a of K.S.A. plain reading 21-3439(a)(6) and its that the intended legislative history legislature to override the reach 21-3107(2)(d). of K.S.A. acknowledged instances, other has not hesitated to state when legislature 21-3107(2) K.S.A. to be See K.S.A. 21-3436 applied. (pre- of K.S.A. offenses cluding 21-3107[2] application specific felony of whether such is distinct from the hom- regardless felony alleged icide). Here, there has been no such declared intent. legislative we conclude Scott’s conviction for the Accordingly, first-degree murder of Brittain must be reversed. premeditated Douglas DENIAL OF SCOTT’S MOTION TO
SUPPRESS STATEMENTS A. Scott’s to Defer Request Interrogation Scott next contends district court erred his state- finding ments made were admissible. He contends during interrogation statements after his to “finish this in the any request morning” should have been He the detectives’ suppressed. argues continuing failed to honor Fifth his Amendment invocation of interrogation to remain silent. right denied During interrogation, initially any knowledge interview, incident. he Approximately midway through *13 house. Detectives in the Brittains’ to been admitted began having crime, to him he him for more details suggesting pressing to them who the killer was Brittains’ children tell it to the owed Holtz then at- if was the shooter. Detective his and accomplice kids, an Scott that he loved to on earlier statement by tempted play stating: ifme I’d man. You asked what You yourself, help us gotta help “[T]ell happened. out, to if and it is. We had asked me this thing enough help you
you you scene, we tell us what cause a homicide need at you happened put you have side of what tell us his side. We’ve your other gotta happened, guy’s gonna if, that’s, cool, drunk, And, if it was that’s if were fuzzy, man. being fuzzy, you that can out not a cold blooded dude enough somebody killing but you wipe you’re those litde kids and love cause love love you your you somebody, you people can’t cause And if that that’s something you own forget you’re family. happened, too, .” cause . . . with At discussion took following place, point, disjointed over another: one participants talking we finish in the man? Please? Can this morning, “[Scott]: that, Oliver]: Why “[Det. This, dude’s, Can’t tell man? that other us what’s on “[Det. Holtz]: you going Man, shoot, I can’t “[Scott]: us what’s “[Det. Holtz]: telling happening, okay? man, I. Let’s finish this in the let’s finish this morning. “[Scott]: morning, now, man. This other dude’s us telling “[Det. Holtz]: real It’s “[Det. Oliver]: simple, Man, don’t, don’t, I I “[Scott]: back, uh, we’re just asking you pull “[Det. Oliver]: remember. “[Scott]:
“[Det. Oliver]: your memory I don’t remember it. “[Scott]: that, told there us man. You remember being you just “[Det. Holtz]: though, Yes, can, there, I . . .” I I can remember . being “[Scott]: with Scott then continued the detectives provid- questioning, more details. ing his or her to remain
We have held a invocation of right suspect’s be honored and cuts off further interro- silent must scrupulously its functional elicited equivalent. by express questioning gation However, 286, Carty, as to where a statement which be makes may ambiguous suspect *14 70 silent, he or
whether she a to remain the inter- asserting right to, but is not ask to or rogator may, required questions clarify may Gonzalez, continue without 282 questioning clarifying. 106, 73, (2006). P.3d 18 If the to chooses interrogator clarification, continue without he or she runs questioning seeking a the risk of later the invocation was not and ruling ambiguous any statements are thus inadmissible. subsequent While Scott characterizes his to “finish this in the morn- requests silent, assertions of his remain to we are ing” unambiguous right unable to At the v. Denno on the admissi- agree. hearing Jackson confession, Detective Holtz testified he believed Scott bility made the because he was emotional and was em- requests getting Denno, barrassed about so. See v. 378 U.S. doing Jackson (1964). L. Ed. S. 2d 84 Ct. 1774 He stated Scott to seemed in and, be of control the situation after his embarrass- overcoming ment, to tell the detectives what had This proceeded happened. as well as the nature of the led the testimony, ambiguous requests, district court to rule as follows: statement, not a clear I’m not “[I]t’s talk more. It’s gonna Can’t any just request,
we
And that’s
there’s
stop.
that
ambiguous enough,
there was no
nothing wrong,
of time used
the
lengthy period
detective
detectives
the
actually,
plural,
to force Mr. Scott into
statement
was not
making
freely
voluntarily
made.”
In
his statement was
Scott cites Michi-
asserting
unambiguous,
v.
423 U.S.
46 L.
2d
Ed.
Scott cites
person
proposition
the time at which
to control
has a
ques-
right
interrogation
ject
1989);
(2d
Reid,
Cir.
891 F.2d
occurs: Campaneria
tioning
However,
(Del. 1986).
neither
State,
indicated a desire morning. to invocation of his an statement was not Scott’s right unequivocal cease silent, were not to the detectives remain question required 2d States, 129 L. Ed. 512 U.S. Davis v. United See ing. 263, McCorkendale, (1994); 362, 114 S. State Ct. (1999); 273, also Martin see Wainwright, 1985) 918, (11th the defendant’s statement Cir. F.2d (holding invocation of was an we wait till tomorrow” “[c]an’t “equivocal” 781 F.2d silent), other on to remain grounds right modified 1986). (11th Cir. First B. Denial of Timely Appearance inter- made statements next contends during inculpatory from the the statements resulted be should suppressed rogation contends 22-2901. He further with K.S.A. State’s failure to comply un- of constitutional this failure resulted protections deprivation der the Fourth and Sixth Amendments to United States Con- stitution. A time line is to understand Scott’s contention: helpful 14,1996.
1. Scott is arrested without a warrant Saturday, September for felony of a firearm. possession 15, 2. 1996. A district an Sunday, enters ex September judge parte probable cause and sets bond. finding 16, 3. 1996. Scott is not Monday, before a September brought magistrate first on the firearms Scott is interviewed that appearance charge. evening the Brittain murders. regarding 4. 1996. A district Tuesday, September enters ex judge parte probable cause murders related findings bond is set. regarding charges; 5. 1996. The Wednesday, State makes an ex September parte request the first of Scott because postpone is appearance investigation ongoing and more time is needed to determine whether murder will capital charges and, so, be filed if whom. The State also informs the district against judge defender’s office has desire to be expressed to defend appointed the more of the two The district court culpable suspects. agrees postpone Scott’s first until 1996. appearance Thursday, September 6. 1996. Scott has his Thursday, first September appearance. 22-2901(1) K.S.A. provides: “[Wjhen an arrest is made in the where the crime county charged alleged committed, have been arrested shall be taken person without unnecessary before a delay court from which magistrate the warrant was issued. If cause, warrant, arrest has been made on probable without a he shall be taken
without
the nearest available
unnecessary delay
and a
magistrate
complaint
before
added.)
shall be
(Emphasis
filed forthwith.”
Reeder,
State v. Crouch &
783, 785-86,
230 Kan.
22-2901 was addressed recently companion 116, 123-24, In Wake- Wakefield, went district before an assistant day attorney judge field, that the arrest and the defendant’s after finding post- requested for an and Scott’s first of both Wakefield’s appearance ponement as an was a additional investigation necessary delay, appropriate day crime He there were had been multiple explained completed. interview, and evidence witnesses scenes inventory process, the defendant be made as to whether a decision could before Further, he with murder. should be explained charged capital had a desire to defender’s office represent expressed capital codefendants, therefore, in order to two more culpable interest, to ascertain which of it was avoid conflicts important crime and before was more the codefendants culpable charging we held: Kan. at 124-25. In counsel. 267 Wakefield, appointing without de- taken for first Wakefield was not appearance “Clearly, case, However, this the circumstances of when considering lay. defender, that conflicts delay appointing potential was not 125. We also held 267 Kan. at was any delay necessary.” evidence the defendant as there was no subjected prejudicial, to his first the additional time to coercive during prior questioning 125-26. 267 Kan. at appearance. and excuses We conclude delay controlling Wakefield 13th from the for night- arising September
arraignment
charges
However,
our decision
the Brittain residence.
time invasion of
in Scott’s
to the
does not
arraignment
delay
pertain
*17
Wakefield
the
a firearm. The State has
criminal
possession
charge
reasons
the failure to
on
provided any
justifying
arraign Monday,
16,1996, and we conclude there was a failure to
September
comply
with the
of K.S.A. 22-2901.
unambiguous requirements
then,
is what the
for this violation should
question,
remedy
be. We have held an unwarranted
in and of itself is not a
delay
denial of due
unless it in some
the accused’s
process
way prejudices
Goodseal,
to a fair trial.
that, had he been
on
the district court would
arraigned Monday,
have advised him of his constitutional and trial
rights
appointed
counsel to
him.
he concedes his
to coun-
represent
Although
right
sel would have been
to the
he contends that
specific
gun charge,
had
him,
counsel been
for
he would have
appointed
undoubtedly
been advised to invoke his Fifth Amendment
subse-
rights
any
and thus would not have
his
quent
confession
interrogation
given
on Monday night.
“
We have stated that
‘a confession obtained
during period
detention is not
if
inadmissible
made and
illegal
not the
voluntarily
”
Goodseal,
detention.’
We conclude the record on lacks appeal length the was a causal factor Scott’s confession or his confes- delay it was somehow coerced. be Scott sion may Although speculated counsel, have confessed had he been the fail- not appointed might result, him did not cause the confession. As a ure to counsel appoint a fair trial Scott has failed to show his was prejudiced by right any unnecessary delay. INSTRUCTIONS
JURY A. The Instruction Capital-Murder Here, This issue is related to the first issue raised Scott. he by the district erred in contends court to instruct on an essential failing element of murder —that he killed Brittain. capital Douglas instructions,
When we are re- considering challenges jury to consider the instructions as a whole and isolate quired any Even if one instruction. erroneous some instructions are way, if not reversible error and state the law as properly fairly ap- they to the facts of the case and could not have misled plied reasonably jury. Edgar, 56.00-A(l) The district court’s instruction followed PIK Crim. 3d (3)(f). However, we conclude the instruction is defi- pattern cient itas does not a claim that Scott killed Britt- require Douglas ain. This does not end our was not analysis. Although jury that in instructed order to convict Scott of murder explicitly Brittain, it had to find he killed Douglas jury properly instructed with to the elements of first- regard premeditated murder of Brittain and found Scott of that degree Douglas guilty instructions, whole, offense. We conclude the read as a fairly stated the law and a could not have been properly jury reasonably misled.
B. Definition of “Premeditation” Scott next contends the district court’s instruction defining “pre- “ meditation” was erroneous. The was instructed: ‘Pre- clearly jury meditation’ means to have over the matter beforehand. thought for is no time There period premeditation.” argues particular his to this instruc- the district court erred overruling objection tion. this definition of
Scott argues
premeditation,
especially
time
there is no
second sentence
jury
informing
particular
pe-
Scott,
riod for
is erroneous.
inform-
According
premeditation,
is to have
only
premeditation
ing
requirement
beforehand,
and then
that no
over matter
adding
par-
thought
*19
ticular time
the instruction conflates premedi-
period
required,
with intentional
murder.
tated
murder
first-degree
second-degree
taken
from PIK
The first sentence of
instruction is
directly
(1994
56.04(b)
Crim. 3d
which we have consistently
Supp.),
ap
Martis,
267, 298-302,
277 Kan.
83
See State v.
P.3d 1216
proved.
(2004);
Hebert,
61, 87-88,
(2004);
State v.
277 Kan.
We also note a
instruction
premeditation
containing language
similar to that contained
the second sentence of the instruc-
very
Patterson,
tion has been held not to constitute error in State v.
262, 268,
Kan.
Our conclusion is based on the circumstances of this case as There was shown evidence. evidence of by overwhelming pre- meditation semblance of instantaneous acts. The evi- beyond any showed: Scott and Wakefield took at least dence one gun Jason home; them into the with while Brittain’s talked breaking they about and Elizabeth Brittain while were shooting Douglas they Scott broke into a cabinet outside the Brittain’s asleep; gun just bedroom to a different that was used to shoot the get gun couple; Scott tried to to shoot the Wakefield and took the get couple gun them; from Wakefield when he refused to shoot and Scott then shot both victims as they slept.
We conclude the district court’s instruction defining premedi- tation was not erroneous. We further conclude under the circum- evidence, stances shown error was harmless. any PROSECUTORIAL MISCONDUCT Scott raises five different issues of mis- Generally, prosecutorial concerns, conduct. Before each of his we note our considering and the framework for claims of prior holdings analyzing prose- cutorial misconduct during closing argument.
A
has the
to refrain from
prosecutor
duty
making improper,
or irrelevant statements to the
This
leading, inflammatory,
jury.
*20
894,
is
in
cases. State v.
272 Kan.
duty heightened
Kleypas,
953,
ness the three factors set out in inquiry utilizing Jones. “With this clarification of the then the of whether two-step analysis, question behavior was can a sensible and ap- prosecutor’s gross flagrant occupy the first of three factors to be considered in the our propriate place analysis harmlessness None of these three factors is Fur- individually inquiry. controlling. ther, it is that the character of the three factors ensures that our harm- important will be lessness misconduct both inquiry unique setting prosecutorial as it should be. Prosecutorial misconduct not practical punitive, only injects error into a criminal trial. It violates tire ethical But we prosecutor’s obligations. misbehavior, that there are seriousness in such and our recognize degrees courts must have the freedom to those and their consider likely appellate degrees decide merits effects as whether misbehavior before them a case drey given new trial.” 278 reversal and remand for Kan. at 93-94. the third factor —whether the evidence was of such
Regarding a direct and nature that the misconduct would overwhelming likely said in Tosh: have little in the minds of weight jurors —we “This factor sounds most like the harmlessness examination now required by K.S.A. 60-26. ... It also echoes the federal harmless error declared in rule 386 U.S. 17 L. Ed. 2d 87 S. Ct. California, Chapman (1967) .... “In recent tins court and our Court of have reviewed case after years Appeals case in which misconduct occurred and die State has prosecutorial argued such misconduct was harmless error because there was evidence overwhelming and oral in those cases have some- defendant. records against arguments *21 an the of that a defendant can be times reflected attitude on part prosecutors conclusion, denied a fair trial where the evidence Taken to its is substantial. logical this lead a rule that the or endorsement of attitude would to acceptance greater
79 defendant, a trial. that defendant has to fair a the less right the evidence against Denial of a fair trial violates can tolerate such a rule. law nor basic Neither justice as of the innocent as those of the defendant just surely the due guilty rights process one. the of the three in our evaluation of third counsel caution “These observations this cases. We must avoid misconduct using factors harmlessness prosecutorial default, as a a shortcut evidence past and the inculpatory factor weight We the first two factors. influences of of often careful competing comparison as an one misconduct case appropriate also regard prosecutorial [60,] discussed in v.] of the dual standard Donesay, [State application (1998)]. the first two 88[, third factor can ever override 959 862 Before the P.2d factors, that the K.S.A. 60-261 court must be able both an say appellate said, this be then tests'have been met. If can certainly harmlessness the Chapman little in minds would have true ‘that misconduct likely weight it will also be ” 278 at 96-98. of jurors.’ We turn to Scott’s now complaints. Oath to Honor Their
A. Exhorting Jurors
to-
of
remark
complains
following
by
prosecutor
“This man sits
of his initial
ward
conclusion
closing argument:
do,
what we’re
to honor
before
That’s
you
your
guilty.
asking
you
verdict.”
as
have done and return that
oath
you
of
to honor their oath and return verdict guilty,
By telling jurors
do otherwise
be violation
die
would
prosecutor implied
to be
Such comments have been found
duty.
improper
1, 182-84,
264
836
courts. See State v.
Conn.
Reynolds,
variety
(Fla.
State,
928, 930-31
(2003);
v.
525
2d
Dist.
A.2d 224
Redish
So.
Nelson,
226-28,
1988);
737 N.E.2d
v.
193 Ill. 2d
People
App.
Kidd,
1, 50-51,
(2000);
v.
Ill.
B. a to Scott as “Murderer” and “Killer” Referring The remarks of occurred after the had complained prosecutor the evidence toward Scott as the actual argued pointed triggerman rather than Wakefield. The then stated: prosecutor “And, if haven’t done it take you look into the of a killer. already, good eyes hard, Look and look he because sits about feet long from There sits eight you. before a murderer of two you people.” later,
A short time while about one of the prosecutor, talking Brittains’ Scott her bed- daughter’s discovery coming through window, room stated: at “Look the killer before because [the you, last and final eternal of her in her daughter’s] memory parents house is what saw.” The also referred to as you prosecutor killer at remarks, other times Two of those “[Wake- during closing. killer,” real killer. This is the field’s] and that the evidence shows “that’s the killer before to have been you,” appear attempts to differentiate However, Scott’s conduct from Wakefield’s. two comments, other Scott as “killer who murders referring help- less, innocent in their who their lifetime with people sleep, spend their children these so can have a fam- collecting possessions they to “return into this courtroom and tell this ily,” asking juiy is,” killer what that’s he were not proper.
This court’s
to a
jurisprudence regarding prosecutors referring
defendant
aas “killer” or “murderer” makes a distinction regarding
Cravatt,
is used. In in which the statement
manner
have
314, 333-34,
we noted:
979 P.2d
“[W]e
defendant as a
to refer
allowed the
in the past
prosecution
in the statement
conse-
so
‘murderer
predicts
long
nothing
in the
kind of ‘fear
intensifies
any
neigh-
acquittal
quences
Cravatt, we found the
com-
borhood’ sentiment.”
prosecutor’s
*23
not
a murderer
free because
to
that it should
“let
ment
the
go
jury
to
was
the defense has
these half-baked theories
presented
you”
Collier,
332;
also State v.
267 Kan. at
see
not improper.
346, 355,
(1996)
a
statement
However,
have
comments
defend
we
found
characterizing
a
“killer”
in other contexts.
ant as
“murderer” or
to be improper
(1999),
In State v.
Kan.
we
267
McCray,
“[ljook
the
to
at
the
remark
held
[the
jury
directing
prosecutor’s
at
defendant],
have to look
him. That’s
ladies and
you
gentlemen,
like,
was
a
looks
ladies and
what murderer
gentlemen,”
improper
of the de
it
the
because
injected
personal opinion
prosecutor’s
Hooker,
State v.
Kan.
21
fendant’s guilt. Similarly,
that the
we held the
remark
defend
P.3d 964
prosecutor’s
for the same
ant had “cold-blooded
was
eyes”
improper
killing
Scott,
cert.
103, 114, 21
in Also,
P.3d
reason.
Kan.
(2001), we
the
remark to
denied
The
rule to be taken from
cases
consistent
prose-
killer in the
as a murderer or
cutor
refer to the defendant
may
the
committed
evidence shows
defendant
course of
arguing
However,
Cravatt,
We conclude some comments were prosecutor’s proper Scott, and others were The remarks rather than improper. arguing Wakefield, was the killer were not but were fair instead improper, However, comment on the based evidence. other remarks were statement clearly improper. prosecutor’s asking jury Scott, “take look into the of killer” See good eyes improper. Scott, at 114. it did not as in that the Although imply, defendant’s were neither did it bear real eyes eyes,” “killing any relation on to a comment the evidence. Likewise were improper comments at the killer prosecutor’s directing “[l]ook before to Scott as a “toiler who murders you,” referring help- less, innocent in their who their with lifetime people sleep, spend their children these so can have a fam- collecting possessions they to “return into this courtroom and tell this ily,” asking jury toller that’s what he is.”
C. that Scott Stating Kept Lying *24 Scott next that, of the statement complains prosecutor’s during Scott’s after the had detectives told him he had no interrogation, to reason he if he was not the deceive, “he continues to triggerman, that, he on statement, Scott contends this keeps lying.” through the his Scott was a Mar. prosecutor injected personal opinion
We have
held a
comment on the credi-
previously
prosecutor’s
of a
Pabst,
witness is
See State
268 Kan.
bility
improper.
However, look at the statement in dem- context prosecutor’s onstrates he was not on the the of commenting general credibility defendant. this During portion closing argument, pros- ecutor stated: “And, Gavin, interview, Holtz’s at finally, end of the point, towards the very end, before he if mentions not the slips up Trey, have you’re triggerman, you deceive,
no reason to he to me. heBut continues to he on and then keeps lying, when I wheel took end. He Trey steering at the says, yeah, he very slips up lit a cigarette.” the fact the de- was to
We conclude referring prosecutor did not know them he to to he fendant continued by telling police was before his of “Trey” finally admitting accomplice, identity a comment on the Thus, was not the statement his accomplice. comment on the ev- instead a fair but was defendant’s credibility, idence. of Witness for
D.
Credibility
Vouching
that constituted
made statements
contends
Scott
prosecutor
to the
for the
referring
McClung.
credibility
Johnny
vouching
informant who
testified
McClung,
jailhouse
testimony
him, the
stated:
the crimes to
had confessed
prosecutor
committing
he doesn’t have the
can’t come
guts
Gavin’s in
where
go,
“Once
jail,
you
and dad in their bed
their
I murdered a mom
sleep
tell
McClung,
Johnny
that.
He doesn’t have the
children for breakfast.
guts
say
I left them for their
know that. Did
Dale
You
he told that to
McClung.
But
know that
Johnny
you
to have
make it
and we
it
Did
up
happened
make
Johnny just
Johnny just
up?
that.
You know that he told
house with
Johnny
Gavin
fingerprints?
oh,
added,
that,
“And,
think
if
Johnny just gratuitously
he told Johnny
you
the stairs?
Mc-
them as
came down
Johnny
he said he murdered
they
the way,
has,
what this man told him. How
he
for all the
telling you
problems
Clung,
could it be otherwise?”
for the
to “vouch”
It is
credibility
prosecutor
improper
107, 122,
Davis,
E. Reference to Facts Outside the Evidence The final made Scott mis- argument by regarding prosecutorial conduct concerns the statement about a of his prosecutor’s part confession. stated: During closing, prosecutor Holtz, “Gavin tells Detective I don’t do It’s a three hour interview. burglaries. If listen it for 60 hours over the you two it know heart. But past years, you’d by let me remind what Gavin I don’t do even you says. Travis^— burglaries, though that’s the that he was arrested with on guy the 14th —even Saturday, Travis though tried to me to ado And remember what Gavin get burglary. you tells Holtz. He Travis tried to says, me to do a he yeah, told me get where the house burglary, was, house, he told me what’s inside the and he told me where all the stuff was house, inside the but I don’t do burglaries anymore. Certainly begs question, it, doesn’t ladies and gentlemen.” clear, it was, Although entirely appears prosecutor’s point Scott said he did not do all indications from although burglaries, the evidence were that Scott committed the burglary question. statement to the effect that he had argues prosecutor’s listened to the confession for 60 hours and knew it heart tape by (1) was because there was no evidence the record as improper to how (2) listened to the long prosecutor actually tape, the statement was to make the believe the designed juiy prose- cutor’s recollection of the accurate. tape especially
The statement
of is a comment
aon matter outside
complained
Pabst,
evidence and is
See
F. Conclusion We have noted numerous instances of comment improper While these com- prosecutor closing argument. improper ments do not to be misconduct, reason- appear gross flagrant able minds as to whether the sheer number of such may disagree remarks demonstrate ill will on the How- part prosecutor. *26 in deter- ever, the factors we must consider is one of ill will only a fair trial. Scott was denied whether mining each crime for which he was of Scott’s The evidence guilt confessed to the rob- was direct convicted overwhelming. case from which were on the and his upstairs gun bery, fingerprints Further, the evidence Scott was was taken. the murder weapon informant, a house but came not from actual jail only triggerman Scott to two of his friends or statements from acquaintances. by of the trial was witness The defense guilt phase only during Geffner, a who testified Scott Dr. Robert professor psychology, stress disorder. a brain suffers from posttraumatic impairment have a verbal that Scott does not Dr. Geffner good memory opined It is chose to believe and is exaggerate. apparent prone and did not believe Scott fabricated his own the State’s witnesses crimes. for these horrific culpability case, of this refusal to a new trial
Under the circumstances grant remarks of the is not in- based on the few prosecutor prejudicial Further, 60-261. with substantial See K.S.A. consistent justice. issue, to this we even a standard heightened scrutiny applying a doubt the evidence of was of conclude reasonable beyond guilt nature that the remarks such direct and overwhelming prejudicial to have had little the minds were likely weight prosecutor of the jurors.
CLOSING ARGUMENT the district court erred Scott contends allowing prosecutor statements made Wakefield’s defense attor- to read to the jury by trial. We in the Wakefield agree ney during closing argument was harmless. district court erred but conclude the error confes- At the center of this controversy alleged jailhouse trial, cellmate, Before dis- sion Scott to by Johnny McClung. to use in certain trict court Scott’s motion closing argument granted in the Wakefield statements made prosecution by prosecutor on the testimony. casting reliability McClung’s aspersions statements district court also allowed die State to read additional It made reliability. McClung’s appears prosecutor relating from the reasoned the statements the district court prosecutor’s Wakefield trial admissions of under qualified party opponent K.S.A. These are not in issue but offered in ex- 60-460(g). rulings as to the circumstances and issue planation precipitating ruling on presented appeal.
Over of Scott’s the district court also allowed objection attorney, to read to the statements made prosecutor jury following Wakefield’s Richard by attorney, Ney, during closing argument the Wakefield trial: Gavin Scott tells I did it. I killed them. I “[Ney]: Johnny shot McClung, ‘Hey, him,
’em. Yet this
was with
this
He didn’t do—he didn’t
guy
do
guy Trey.
anything.
fact,
down,
In
he sat
broke down and cried like a
And I
on him
baby.
put gun
”
and made him out of there. Made him leave.’
get
Courts
the same
as K.S.A. 60-
interpreting
hearsay exception
801(d)(2)
under Federal Rule of Evidence
have held the
460(g)
inconsistent statement
aof
in one trial is
prior
prosecutor
generally
admissible in a retrial of the same
See United
v.
States
person.
DeLoach,
1001,
(11th
1994);
34 F.3d
1005-06
Cir.
United States
Orena,
(2d
1994);
v.
32
Salerno,
F.3d
716
Cir.
United States v.
(2d
1991),
937 F.2d
Cir.
revd on other
505 U.S.
grounds
120 L.
(1992). However,
Ed. 2d
We conclude the district court erred in the State to allowing read to the Scott the above statements made Wakefield’s juiy in the former trial. Wakefield’s “a attorney attorney repre- fact, sentative” of Scott under Richard at- was 60-460(g). Ney to demonstrate Scott was the actual tempting perpetrator murders, not Wakefield. Wakefield’s interests were Clearly, penal to those of Scott. There is no basis for ad- directly contrary legal mission of this obvious hearsay.
Nevertheless, there has been an
inadequate showing
preju-
dice to Scott
from the use of the
statements.
resulting
Ney
Ney’s
statements was consistent with
representation
McClung’s
Scott’s trial. We conclude the use of
McClung’s testimony during
the statements constitutes harmless error
a reasonable
beyond
doubt. The error had no
likelihood
the result of
having changed
324, 335,
See State
trial.
271 Kan.
CUMULATIVE ERROR Scott contends cumulative errors denied him his to a fair right trial. We do cumulative trial errors be so recognize may great where, reversal aof defendant’s conviction under the require circumstances, the defendant and totality they prejudice 894, 1001, him or her a fair trial. P.3d deny Kleypas, (2001). However, no error be found under the prejudicial may rule of cumulative error if die evidence is against overwhelming Ackward, defendant. State
We have identified instances of trial error. We balance already the cumulative of that error the evidence impact against presented Scott’s We conclude the evidence demonstrating guilt. presented to the committed the crimes for overwhelming *28 which he has been convicted. even considered to- Consequently, the trial did errors not Scott’s to a fair trial gether, prejudice right or influence the verdicts of the jury.
GUILT PHASE CONCLUSION murder, Scott’s convictions of capital aggravated burglary, felony theft, and criminal of a firearm are affirmed. We reverse possession Scott’s conviction of murder because it first-degree premeditated is with his and, of conviction murder there- multiplicitous capital fore, in violation the of Double Clause of the Fifth Jeopardy Amendment to the United States and Constitution of the Kan- §10 sas Constitution Bill of turnWe next the Rights. sentencing issues raised on appeal. THE
CONSTITUTIONALITY OF WEIGHING EQUATION Scott contends the set forth in 21- K.S.A. equation weighing 4624(e) violates the cruel or unusual of punishment prohibition § 9 and due the of of the Kansas Constitution process provision § (Furse) 21-4624(e) K.S.A.
Bill of pertinent provides, Rights. part: vote, that or “If, a reasonable doubt one the finds beyond unanimous juiy by and in K.S.A. 21-4625 amend- circumstances enumerated
more of aggravating and, further, of such circum- the existence exist aggravating ments thereto which are found to circumstances stances is by any mitigating outweighed otherwise, death; exist, defendant shall shall be sentenced the defendant law.” be sentenced as provided by Bill of states: 9 of Kansas Constitution
Section Rights offenses, for except shall be bailable sufficient sureties “All persons re- Excessive bail shall not be or the evident presumption great. where proof inflicted.” nor cruel or unusual punishment nor excessive fines imposed, quired, of “All Bill states: 18 of the Kansas Constitution Section Rights suffered reputation property, person, persons, injuries law, administered due course shall have justice remedy by without delay.” violates 9 and 18 the contends the §§ weighing equation it mandates sentence Bill of because
Kansas Constitution
Rights
are found
when
circumstances
of death
mitigating
aggravating
balance, i.e.,
thus
to be in
preventing
equal
equipoise,
from
its “reasoned moral
cases”
“doubtful
response”
expressing
evidence.
mitigating
of the issue of the
A brief
constitutionality
weighing
history
21-4624(e)
frame-
will
of K.S.A.
necessary
provide
equation
this issue.
and our
work for
analysis
parties’ arguments
(2001),
P.3d
cert.
In State v.
Kleypas,
held
of this court
89
While Scott’s
was
the issue of the constitution
appeal
pending,
of the
once
came before the court in
ality
equation
weighing
again
Marsh,
520, 102
(2004).
v.
278 Kan.
445
State
P.3d
This court held
unconstitutional under the
weighing equation
facially
Amendment, and overruled that
in
of
which
Eighth
part Kleypas
the court
the avoidance doctrine to construe K.S.A. 21-
applied
4624(e)
Marsh,
An discussion decisions in and State v. in-depth Kleypas Marsh will not be here. The main for consideration presented point both of those decisions construed and applied Supreme Court’s death in whether the penalty jurisprudence determining 21-4624(e) in K.S.A. violated the weighing equation Eighth Amendment’s cruel and unusual prohibition against punishment. The decisions and State v. Marsh were bare Kleypas major- ities, with dissents on construction and vigorous majority’s ap- Court plication Supreme precedent.
Most
was whether the
specifically,
key
disagreement
point
issue of the
had
constitutionality
weighing equation
already
Arizona,
been resolved in Walton v.
497 U.S.
111 L. Ed. 2d
110 Ct.
S.
overruled on other
grounds Ring
Arizona,
536 U.S.
L. Ed. 2d
in Walton.
in
and
at
The
Kleypas
272 Kan.
1007.
Kleypas,
majority
Walton
State v. Marsh agreed
not control resolution
did
Marsh,
536-37;
v.
issue. See State
278
at
Kleypas,
Kan.
cases,
in
on the other
1006-07,
dissenters
both
1008-09. The
at
Walton was
and
hand,
issue
compelled
dispositive
argued
not
did
violate
that
the conclusion
equation
weighing
1125-27,
(Davis,
Kan. at
1130
272
Amendment. Kleypas,
Eighth
(Abbott,
After
concluding
that,
not,
forth
our death
if it did
“the
set
even
general principles
Kansas
would lead us to conclude
penalty jurisprudence
U.S.
548
is constitutionally
capital sentencing system
permissible.”
meets
individu-
at 173. The Kansas
sentencing system
Furman
Georgia,
alized
by
sentencing
imposed
requirements
346,
its
2d
92 S.
2726
33 L. Ed.
Ct.
U.S.
evi-
it
to consider
because
any mitigating
progeny
“permits
in-
determination”
and “does
dence relevant
its sentencing
terfere,
with a
in a
juiy’s ability
constitutionally significant way,
to evidence offered
mitigation.”
weight
give independent
dis-
at
channels
U.S.
175.
equation “merely
jury’s
weighing
it
determine
with criteria
which
cretion
it
may
by providing
U.S. at
life or
a sentence of
death
whether
appropriate.”
’
‘
discretion,”
177. Kansas’
type
“guided
system “provides
Walton,
at 659
U.S.
428 U.S.
[v.
(citing Gregg Georgia,
(1976)]),
Ed.
S.
49 L.
2d
96 Ct. 2909
have
we
sanctioned
*31
Walton,
(v.
370,
316,
494 U.S.
L.
108 Ed. 2d
Boyde California,
[1990]),
The United States Court’s decision in Kansas v. Marsh Supreme is the final on 21-4624(e) word of whether K.S.A. question violates the and Fourteenth to Amendments the United Eighth Hand, States Constitution. See Trinkle v. 184 Kan. 665, (under
P.2d
cert.
(1959)
denied
review clear. an unlimited standard which we exercise of law over question 923 P.2d 260 Kan. review. See State ¶Syl. Myers, constitution When the cert. denied 511 U.S. well- we are a statute is following ality guided questioned, rules: established be All doubts must resolved of a statute is “The constitutionality presumed. it stricken down must its the act bemay clearly appear favor of before validity, isit constitutionality, constitution. In that the statute violates the determining rather defeat it. If there is under attack than any court’s a statute duty uphold valid, that be should constitutionally to construe statute reasonable way the su down unless the A statute should not be stricken infringement done. Syl. law is substantial doubt.” Myers, clear beyond
perior ¶ 4. *32 of21-4624(e), we first must
In constitutionality determining of “cruel as that determine the or unusual” meaning punishment in 9. Do 9 to have a broader we § appears interpret phrase § Amendment to the than that to different meaning Eighth given what is our If the answer is United States Constitution? “yes,” 21-4624(e) and it render unconstitutional? does interpretation, death Scott contends core of principles penalty jurisprudence, Marsh, cannot embraced our majority opinions Kleypas Bill 9 and 18 the Kansas Constitution be under of disregarded §§ Marsh, that in v. the United States of He Kansas argues Rights. un- on the its own Court Supreme ignored precedent principles which the doctrine of individualized require sentencing, derlying to relevant be to effect that the any give sentencing jury permitted its moral so it can reasoned evidence response express mitigating relia- for to evidence—a fundamental tire requirement mitigating in the that death is the sentence. determination bility appropriate short, In Court was Scott Accordingly, wrong. argues Supreme Con- to find that 9 and 18 the Kansas this court urges §§ “a stitution Bill of demand rationality Rights greater degree in the determination than the Amendment reliability Eighth of- for an individual is an whether death punishment appropriate reaffirm, 9 and 18 of the asks court to under fender.” He this § §
93 Bill of Kansas Constitution its 272 Kan. Rights, holding Kleypas, 1016, at that fundamental fairness “tie to the de- requires goes when life or death is at fendant” issue. first
Scott’s
an
construction of
argument
independent
§
Amendment,
focuses on the textual difference between the Eighth
which
9,
“cruel and unusual
which
prohibits
punishment”
§
“cruel or unusual
prohibits
punishment.”
The State counters
that while this court has noted its
by arguing
state
construe
constitutional
of fed-
right
provisions independent
Constitution,
eral
of the federal
it
has
tradition-
interpretations
Nelson,
589, 597,
done so.
260 Kan.
252 Kan.
In
the defendant
the death
se
Kleypas,
argued
penalty
per
unconstitutional under
9 of the Kansas Constitution Bill of
§
The
rested
on the difference in lan-
Rights.
argument
primarily
however,
court,
noted it
The
the two
between
provisions.
guage
a
between the
of
“has
not drawn
distinction
analysis
generally
the state constitution
or unusual under
a
is cruel
whether
sentence
under the federal
is cruel
unusual
and whether
sentence
record behind
adoption
§
unusual,”
over “cruel and
“cruel or unusual”
chose the
ately
phrase
Our decision preclude today of a 9 when considering proportionality interpretation § circumstance, are free to further criminal sentence. In such we 9 should be record and decide whether consider the historical § deviates that to the in a manner which from given interpreted the United States Court. Amendment Eighth Supreme the United States next because Scott’s Supreme argument constitutional in Marsh was a retreat from the Court’s decision 21- in K.S.A. this court relied finding upon Kleypas principles 4624(e) unconstitutional, has a this court independently duty own state that statute under our consider constitutionality Owens, & v. McDaniel Scott cites State constitution. support, this court found which Bill of allowed Kansas Constitution Rights proportion § Estelle, Court Rummell v. after ality analysis Supreme
95 (1980), 382, 100 from 263, S. Ct. 1133 retreated L. Ed. 2d 63 U.S. Amendment. under the Eighth analysis proportionality its dissatisfaction with the in McDaniel The court expressed it had the now noted relied Rummell decision upon specifically its test in obsolete federal formulating proportionality precedents 362, Freeman, 223 forth in State v. set was “a retreat from the that Rummell Kan. at 184. Finding Freeman,” in and that recited which the [test] spawned philosophy that Court has the Rummell dispropor- “rejected] proposition Amendment,” the Court 8th tionality analysis required by stated: its on the 8th forces this court to reconsider reliance
“The Rummell decision
to Rum-
cruel or unusual
According
punishment.
Amendment
against
prohibition
the 8th Amendment
prison
mell we are not
question
length
required by
The McDaniel
Bill of
be invoked
9 of the Kansas
held “section
against
Rights may
sentence.”
Scott also
State Kennedy,
1983).
refused to
Court
adopt
Supreme
Kennedy,
Oregon
States
decision
the United
Court’s
Kennedy,
Oregon
Supreme
in which
U.S.
72 L. Ed. 2d
S. Ct. 2083
a retrial
where
the Court held double
bars
only
judicial
jeopardy
intended to
the defend
misconduct was
or prosecutorial
provoke
Dubose, 699
He
cites State v.
for a mistrial.
also
ant’s request
2005),
(Wis.
Wisconsin
N.W.2d
591-94
case which
follow the
States
Court refused to
United
Supreme
Supreme
188, 34 L.
2d
409 U.S.
Ed.
Court’s decision Neil Biggers,
(1972)
out-
Scott is
upon
deci-
Court
from United States
constitutions
Supreme
depart
*35
or
from a
sions
broader rule
constitutional
deviating
retreating
Miller,
207, 222-23,
law. See
v.
29
State
Conn.
Scott’s on this is based on the that argument point premise Court in Kansas v. Marsh retreated from the core Supreme prin of individualized Furman and its ciples sentencing developed We do not with Scott’s In Kansas v. progeny. agree premise. Marsh, no were called into prior precedents question rejected, created, no to a rule was nor were new exception prior any legal fact, announced. the decision rested on principles primarily Arizona, 639, 511, Walton v. 497 U.S. 111 L. Ed. 2d 110 S. Ct. 3047 the Court Additionally, controlling. analyzed statute under the Court’s mitigation jurisprudence, discussing 370, 108 316, 110 v. 494 L. U.S. Ed. 2d California, applying Boyde (1990); 299, 108 S. Ct. 1190 v. 494 U.S. L. Blystone Pennsylvania, 255, 110 (1990); Ed. 2d Oklahoma, S. Ct. 1078 v. 455 U.S. Eddings 104, 1, 71 (1982); Ohio, L. Ed. 2d 102 Ct. S. 869 Lockett v. 438 586, 973, (1978); U.S. 57 L. Ed. 2d 98 S. 2954 Ct. Franklin v.
97
(1988);
155, 108
164, 101
S. Ct. 2320
L.
2d
Ed.
U.S.
Lynaugh,
Ct. 2909
L. Ed. 2d
96 S.
U.S.
v. Georgia,
Gregg
2d
U.S.
33 L.
v.
Ed.
(1976); and Furman Georgia,
stated
the Court
In its
92 S. Ct.
specifically
holding,
is
the “Kansas
system constitutionally permissi
sentencing
in our death
set
“the
ble”
penalty
within
principles
general
forth
Thus, we
added.)
173.
con
548 U.S. at
(Emphasis
jurisprudence.”
than the
is
more
Kansas Marsh
clude the decision
nothing
statute at issue.
law to the
of well-settled
particular
application
as a retreat from
core
decries the decision
Although
of individualized sentenc-
the requirement
underlying
principles
that the Kansas Marsh
Scott’s
majority
wrong
ing,
argument
in Kansas v.
relied
on the same cases
based
majority
upon
*36
Moreover,
Souter’s dis-
same cases underlie
those
Marsh.
Justice
(Souter,
Marsh, 548
at 204-11
v.
U.S.
in that case. See Kansas
sent
Furman,
and
and
Gregg, Blystone,
discussing
J., dissenting) (citing
Furthermore,
others).
also relies
on
Scott
heavily
Boyde, among
on the same fine
in
which was based
decision Kleypas,
majority
Because or created new States Court legal deviating principle Supreme decisions from its sentencing jurisprudence, retreating prior capital to own constitution in which courts turned their state depart from Court decisions overruling altering, abrogating, Supreme do not constitutional provide persuasive support principles prior for so in this case. doing
We conclude Scott’s are that K.S.A. arguments persuasive 21-4624(e) should be held and unconstitutional under 18 of §§ Bill Kansas Constitution of Rights. decision, our also Scott Court’s
Anticipating argues Supreme 21-4624(e) of K.S.A. will additional in- interpretation require jury structions those capital sentencing proceedings beyond presently will need to be informed given. argues sentencing juries equi- is not the factor and told have the poise determining they power after and cir- dispense mercy weighing aggravating mitigating cumstances. Marsh, that under Kansas v.
Scott also must be argues an instruction of a life as the given presumption imprisonment sentence death sentence can if be appropriate only imposed is overcome the State. For Scott cites presumption support the instruction on the innocence PIK Crim. 3d presumption 52.02.
We do not find Scott’s additional instruc- arguments support Kansas tions Marsh cannot be read to an persuasive. require fact, additional the United States Su- beyond step weighing. Court reasoned a decision that the preme specifically aggravating factors are is a decision mitigating equipoise supporting of the death imposition penalty: rests on “[Marsh’s] an argument characterization the Kansas stat- implausible ute—that a determination jury’s are in aggravators mitigators equipoise decision, is not a much less a decision death —and thus misses the mark. end; is [Citations not an it omitted.] a means to Weighing merely reaching *37 decision. The decision the must reach is whether life or death is the jury appro- The Kansas priate punishment. instructions inform the a jury that clearly jury determination that the evidence is in is a decision for—not a equipoise presump- in instructions, tion favor of—death. Kansas to follow their jurors, are presumed made aware that: a determination that is a deci- mitigators outweigh aggravators sion that a life is sentence a determination that appropriate; aggravators outweigh aor determination that do not mitigators mitigators outweigh aggravators—in- a that and in are balance—is a cluding finding aggravators decision that mitigators sentence; death is the and an to reach a appropriate unanimous decision inability informed,
will a result in sentence of life So from far the abdication imprisonment. of or the to select an duiy sentence Marsh and inability appropriate depicted by Souter, a conclusion that and evidence evi- juiy’s aggravating mitigating Justice dence in are is a decision death and is indicative of the of equipoise type measured, a is tasked to in which engage normative constitutionally process jury a 548 U.S. sentence for defendant.” when deciding appropriate 179-80. at misconstrued Court’s discussion has also
Scott Supreme 21-4624(e) for life or creates a K.S.A. to whether presumption the Court noted the State bears In its death. majority opinion, death, of in to secure a sentence turn at burden attempting every burden is not to bear the defendant and beyond pre- any required Marsh, U.S. circumstances. See Kansas senting mitigating context, comment Read in the Court’s does 178-79. at require is the that life instruction of presumption imprisonment can be that sentence of death sentence and only appropriate is the State. if the overcome presumption imposed OF RELAXED CONSTITUTIONALITY STANDARD EVIDENTIARY standard for the relaxed evidentiary penalty argues 21-4624(c) it is because forth in K.S.A. unconstitutional set phase with fundamental due is process. incompatible 21-4624(c) in K.S.A. provides, pertinent part: “In the evidence be any may presented concerning sentencing proceeding, include court deems relevant to the of sentence shall matter that the question 21- K.S.A. circumstances enumerated matters relating aggravating any such evi- thereto and circumstances. any Any amendments mitigating have be received dence which the court deems to value probative may regardless evidence, of the defendant its under rules of admissibility provided to rebut statements. such evidence accorded a fair any hearsay Only opportunity state made known to defendant circumstances as the has prior aggravating admissible, no shall be evidence secured proceeding sentencing of Kansas shall be violation of the constitution the United States state admissible.” Arizona, that, Court in
Scott contends
because the
Ring
153 L.
2d
In United States v.
(2d
2004),
360
135
Cir.
F.3d
the court
the Federal Death
held
Act’s relaxed
standard
Penalty
evidentiary
constitutional,
the relaxed
standard does not
stating
evidentiary
“
or relevance of information at
sen
Impair
reliability
capital
“
”
but rather
the individ
tencing hearings,’
‘helps
accomplish
”
ualized
the constitution.’
shall attorney upon to determine whether the defendant to request separate sentencing proceeding and Such notice shall be filed with court served should be sentenced death. later after the or the defendant’s not than five days on defendant attorney filed served as this If such notice is not and time required by arraignment. subsection, such not a sentencing or district may county attorney request murder, defendant, shall be sentenced and the if convicted of capital proceeding of death shall be to life without the and no sentence possibility parole, imposed hereunder.” States, 227, 143 526 U.S. that under United argues Jones (1999), 311, 119 v. New
L. Ed. 2d
S. Ct. 1215
and
Jersey,
Apprendi
147
Ed.
Scott’s Apprendi argument persuasive. Jones that, under the stand for grand jury provision proposition trial Fifth Amendment the notice and provision Amendment, in- conviction that fact other than a Sixth any prior in an crime must be the maximum creases charged penalty indictment, a reasonable submitted to a beyond proven jury, However, that that the doubt. Scott fails requirement recognize cases, be in an indictment federal such facts only applies charged 102
as the Fifth Amendment’s
does
jury provision
grand
apply
the states
the Fourteenth Amendment. See
v. Ari
through
Ring
zona,
n.4;
at
n.3;
U.S.
Second, the
notice
for state cases would be
only
requirement
Hunt,
the Sixth
Amendment.
See
N.C.
through
(2003)
The SixthAmendment
that the defendant be
only
requires
given
Bablitch,
“notice and an
to
Fawcett v.
962
opportunity
respond.”
(7th
1992).
“[njotice
F.2d
618
Cir.
Such
must be sufficient to
make the
useful.”
Under K.S.A. the State is to required provide defendant with notice of the State’s intent seek to the death penalty no later 5 than done, Once the de- days following arraignment. fendant is on notice the State will to at least one put attempt prove of the factors listed in K.S.A. 21-4625. Of those eight aggravating the State must the defendant factors it eight, notify specific will be to to the attempting prove “prior sentencing proceeding.” 21-4624(c). K.S.A. This notice is sufficient to the defendant a give to to the factors meaningful opportunity respond aggravating him or her. The factors are against eight aggravating sufficiendy that, cases, distinct in all almost it will be to defendant apparent to trial which factors the will State be on. Even prior relying event there is some as to the factors that will relied be ambiguity on, the State the exact factors to the required provide prior This is sufficient to the Sixth Amendment penalty phase. satisfy notice provision. MISCONDUCT DURING FIRST
JUROR PENALTY PHASE TRIAL misconduct die first trial argues juror during penalty phase this mis- that because of life. He contends him a verdict of denied conduct, could not be of death a sentence constitutionally imposed. trial, deliberated the first days
In jury phase penalty verdict, Scott verdict of death. a before Following returning had im- trial, several for new filed a motion jurors arguing material and other the Bible read from during religious properly to recall it was trial court decided deliberations. appropriate and hold a die hearing. jurors from and some it was clear Bible
At the copied pages hearing, in, and were Catholic catechism a Roman relating brought passages How- some were consulted jurors. mercy punishment her affected his or material ever, the extraneous no testified juror Nevertheless, court determined the trial deliberations any way. free from that the verdict be case it was important aside influences, be set the verdict should and therefore outside trial conducted. and a new phase penalty had the of life have received verdict he would Scott argues sources, Kansas law and outside not been influenced by that he not be the Fifth Amendment subjected again require contention, he cites K.S.A. this the death penalty. support in 21-4624(e) court’s Stafford, and this opinion Missouri, (1994), as well as Bullington S. Ct. 1852 L. Ed. 2d U.S. *41 “If, after (Furse) in 21-4624(e)
K.S.A. part: provided, pertinent a deliberation, unable to reach time for a reasonable jury a verdict, sentence dismiss the shall jury impose judge clarified In law.” legislature provided imprisonment life conditions, for a sentence of that, the law under these provided 21-4624(e) K.S.A. without possibility parole. imprisonment (Torrence). that, dis- the trial court
In State v. Stafford,
we held
where
in a hard 40
an alternate
a
and substituted
juror
charged
juror
cause because
without reasonable
juror
original
proceeding
decision,
thereafter be
the defendant could not
to reach a
not able
reasoned:
40.
jurors facts factor can itself be a “The of the exercise mercy mitigating appropriateness a reason- whether the State has consider proved beyond may determining you death should be able doubt imposed. penalty which tends to circumstance “You consider any justify may mitigating You must consider all evidence of of life mitigation. Mitigation penalty prison. You not refuse evidence introduced either be established by party. may may by any to consider all mit- to consider evidence in The law any mitigation. requires you to refuse to consider such evidence. Therefore are not you permitted igating added.) evidence.” (Emphasis instruction above Scott’s instruction to supplement proposed reads: a reasonable “A circumstance does not have to be beyond proven mitigating must find a mere of the evidence. You mitigating doubt but aby preponderance it. exists if there is substantial evidence Additionally, circumstance any support circumstances, unan- which must be
unlike proven agreed upon aggravating an individual basis circumstances must be determined on by imously, mitigating each member.” in- we also note two other
Before with an proceeding analysis, court issue structions the trial presented. pertaining given verdicts, informed Instruction No. potential explaining the jury: deliberations, shall the verdict form upon “At the conclusion of sign your you alternative verdicts: for the
which The verdict form following you agree. provides *43 verdict; That “1. are to reach a unable unanimous you or “2. That have a reasonable doubt that you circumstances are not aggravating circumstances, and Mr. outweighed by any Scott should be mitigating sentenced law; the court as or by proved by “3. That you reasonable doubt unanimously that there are one beyond find or more circumstances and are not aggravating they by outweighed any mitigating circumstances, added.) and sentence Mr. Scott to death.” (Emphasis
Instruction No. 8 the trial court given by explains weighing to the as follows: process jury “In the determination whether making circumstances exist that are aggravating circumstances, not outweighed by any should mitigating mind that you keep decision should not be
your determined the number of solely by or aggravating circumstances that are shown to mitigating exist. a reasonable you doubt that there beyond are one or more aggravating “If find circumstances and circumstances, are not they outweighed by any mitigating death, then death, you sentence may impose sentence Mr. Scott to you you if must the verdict with designate upon circum- particularity aggravating form stances which you reasonable doubt. beyond found have a reasonable doubt that you circumstances are not out- aggravating “If circumstances, weighed by any then shall so on mitigating indicate ver- you your dict form, Mr. Scott will not be sentenced to death but will be sentenced by the court added.) law.” provided by (Emphasis
The issue Scott raises was There, considered Kleypas. jury was instructed as follows: “It is not that all necessary jurors agree upon circumstances particular facts
in mitigation punishment. “If as a determine that you juror there are facts circumstances in mitigation sufficient to punishment circumstances, the evidence of outweigh aggravating then must added.) not return a verdict you of death.” (Emphasis Kleypas, Kan. at 1077.
This court held the first sentence of the instruction was sufficient to address the concern the believe was re- jury might unanimity as to circumstances. 272 However, Kan. at 1079. quired mitigating we noted: instruction with “[Ajny the consideration of dealing circumstances mitigating (1) should state need to be they the satisfaction of proved only the individual in the
juror decision juror’s and not a reasonable sentencing beyond doubt and (2) circumstances do not need to mitigating be found all members of the by juror’s sentencing in an individual in order to be considered decision.” at 1078. However, was decided this court after Scott’s trial.
Kleypas juiy of the above instruction in the first sentence Kleypas present in Instruction No. 5 or No. 8.
In addition to the instructions we have
we have
emphasized,
considered all of the other instructions
the trial court in
given by
an
decide whether
could have
effort to
been mis-
jurors
reasonably
*44
led to believe
was
as to
circum-
unanimity
required
mitigating
stances. Read
the instructions
together,
repeatedly emphasize
need for
as to
circumstances found to
unanimity
any aggravating
exist.
the trial court’s instructions do not inform the
Conversely,
as to a
standard for
circum-
jury
contrary
determining mitigating
stances. The
is left
to the correct standard.
jury
speculate
circumstances,
Under these
we conclude there is a substantial
reasonable
could have believed
probability
jurors
unanimity
find
circumstances. We hold failure of the
required
mitigating
trial court to
with a
standard for determin-
provide
jury
proper
circumstances constitutes reversible error. See Mills
ing mitigating
486 U.S.
100 L. Ed. 2d
Scott claims a number of additional errors in the penalty phase, which could be because of our decision disregarded reversing death sentence and for a new remanding sentencing proceeding. will, however, We address the issues to remaining provide guidance because could in the arise retrial of the See they penalty phase. White, 326, 342, (2005). 279 THE AGGRAVATING CIRCUMSTANCE OF CREATING
A RISK OF DEATH TO MORE THAN ONE PERSON Scott this court should set aside the he argues jury’s finding created a risk of death to more than K.S.A. one See great person. 21-4625(2) (“The defendant killed or cre- knowingly purposely ated a risk of death to more than one person.”). great Specifically, (1) a Scott makes three based on the death of arguments: finding as it an Brittain is unconstitutional element of duplicates Douglas murder; (2) a based on risk of death to the capital finding great evidence; and, (3) three Brittain children is not supported by event, the trial court failed to an alternative any give jury acts instruction.
A. Death of Brittain Douglas
The intentional
murder of
Brittain is an
premeditated
Douglas
element of the
murder conviction.
allow-
argues
of the element as an
circumstance con-
ing duplication
aggravating
stitutes double
and fails to channel
discretion in the
counting
We do not
with Scott’s
weighing process.
agree
analysis.
In order for a
scheme to
constitutional
capital sentencing
pass
muster, it must
narrow the class of
“genuinely
persons eligible
the death
and must
of a
penalty
reasonably justify
imposition
more severe
sentence on
defendant
to others found
compared
of murder.” Zant v.
462 U.S.
77 L. Ed.
guilty
Stephens,
2d
Scott is correct
Stringer
distinguish Lowenfield
However,
states.
it does not
some
with
to weighing
respects
regard
Rather,
stands for the
address the issue before us.
follow-
Stringer
Where a scheme uses an
factor
de-
ing proposition:
aggravating
for the death
who shall be eligible
penalty,
aggravating
ciding
which,
matter,
factor cannot be one
as a
fails to
practical
guide
See 503 U.S. at
sentencer’s discretion or
vague
imprecise.
that,
state,
235-36.
does not indicate
it is
Stringer
weighing
to use the same factor
both
guilt
penalty
impermissible
Rather,
states,
that in
it is not
reasons
weighing
phase.
Stringer
correct to
that because there is
at the
phase,
say
narrowing
guilt
the use of
factors at the
is of no consti-
aggravating
penalty phase
tutional moment. See
before us: whether the use of the same factor as both narrowing at and an for the death aggra qualification penalty guilt phase the class of factor at the fails narrow phase persons vating penalty convicted of murder who are for the death penalty. eligible this vast that have considered jurisdictions majority weighing held such a use is have also constitutionally permissible. question State, (Ala. 487-88 Crim. See Kuenzel v. 577 So. 2d App. (1992); 1990); State, v. 308 Ark. S.W.2d Johnson 907, 945-46, 269 Marshall, 50 Cal. 3d Cal. People Rptr. 301-02, (1990); State, 343 Md. 681 A.2d P.2d 676 Oken 2001); (1996); (Utah 376-77 see also 20 P.3d Lafferty, *46 (3d 1994) (inter 19 F.3d 1501-02 Cir. v. Deputy Taylor, law); Gibson, Revilla v. 283 F.3d Delaware preting 2002) law); (10th United Cir. out of Oklahoma States v. (arising Chanthadara, (10th 2000) 230 F.3d Cir. (interpreting federal Death Act and of a fac “[T]he Penalty stating: duplication tor factors and factors does not between gateway aggravating sentence); undermine the constitutional validity Johnson (11th 1993) 991 F.2d 668-69 Cir. (interpreting Singletary, law). Florida
Scott also that the same conduct to make a crime argues using murder and also it as an factor is capital using aggravating contrary contention, law. In of this he PIK to Kansas cites Crim. support 56.00-C, 3d which circumstances are provides “[aggravating those which increase the or of the crime add guilt enormity its but which are above or injurious consequences, beyond elements of the crime itself.” Scott out that because the points intentional of more than one is an element of killing person murder, it as an factor would mean it was not using aggravating circumstance above or the element of the crime itself. beyond However, out, PIK are well instructions although generally thought do not the obvious intent of the State See they trump legislature. Kan. at 1063-64 a PIK instruction Kleypas, (holding law). to Kansas intended for the contrary legislature clearly conduct to be used both as a and an PIK Crim. qualifier aggravator. 3d 56.00-C should be modified to conform to Kansas law.
We that have concluded join majority jurisdictions dupli- an element of the crime as an circumstance cating aggravating of the trial is constitutional and conforms to penalty phase intent. legislative
B. of the Evidence Sufficiency
Scott next the evidence is insufficient to establish the argues created risk of death to the Brittain children. He killings great contends to the Brittain children was too remote in any danger satisfy aggravating time to the murders to factor under K.S.A. 21-4625(2).
This court has this same factor analyzed previously aggravating in the context of hard 40 sentences and has held that for the factor there must be apply,
111
to
and the
the
risk of death
another
between creating
great
“a direct relationship
homicide,
the
it must
with
but
need not be
The risk
contemporaneous
homicide.
263 Kan.
murder.” State v.
the
the
Spain,
in
course
committing
charged
occur
1004
953 P.2d
is
cases demonstrates
issue
of Kansas
A
presented
survey
Brown,
See,
v.
272
State
and not
resolved.
intensive
fact
easily
e.g.,
809, 818-22,
(2001)
P.3d 31
of house where
37
Kan.
(occupant
119, 139-
death);
v.
271 Kan.
to
State
victim
Lopez,
bludgeoned
(2001) (defendant
at
driver
1040
shot
P.3d
moving
Saiz,
v.
State
another
was
vehicle which
passenger
present);
(mother
657, 667,
(2000)
of the
We can great only speculate why argue three Brittain children should be considered of death to risk Scott’s the State was concerned because of jury. Very likely the murder of Brittain. of double Douglas argument counting event, Brittain we have decided tire because killing Douglas any and ordered new this circumstance penalty supports aggravating trial, arise on it is whether the issue would uncertain again phase this for us to now decide there is no reason remand. Consequently, issue. on
C. Failure to Instruct Unanimity with risk death Scott’s final “great argument regard is that the district court than factor more one person” aggravating had to to instruct erred unanimously agree they failing jurors Scott con- act to circumstance. on a specific prove aggravating where, here, on alternate bases the State relied two tends as factor, the it must unan- must be instructed for aggravating jury act for die on which basis finding imously agree above, reason there no reason factor. For the same aggravating us to address this issue it because is not certain whether it would arise on remand. again
THE AGGRAVATING FACTOR SCOTT COMMITTED THE CRIME FOR PURPOSE
OF RECEIVING MONEY
Scott contends the
should not
been
have
allowed to consider
*48
the
factor that
defendant committed the crime
“[t]he
aggravating
the
defendant’s self or another for the
purpose
receiving
or
other
value.” See K.S.A. 21-
money
any
thing monetary
4625(3).
21-4625(3)
He first
to murder-for-hire
argues
only applies
situations or where the defendant kills the victim to obtain
in
an
heritance. He also
a broader
un
statute is
argues
reading
constitutional under die
Amendment. We have addressed
Eighth
this
in a manner adverse to Scott’s
in
con
question
argument
text of the hard 40
Cromwell,
factors. See State v.
253
aggravating
495, 513, 856
(1993).
Kan.
Cromwell,
P.2d 1299
we stated: “The
has said
it
to take the life
legislature
particularly egregious
of another to obtain
and
of the statute
“[t]he
property”
language
is not
limited to cases
murder for hire.” 253
expressly
involving
513;
Deiterman,
Kan. at
see
State
975, 993,
also
v.
271 Kan.
29
(2001)
P.3d 411
circumstance satisfied where
(finding aggravating
defendant shot victim in
wallet);
order to obtain victim’s
v.
State
Murillo,
281, 288-89,
269 Kan.
7
(2000)
P.3d 264
(finding aggra
circumstance satisfied where defendant committed the
vating
crime
cocaine);
Vontress,
while
obtain
to
v.
State
Kan.
266
trying
248, 259,
(1998)
The is whether this construction would remaining question Amendment. Scott the Amend- with the argues Eighth Eighth port channel the sentencer’s dis- ment factors to aggravating requires and cretion clear and standards providing specific by objective detailed guidance. 420, 427-28, Ed. 64 L. 2d U.S. Godfrey Georgia, a 100 S. the Court held that death scheme Ct. penalty “ the few cases
must
basis for
provide
distinguishing
‘meaningful
it
the
cases which
in which
is
from
[the
imposed
many
penalty]
”
the
discretion
not’ and the scheme must “channel
sentencer’s
is
‘clear
that
detailed
standards’
objective
provide ‘specific
im-
that ‘make
reviewable the
for
process
rationally
guidance,’
”
of death.’
sentence
posing
of the
reasons
fails
any
why application
aggra-
provide
or
factor at issue to
would
murder/robbery murder/burglary
vating
The
of the
is to dis-
violate these
channeling
requirements.
point
from
which are
death
murders
penalty
eligible
tinguish
murders
not. See
which are
Zant v.
FAILURE TO DEFINE “THE CRIME” Scott contends trial court erred in instruct fading explicitly crime,” “the that for the factor jury purpose aggravating defendant committed the crime for the self “[t]he defendant’s or another for the of or other purpose receiving money any thing value,” meant the murder of Elizabeth Brittain. monetary capital instruction, He without such an there have argues explicit may been as to confusion “the crime” necessary support factor. aggravating Instruction 4No. states Scott “committed the crime for the
Jury other value.” purpose receiving money any thing monetary of the instruction is taken from PIK Crim. 3d 56.00- language C(3), which is entitled Murder-Death “Capital Sentence-Aggra- Circumstances.” vating
Because we have concluded Scott is entitled to a new already trial, we choose to of this issue sentencing dispose summary fashion. The “the crime” is inadvisable under the circum- phrase and, circumstances, stances of this case under other might very well be 56.00-C(3) PIK Crim. 3d should be revised to prejudicial. remand, crime of murder. On specifically designate capital trial court should conform its instruction to specify charge murder.
PROSECUTORIAL MISCONDUCT
Scott contends the State committed
misconduct in
prosecutorial
several instances
He
during closing argument.
argues
prose-
*50
cutor asserted he had “no
to ask for
asserted
earthly right
[mercy]”;
remorse”;
he showed
asserted his mental illness did not
“phantom
crimes;
him from
the
referred
the
prevent
committing
impact
the
crimes on the Brittain
misstated the law
family;
regarding
death to more
risk of
factor
of the
the
“great
aggravating
meaning
fact not in evidence.
referred to a
than one person”;
the
miscon-
in
stated
As we
prosecutorial
analyzing
previously
a two-
review
the
issue from
duct
requires
appellate
guilt phase,
the com-
First,
court decides whether
the appellate
analysis.
step
the
is allowed
the wide latitude
were outside
ments
prosecutor
Second,
court decides
the
the evidence.
appellate
discussing
is,
error; that whether
comments constitute
whether those
plain
defendant and de-
the statements
jury against
prejudiced
a fair trial. State
nied the defendant
Swinney,
Tosh, 278 Kan.
(2006)
P.3d 261
Syl. ¶¶
(citing
[2004]).
91 P.3d
court
In the second
analysis,
appellate
step
two-step
(1)
the misconduct
three factors: whether
considers
following
ill will
(2)
misconduct shows
on
whether the
is gross
flagrant;
(3)
whether the evidence
against
part;
prosecutor’s
nature that the
a direct and
defendant is of such
overwhelming
in the minds of the
have had litde
would
misconduct
weight
likely
factors is
None of these three
individually controlling.
jurors.
the first two factors
Moreover,
not override
the third factor may
60-261 and
of both K.S.A.
the harmless error tests
unless
Chapman
18, 17 L.
2d
87 S. Ct.
386 U.S.
Ed.
v. California,
60-261,
Under K.S.A.
This court discussed misconduct prosecutorial commenting on the of in State v. where we stated: concept mercy Kleypas, case, “In a it is for the be able to evaluate important jury whether a defendant is however, As mercy same it deserving part concept, clearly for a the proper prosecutor argue We hold that against it is granting mercy. for the that proper the defendant prosecutor is not argue the deserving jury's actions, because of the mercy defendant’s as the does not long prosecutor state the law to the improperly that it is from arguing jury prohibited granting to the defendant mercy because the defendant showed none to the victim.” 272 Kan. at 1110-11. contention, Scott’s the comments in this
Despite prosecutor’s case were aimed at Scott did not deserve At clearly arguing mercy. no time did the the was from prosecutor argue jury prohibited Rather, Scott told the showing mercy. prosecutor explicitly jury that would be an Further, “act of granting mercy grace.” pros- ecutor that when the were Scott’s requested jurors considering plea for also consider moral result, As a mercy, they these culpability. comments were not improper.
B. of “Phantom Remorse” Argument Scott addressed the and made During penalty phase, statements: following know, “I wanted to tell just, you I was for the stuff that everybody sorry hap- know. I pened, you grew from I up mostly away was in and my out of family. homes. I know what boys’ it’s like. And now I had two sisters like the just young and I know all boy, around, they’re without their gonna grow up parents you know, to, ain’t know, that they chance I got make amends with got you my And, for the know, that family life. things I happened my can’t—I you can’t to show apologize how I am enough for the sorry And I things happened. wish I could take it back. I can’t. know, All’s I can do is ask drat you guys, you see how true I am about know. Don’t my you sentence me apology, to life—I mean, sentence me to life and not death. all That’s I have to say.” closing, prosecutor argued: factors, "These two aggravating and the destroyed destruction of drat family increase family things this man’s crime enormity to level where nothing remorse. Certainly phantom Not it. Not pitiful background. age. outweighs added.) Not even mercy.” (Emphasis was a remorse” the term the use of contends “phantom of Scott’s comment on credibility, opinion prosecutor’s improper. *52 506-07, P.2d 321 Pabst, State v.
In that, in and held Criminal Standards of the ABA we cited Justice not state their should personal opin- argument, prosecutors closing In Scott’s re- defendant. of the as to the ion labeling credibility in fact in this case did state morse as prosecutor “phantom,” Thus, this statement as to Scott’s his credibility. opinion personal remand, On this misconduct. did constitute argu- prosecutorial should not be ment permitted. Illness Scott’s Mental
C. Regarding Argument argued: prosecutor and brain cite his mental illness damage. Interestingly “Several mitigators His brain Dr. said. that congenital remember Cunningham something enough, it tested like a murderer. Is sur- murderers. He is consistent with other damage commits two who he these Could anyone pre- then that has problems? prising normal? Does be mentally meditated murders for obtaining things purpose disorder, or their of those treatability or reactive attachment any things depression crime? for this reduce Scott’s moral culpability blame, these two him mental state did not committing “His his prevent from murders, kids in did him those did not placing danger, keep premeditated from it. to the about not him keep lying from Sheriff “Besides, Gavin as a historian. Dr. He described remember poor Cunningham. of the Brittain res- described the Remember how well this historian layout poor Oliver, This is a it out in detail. how he drew excruciating idence for Holtz 1996. He was of all of his senses on man who is command September He have to commit the memory. may the Brittain home layout long enough little to the mental but weight aggravating they weigh compared problems, added.) circumstances.” (Emphasis were because these statements they improper argues evi- not to to convince give weight mitigating sought crimes. it not excuse the dence because did held: we Kleypas, certain circumstances should that for a prosecutor argue “[I]t improper or do not excuse circumstances because justify be considered as they mitigating the crime. circumstances are those which in fairness be ‘Mitigating consid- may ered as of moral extenuating or blame or which reducing degree culpability death, a sentence of less than even do not justify or excuse the though they justify offense.’ A [Citations who omitted.] circum- prosecutor argues mitigating stances must excuse or the crime states the law.” 272 justify Kan. at improperly 1103. hand, however,
In the
at
case
did not
prosecutor
argue
Scott’s mental illness should not be considered because it did not
context,
excuse or
the crime. Read in
was that
justify
argument
Scott’s mental illness was
be,
not as severe as he made it out to
because it did not
him from
the crimes.
“prevent”
committing
Granted, there is some
in the statement that Scott’s
suggestion
mental illness did
However,
not excuse his
taken in
culpability.
context, these statements did not contravene the “considerable lat-
itude”
are allowed in
on the evidence.
prosecutors
commenting
See
D. of the Crimes on the Brittain Argument Regarding Impact Family
Scott next
the
commented at sev-
argues
prosecutor improperly
eral
on the
of the crime on the Brittain
junctures
impact
family.
He contends these comments were
because victim im-
improper
evidence is not relevant to
factor in
pact
Kansas.
any aggravating
An examination of the record reveals several times
the
during
when the
prosecutor’s
mentioned the
closing argument
prosecutor
effect of the murders on the Brittain
occasions,
On several
family.
the
the Brittain
prosecutor argued
“destroyed
family.”
also
Scott’s
with his
prosecutor
did not
argued
relationships
family
bear much
to “the
that can never
weight compared
relationships
be ever
thanks to his deliberate actions.” In
on
again
commenting
Scott’s
the
stated:
culpability,
prosecutor
acts,
is not
“[Scott]
for his
only
responsible
the
physical
breaking
through
girls’
bedroom,
them,
them,
confronting
the
threatening
Brittains
their
murdering
he is
for those acts
sleep,
morally
and their
culpable
results. The shattered lives
he left behind.”
Under the
Constitution,
United States
victim
evidence
impact
is admissible in a
Tennessee,
case.
501 U.S.
Payne
L. Ed. 2d
S.
111 Ct. 2597
In
the United
Payne,
States
Court stated:
State
conclude
“[A]
Supreme
may properly
that for the
to assess
the defendant’s moral cul-
meaningfully
blameworthiness,
it should have
it at
before
the sen-
pability
of
evidence
the
harm caused
the defend-
tencing phase
specific
by
ant.”
The issue is such whether evidence is admissible under Kansas 21-4624(c) “[Ejvidence law. K.S.A. be provides: may presented matter that the court deems relevant the concerning any ques- tion sentence and shall include matters relating any circumstances enumerated in K.S.A. 21-4625 and aggravating amendments thereto and circumstances.” We con- any mitigating clude of21-4625 consideration victim plain language permits if evidence such evidence is relevant to impact question sentence, i.e., an factor. aggravating mitigating case, this
In most remarks were not based prosecutor’s Instead, on traditional victim evidence. his remarks were impact aimed at act more on involved than the actual describing impact of the crime on the survivors. The statement related only perhaps to the of the crime on the victims is the statement that impact evidence of Scott’s should be little relationship family given to the his crime severed. We hold weight compared relationships statements were relevant to the of sen- prosecutor’s question tence and therefore not improper.
E. anof Factor Misstating Meaning Aggravating Scott next contends the committed misconduct prosecutor of an factor. misstating meaning aggravating discussing *54 and, factors the State more the aggravating by alleged specifically, defendant’s a risk death to more than one creating great person, the made the statement: prosecutor following “The first is: That the defendant or killed created knowingly purposely risk of death to more than one great person. the that man Brittain which that says destroyed “That is sterile legal terminology He shot circumstance exists. Doug is no doubt that this There aggravating
family. That is more than one enough.” to death in their Killed person. and Beth sleep. law. not to misstate the with the A duty charged prosecutor however, in statements, this case the above With the prosecutor Scott “de- risk death came about when the was great arguing and Eliza- both the Brittain Douglas stroyed family” by shooting trial, at the of the evidence beth Brittain. Within context presented court, trial instructions closing complete by given we do not conclude of the prosecutor’s arguments parties, in allowed fell considerable latitude statements outside arguing the evidence.
F. Facts Not in Evidence to Referring misconduct final with Scott’s contention regard prosecutorial evidence; in referred to fact not is that the specifically, prosecutor and Wakefield “took of the Scott statement prosecutor to the Brittain house. Scott con- .22 rifle with them” caliber pump the rifle to the house there was no evidence took tends they However, was unclear while it it the house. opposed finding from, the rifle did rifle came from the evidence where the pump Scott, confession, Further, in his on it. have Wakefield’s fingerprint be- with a “cut-down We his armed stated gun.” accomplice that Wakefield lieve was a inference from the evidence it fair result, at with him. As a this statement the .22 rifle issue brought did constitute misconduct. FORM
USE OF SPECIAL VERDICT into evidence the trial court erred Scott contends admitting from the verdict form guilt phase phase special penalty kill killed or intended to individually personally stating Scott, this and Elizabeth Brittain. finding According Douglas it should have been a away taking penalty phase, part to have the him the from the the district court denied jury, right make the finding. there was some form arose because verdict Use special fired it or Wakefield who as to whether was Scott actually question *55 court, counsel, the fatal shots. The trial after with conferring gave a form the verdict to it to make a determination special jury asking as to whether Scott and or killed intended “individually personally to kill” each the victims. of The made the Scott killed jury finding or intended kill to both and Elizabeth Brittain. Douglas Florida, 782, 797,
In
Enmund
U.S.
73 L. Ed. 2d
(1982),
102 Ct.
S.
the United States
Court held the
Supreme
Amendment forbade the
of the death
Eighth
imposition
penalty
on
. .
a
“one
. who aids and abets
in the course of which
felony
kill,
murder is
but
committed
others
who does not himself
kill,
to
or
that
intend
take
or that lethal force
attempt
killing
place
Arizona,
will be
Tison
481 U.S.
employed.” Subsequently,
95 L. Ed. 2d
of murder was based on a capital theory aiding abetting, trial court’s of law instructions in the were sufficient guilty phase and the verdict was not special necessary.
There does remain the issue toas whether introduction of the verdict form at the was error. The issue is special penalty phase unusual, as there would be the same for both ordinarily jurors Here, of the trial. there was the unusual circumstance of phases different trial. completely sentencing error, if Even we assume it is difficult see under the circum- stances this case how there was to Scott. A sen- any prejudice informed has to be the defendant is necessarily going tencing jury for the intentional murder been convicted premed- of the same act than one more itated part person killing Here, that Scott the evidence was transaction. overwhelming *56 verdict form at most the shooter. the actual Introducing special the of the at the conclusion obvious phase guilt emphasized killed” Brittain and trial—Scott Douglas “individually personally Brittain. and Elizabeth it and verdict form not the
We conclude necessary, special remand, On in for use future is capital proceedings. disapproved has been found however, will be informed Scott the sentencing jury for the intentional of murder killing premeditated guilty capital of Brittains. the
PENALTY PHASE CONCLUSION murder of for the Scott’s sentence first-degree premeditated the of death for Brittain is vacated. His sentence capital Douglas vacated, re- is also and the matter is of Elizabeth Brittain murder a with instructions to hold new manded sentencing hearing with our other consistent holdings. with the sentence of death
Affirmed and reversed part part, for a the to the district court new case remanded vacated cap- ital sentencing proceeding.
Nuss, J., participating.
Knudson, S.J., assigned. in the reached the I concur result by J., concurring: Johnson, of take issue with the but write to applicability majority separately 21-4625(3). factor K.S.A. aggravating 21-4625(3) that K.S.A. should I with Scott’s ap- argument agree a an or to obtain scenarios as murder-for-hire to such killing ply to a defendant from the victim. The inheritance provision speaks someone “for of or murdering purpose receiving” money prop- a direct connection between the murder of a erty, suggesting spe- cific of or of because acquisition person money property of death that person.
I that our cases in hard 40 context have acknowledge prior construed the same a murder which occurs language encompass view, or cases, in those collaterally robbery burglary. my the defendant murders for the purpose facilitating taking or for the money property purpose avoiding being caught crime without to the property particular any regard identity the victim. I feel
While constrained of stare decisis to follow principle cases, our in the hárd 40 I do not feel bound extend precedent those notes, to death As case. our holdings penalty majority in hard 40 cases not in death jurisprudence controlling penalty Therefore, cases. 286 at 113. I would restrict the application 21-4625(3) of K.S.A. to those instances where the defendant’s pur- *57 victim was to receive or pose killing specific money property Here, as a direct of the murder. the murders were consequence committed in the course of a and Scott did not receive burglary, or because the victims were mur- money solely property particular dered. He obtained because he broke into the house and property took it. I would find that the facts of this case would not support that Scott committed the murder for the re- finding purpose ceiving money property. in the concurrence. J., joins foregoing
Luckert,