*1 80,920 No. Gary Appellee, Appellant. Kansas, Kleypas,
State W. (40 139) P.3d *12 filed Opinion
December 2001. Kunen, defender, Zinn, R. chief and Steven R. appellate deputy appellate Jessica defender, cause, Woodman, Nelson, and Rebecca E. argued Reid T. and Kirk Redmond, defenders, Gottlieb, C. assistant and David of Kansas De- appellate Lawrence,
fender of were with on the Project, them briefs for appellant. Stovall, cause, Carla attorney and David B. Debenham general, argued J. Miller, Walczak, L. and Alexander M. Athena attorneys E. deputy general; Julene Bork, K. S.
Andaya,John assistant Maag, attorneys general; Stephen Jared McAllister, R. assistant were special with them on the briefs attorney for general,
appellee. III, P. Ithaca, H. Blume Sheri Stephen of Garvey, New Lynn Johnson, John
York, were on the brief amicus curiae Cornell Death Project. Penalty Arbor, Andrea D. of Ann was on the Lyon, brief for amicus curiae Michigan,
National Association of Criminal Defense Lawyers. Nichols, Lawrence, A. was on the brief for Paige amicus curiae Kansas As-
sociation of Criminal Defense Lawyers. Sacramento, California, Kent S. was on brief Scheidegger, for amicus
curiae Criminal Foundation. Legal Justice of the court was delivered opinion
Per Curiam-. W. was sentenced to death for the Gary
murder C.W. He errors occurred appeals, claiming jury’s
determination of his and that death should be He guilt imposed.
also raises what he claims are constitutional deficiencies with Kan-
sas statutes death We con- authorizing imposition penalty.
clude that no reversible error occurred during guilt phase
the trial and affirm all of convictions. We conclude that Kleypas’ of the death must vacated because of an
imposition
instructional error. We remand for another separate sentencing to determine whether should be sentenced to
proceeding
death.
The Kansas enacted a death 1994. See in Legislature penalty 21-3439;
K.S.A. 21-4624. K.S.A. This case first the court represents an the enactment. Kansas law automatic under requires
challenge to death court for who has been sentenced
review anyone by Kansas law:
under “(a) shall be a sentence death A of conviction in subject resulting judgment in the and to the court Kansas manner automatic review by supreme appeal and of the court the statutes rules supreme governing by applicable provided be in manner The review and shall every appeal expedited procedure. appellate the and the thereof consistent with presentation given priority pursuant proper the court and rules of statutes supreme governing appellate procedure. “(b) as shall of sentence court of Kansas consider question supreme be authorized asserted in the review and shall
well as errors any appeal of record ends of would served errors if the justice notice unassigned appearing
thereby. sentence, “(c) With court shall determine: regard (1) death the influence of the sentence of was under Whether imposed factor; other or arbitrary passion, prejudice (2) that an circum- whether evidence supports findings aggravating existed circumstances or circumstances and that stance any mitigating insufficient to circumstances. were outweigh aggravating
“(d) as effect The court shall be authorized enter such orders are necessary of the K.S.A. 21-4627. review and disposition appeal.” complete proper errors, as well
We will in this consider assigned opinion Kleypas’ 21-4627, K.S.A. in three Part our under parts. responsibilities deals issues innocence
one with guilt arising phase is, to the trial in This with few
trial. analogous exceptions, phase two, case. concerns Part
non-death phase, penalty the Kansas death
constitutional Finally, challenges against penalty. three, accused is convicted which is if an only operative
part the death murder in the concerns whether pen- guilt
capital phase, shall be imposed.
alty
FACTS stu- State On March University body Pittsburg C.W. discovered in the bedroom her
dent was apartment stabbed seven Kansas. She had been
W. Lindburg Pittsburg, heart, and her liver had been
times badly damaged, through bruised and her Her jaw heavily body stomping.
possibly that was also over her She had wound
was fractured. eyebrow bedroom, Socks to a chair in
caused tied object. sharp *14 socks tied to C.W.’s with indicated that C.W. had right
along leg,
been to the chair at one also tied There was evidence that point.
C.W. been some had sodomized and there were object, body
fluids on her shirt. to murder,
On occasions several C.W. and her room- prior
mate, had returned to find to the door Robyn, apartment open. and were camera stolen from money Robyn’s September stolen, At the time it was the camera had contained apartment. Island,
film had with taken on a to Padre Robyn photographs trip
Texas. camera also had sand in the viewfinder as the result of C.W. and that the lock to their Robyn requested trip. apart-
ment be as a of the result break-ins. changed
C.W. had also been and obscene calls Robyn receiving telephone
from an unidentified male caller. The caller indicated that he knew
their and names wished to in anal intercourse C.W. with engage
After to the calls C.W.’s mother Robyn reported police, bought
caller identification unit for the and calls subse- apartment ceased.
quently
On the before the C.W. and her night discovery body, friend,
best had a video in the Tiffany, spent evening watching C.W. off at her residence at
apartment. Tiffany dropped approxi- a.m. The two made to sales at 8 a.m.
mately plans go garage Mike, fiancee,
that next C.W.’s returned an earlier call morning.
from C.W. after 2 a.m. and her that time. shortly spoke
When arrived at the C.W., at 8 a.m. to meet Tiffany apartment
no one answered the in, door. C.W. had decided to Thinking sleep to a few went sales alone. She then went to her
Tiffany garage
house and call C.W. She left and continued attempted message because she knew C.W. was scheduled to work at telephone J.C. sometime in the afternoon. After Penney’s early calling Penney’s that C.W. towas to work at 1 and then learning report p.m. Mike, who told he C.W., her that had not heard from Tif-
calling decided to When no one after
fany go apartment. responded
she windows, knocked on the doors and she became alarmed and
went next door residence. The man- apartment manager’s son went her with entered C.W.’s
ager Tiffany, they apart-
ment. to call for C.W. noticed that C.W.’s Tiffany began Tiffany When closed, knew this was unusual. and she was door
bedroom afraid, offered she
she told manager open manager C.W., one out to but no She called continued. but
the door Tiffany floor. and saw the on the
answered, the door so she body opened *15 kitchen window of the outside the a found
Police apart- footprint had been broken and and its frame window Another
ment. in the trash behind was found The screen removed.
screen bedroom was also found in the of screen and a piece
apartment doorknob of the on the inside was blood There
clothes hamper. a on the wall. Blood on and a pillow bloody handprint
apartment a over with someone consistent was
in the bedroom holding pillow who was of a
the mouth bleeding. person a C.W. was focused neighbor Kleypas Kleypas,
Suspicion his and had at State a student
also University helped Pittsburg man, service for the
cousin, a maintenance neighboring provide tele- discovered that Kleypas’ buildings. police
apartment caller ID in C.W.’s on the had number apartment registered
phone of the officers of the murder. One
at 1:48 on the recog- morning was on lived and and knew that the name
nized nearby Kleypas a found roll of film on A for a murder. neighbor prior
parole of the murder. The car on the beside morning Kleypas’
ground and her friends contained roll Robyn photographs
developed inside of three Kleypas’ apartment. photographs where dis-
Officers went they building Kleypas’ apartment was obtained door. A search warrant the outer blood on
covered scene, at the offi- warrant arrived After the scene sealed.
and the which contained of the warrant that the discovered
cers portion con- officers was blank. The to be seized list of items present could be read the affidavit and determined
ferred together were The officers the warrant.
with entering Kleypas’ apartment the affidavit. that were listed in to be seized on the items
briefed evidence collected
Inside serological police apartment, Kleypas’ evidence, a shower seized a including physical large quantity resident, shoes, as the
curtain, a identifying Kleypas papers pair an machine photographs, answering tapes,
drug paraphernalia, a box with false Mist, and a wooden bottle of Canadian
empty
bottom More was found containing syringes. drug paraphernalia hidden outside the door unit. apartment space Kleypas’ murder, 7 and 9
Between on the went morning Kleypas stores,
to two both checks for cash. He also withdrew writing bank and left
$100 from his account town. Crawford be-
By evening, County Attorney Barry Disney
came aware that was Over next 2 Dis- suspect. days, discovered that had been filed
ney report against Kleypas and that decided he had not to file because
alleging rape charges
he did win reconsideration, not think he could the case. Upon decided file the 1994 An arrest warrant
Disney charges rape.
was issued name entered into national law en- Kleypas’
forcement database. 1, 1996,
On Tom Williams of the Kansas Bureau of April Agent (KBI) Missouri, was contacted
Investigation Springfield,
Police and advised that was in Department custody. officers had been called the Silver Saddle
Springfield police
Motel on an individual who was sui- April regarding attempting
cide. Officers entered the motel room to find blood everywhere and the brother above Kleypas, Gary Kleypas, standing John and him down. The officers ordered Gary Kleypas, holding John left, the room. from As he dashed into the
Kleypas Gary Kleypas
bathroom, he had so much blood on his that officers could body his wounds. identify was ordered from the bathroom. He reached into
Gary Kleypas
the waistband of his sweat and officers their sidearms. pants pulled continued to reach inside his as if for some-
Kleypas pants looking hands, to After he was ordered remove his he held his
thing. up
hands and one the officers could see that was he a razor holding
blade. said shoulder over his that the officers should Kleypas just ahead shoot and him. An officer to mace but
go attempted Kleypas bathtub, into the the shower curtain
Kleypas stepped pulled head,
around his and himself on the and ankles. began cutting legs then leaned the officer mace
Kleypas sprayed directly back/and
into his face. out crawled of the bathtub as ordered and Kleypas in the as he was out of the bathroom.
collapsed doorway crawling
Medical took him the personnel hospital. items, several the motel room uncovered
A search of including brain. with a on it that stated “Check Full note check bloody needles with the also found narcotics and
autopsy please.” They in, medication, a acne Wal-Mart a bag containing pushed
plungers officers, Several a camera sand in the viewfinder. and with
receipt, and Detective Stuart Hite of Tom Williams KBI
including Agent Sheriff s traveled
the Crawford Spring- County Department, at Hite and Detective visited
field. Williams Agent Kleypas for treatment of his wounds. where he had been admitted
hospital how he was told
When doing, Kleypas they inquired Kleypas worked and held
them that would have been better if “this” had it he to talk He told them did not wish his arms.
up bandaged at
them that time. was taken to the Green release from the Kleypas
Upon hospital, Missouri, and was read his s Office for Sheriff
County, booking told to Kansas. Wil- He waived extradition Kleypas Agent
rights. should wait him
liams and Detective Hite they question Hite, Detective
until the ride back Kansas. Kleypas, during Girard, Kansas, car. Williams returned
Agent car, he killed C.W. admitted that had Kleypas Kleypas door after
told the had entered front officers he ringing door, forced his door C.W. answered the bell. Kleypas way into her bedroom tied
in with filet knife. He forced C.W. hands, to tie her she to chair. When he
her attempted panicked. a head start told that if would leave she would him
She him he give been told he had identified on
before After police. being calling calls to ID, caller admitted making telephone had to the murder He said that he called night prior
apartment. did
but not recall saying anything. Office, s
Once Crawford Sheriff in Girard County *17 said he first further details. officers Kleypas
agreed give the front window. He to enter the through
attempted apartment and broke. He took screen taken the screen off the window
had front door. When and went to the
to a trash can in then alley time, first C.W. out and called the bell the
Kleypas rang peered Mike, knew it was Mike and said her She said she
out fiancee. went back inside and should around. She
he Kleypas stop horsing answered, the bell When she he forced himself inside.
rang again.
He said he have C.W. and ran into might slapped they
couch in the room. He forced her into the bedroom and living
made her undress. used socks to bind C.W. He Kleypas attempted
intercourse but was unable obtain an erection. said he He pen-
etrated her with his He also admitted that he had vaginally fingers.
been C.W. and her roommate and had been ob- watching making
scene calls to them. telephone
After he his into her allowed C.W. put fingers vagina, Kleypas
to dress. She asked him to leave him and said she would give
head start. At some C.W. said she him as the point, recognized
man who lived in the house down the street. un- After he green wall, from the there was a because
plugged telephone struggle
C.W. did want her hands bound. chair,
When C.W. became free of the tried to strangle Kleypas
her with his hands but that did not work. He took a of cloth- piece and stuffed successful, it into her mouth. When that was not
ing found the knife and stabbed her in the chest.
Kleypas repeatedly
He then took the from her and some of engagement ring finger
the contents from her and left the said purse apartment. Kleypas
he later of some of the he wore that disposed clothing night
other items them into a at a car by dropping dumpster Springfield
wash, but was he uncertain what and it was happened ring
never found. told the officers that after the murder he returned to
Kleypas shower,
his took and waited for stores to before apartment, open town. checks also admitted
writing leaving Kleypas taking
camera. He said that he wanted to the rest plead guilty spend
of his life in prison. was asked statement, to make a written but when he
learned that it would take time to he get stenographer, agreed short, statement if it was if he was not interro- videotaped kept and if he could review the before
gated tape, questions taping. statement, added that after he had
During videotaped C.W.,
tied he sat on the bed for a time about what to up thinking
do. *18 murder, with was first-degree rape, originally charged
Kleypas bur- criminal sodomy, aggravated robbery, aggravated
aggravated and theft. was notified in accord- of He dwelling,
glary, burglary 21-4624(a) that the State would the death K.S.A.
ance with pursue for murder. capital murder, found
The capital rape, jury Kleypas guilty attempted conclusion of one count burglary. sep- aggravated Upon vote, unanimous found
arate jury, by sentencing proceeding circum- doubt the three reasonable following aggravating
beyond (1) convicted of a in which
stances: felony Kleypas previously dismemberment, harm, or
he inflicted disfigurement, great bodily another, (2) committed the crime in order
death on Kleypas (3) arrest or or lawful
avoid Kleypas prevent prosecution, heinous, atrocious, cruel an
committed crime in especially doubt that The further found reasonable
manner. beyond out- were not existence such circumstances aggravating to ex- which were found circumstances
weighed by mitigating be should sentenced
ist. The determined Kleypas and a filed a motion recall the motion
death. jurors Additional facts will trial which were denied trial court.
new to address issues raised. necessary presented
PART I—GUILT PHASE convictions: issues his raises challenging following Confabulation to Present a Defense
Ability Complete Regarding Confession
Admissibility Kleypas’ of Search Warrant
Validity of Arrest Warrant
Validity DNA Evidence Trial Court’s Failure
The Suppress Instruction
The Felony-Murder Jury Instruction on Rape Attempted to Instruct on
Failure Simple Battery Intoxication
Instruction Voluntary State’s Failure to
Instruction Notify Kleypas Timely Regarding
of Change Testimony 21-3439(a)(4) Dur- Makes a
Whether K.S.A. Killing Occurring Death an Penalty Subject
ing Rape Attempted Misconduct in the Guilt
Prosecutorial Phase Misconduct
Jury Notice to Seek the Death and Failure to
Sufficiency Penalty
Provide a Pretrial on Whether Sufficient Evidence Ruling
Existed to Circumstances Aggravating Support to Stand Trial
Competency
Removal of Molden for Cause—United States Prospective Juror
Constitution.
Removal of Five for Cause—Kansas Constitution Jurors of a Denial Sentencing Jury Separate Misconduct Orientation
Alleged During Jury Judicial Batson Violation for Strike Wheeler Alleged Peremptory Juror Cumulative Error in the Guilt Phase Ability Regarding a
Issue 1. to Present Defense Con- Complete
fabulation trial, a
Before full was held on mo- evidentiary hearing Kleypas’
tion to his confession. The confession detailed suppress videotaped the actions on of March 29 and the
Kleypas’ evening early morning
hours of March 30 when C.W. was murdered. The trial court de-
termined that this confession was and videotaped freely voluntarily The confession was admitted at trial and shown to the
given. jury. trial,
At the and to be challenged reliability weight given
to his confession. His witnesses to establish that he expert sought a blackout the
experienced during evening morning
murder, that his of the events related his confession memory
was and that the events he related at were least in impaired, part the officers who him on the return
supplied interrogated trip
to Kansas. More claimed that his confession specifically, Kleypas
was, at least in the of confabulation. Confabulation part, product in witnesses as the explained depth by Kleypas’ expert process who
where one has little or no of events because memory occurring
aof blackout will information from outside sources to fill in gather in memory. gaps Wisner, Defense witness Dr. an associate expert professor John at Medicine, Kansas School of tes- psychiatry University
tified of confabulation: regarding concept when the brain tries to make for is what happens up missing “Confabulation information, of data. of a reflex that in It is tries to fill natural missing pieces part There is hole if cover one in vision.
we use for you up eye just, example, world, diere is a hole in visual field use one to look actually your only eye But There no sensors there for into the [are] where the nerve comes eye. light. look, are aware there there. is hole big if close you you your eye It slides from so that we information. stuff in fills in edges The brain missing what also when diere is a That memory are not aware of the gap. happens will [hole], is a in brain there memory, try bring lacuna when gap literally information, as to or bits and from elsewhere so litde in extraneous pieces ignore in this chuckhole memory.” fill big con- involved in
Dr. Wisner thoroughly explained process Wisner, to Dr. is a there
fabulation danger According jury. has blackout someone who experienced by using questioning because questions question
leading hypothetical questions He described of the answer.
will contain part and confabulation: between
difference lying *20 “Well, a knows information and are different. lying person they completely conscious, else is a act. or makes It either contradicts it up. knowing something is to to or a reflex. It whether want it Confabulation is literally going happen you it almost to are is sure
not and if die circumstances right, happen.” were and confabulation
Blackouts Kley- thoroughly explored Dr. Wisner. No limitation was of direct examination imposed
pas’ the court on his testimony.
by Wisner, called another clinical Dr. Kleypas professor
Following Medicine, the of Kansas School of from
of University psychiatry examination, direct Dr. Othmer
Dr. Ekkehard Othmer. During had suffered blackout if in medical
was asked his Kleypas opinion 29th 30th of time the of March the surrounding
during period was the State on the basis that the made
1996. An objection the of related to criminal
answer to this responsibility question on dates. More the acts he committed those specifi-
Kleypas the while had notified State Kleypas initially
cally, argued on of K.S.A. 22-3219 that he would
State under rely provisions or defect criminal of mental disease
evidence excluding respon- withdrew this notice. later
sibility, Kleypas of the was conducted outside the
An extended hearing presence Notwith- the answer of Dr. Othmer. of on admissibility that he was admission
standing argument Kleypas seeking
of Dr. Othmer’s answer to attack of his confession credibility confabulation,
on the that it was a basis trial court product
viewed admission of such evidence an attempt Kleypas his defense of lack mental state to establish rely for his
lack of criminal acts on the 29th and 30th of responsibility
March 1996. Had not withdrawn his notice to on the rely 22-3219,
mental disease defect of K.S.A. the State provisions
would have been entitled to have examined by psychia-
trist of its own to rebut such evidence. court viewed choosing as an indirect to circumvent
Kleypas’ attempt attempt provi- 22-3219,
sions of K.S.A. technical defense which by raising very
the trial court characterized as unfair” and as an “fundamentally
ambush. much After discussion the trial con- court argument,
cluded: would “The Court that and the Court will order as follows.The defendant deny
will be allowed information Dr. Othmer’s provide jury through testimony whether or not the defendant some sort from of black out regarding suffering of time that his he confession or his statement so as to during period gave induce him or so as to make him confabulate. The defendant seeks to prone further than that and the defendant’s state go through explore testimony mind at the time matter in that violates 22-3219. The defendant question had filed a notice of intent defense lack of mental previously rely upon state. The defendant later withdrew that and the court ordered that request pur- suant to that statute the State would have the defendant subject opportunity to its own examination. expert that, advised of the defendant withdrew its notice of the intent to “Upon being that statute. The seeks to defendant rely the back door upon essentially through into evidence that sort of This information. get unfair to the fundamentally State. The State has not had examine the defendant as to his opportunity *21 information, state of This is mind. The State ahas complex complex testimony. and, counsel], to the examine defendant Mr. Moots right frankly, the [defense it, Court continues to believe that no matter how are to you phrase you trying
introduce the defendant’s state of testimony mind in regarding day question and, fact, have in told me were to introduce the defendant’s state you you wanting of mind on the 29th and 30th. “If can limit it to the —to when the defendant his you April gavé alleged statement and whether or was not he from some sort of mental state suffering 2,1 that would make him on confabulate will allowthat but prone April anything that too far and the Court would not
beyond allow that.” you’ve gone specifically of court
Thus, from ruling prevented Kleypas March, of 29th 30th his state of mind about
inquiring into his state of mind was allowed to
but subsequent inquire is that he was crux claim offenses. The
time Kleypas’ defense be- his constitutional
denied complete right present of Dr. Othmer
cause the court meaningful questioning precluded to the was confabu- statement whether police
regarding Kleypas’
lated. Dr. Othmer direct examination of
After the trial court’s ruling, that his was able his
continued and theory fully develop Kleypas confabulation. Dr. Othmer was in the result of
confession part confabulation,
testified at indicating concerning length case, includ- used
that method Kleypas’ questions asking that answers and con- him that the two families needed
ing urging soul, the likelihood of confab- for the increased
fession was good was much more Othmer testified
ulation. Dr. than an de- to confabulation Finally, ordinary person.
susceptible Othmer: Dr.
fense counsel asked watched, the twelve minute Did recorded interview
“Q. videotape, you about what believed conclusions you
allow make medical you psychiatric statements?
occurred the unrecorded during what certain from went is It is out “A. It rehearsal. clearly things clearly picking In a live these connect in- went on before because on—what questions poorly.
terview, interview, clues the —from the from in a naturalistic you pick up with this like out here as I showed one this is question missing
respondent comment, is the wonder where con- blue seemed to these you questions nection, from, what tell it come does you where is coming suspect prompt
such question. that were asked of Mr. form of the
“Q. Without exact knowing questions car, Williams and Detective Hite can whether or not tell you Agent his him to confabulate statement him information that allowed parts provided
to them? Yes, that Williams Mr. these contain information Mr.
“A. several of questions that. Whether is Mr. true knew as a fact and introduced Kleypas’ Hite they unclear.
recollection or not is completely are when So the form of the “Q. you dealing Okay. very important question statements? at least their
with who may confabulating parts somebody *22 “A. You want to be as ended as and not Absolutely. open possible suggest any
facts. statements, “Q. And since there is no of the earlier can tell Okay. recording you
what information was for Mr. and what was his own autono- implanted Kleypas mous recollection? Well, “A. that is difficult to do. Each of the that he was asked have questions may recollection, recollection, been his not have been his so it is so confounded may
with interview that the results are to me.” technique, very questionable mind,
With these facts in we to our issue. turn analysis
Our standard of review involves the this claimed error concerning 22-3219, of K.S.A. as a as well determination
interpretation
whether, record, based on the evidence of was denied his
constitutional defense. right present complete
K.S.A. 22-3219 provides: “Evidence of mental disease or defect criminal is not excluding responsibility admissible a trial unless the defendant serves upon attorney upon prosecuting
and files with the court a written notice of such defendant’s intention to assert defendant, the defense that the aas result of mental disease or defect lacked the
mental state as an element of the offense required charged.” invoked the above but then withdrew initially provision
his notice to trial. The trial court concluded Dr. Othmer’s prior as to a blackout at the time of the offenses
testimony charged
amounted to evidence of mental disease or and was there- defect time,
fore inadmissible. At the same both Dr. Wisner and Dr. Oth-
mer were wide latitude in their con- given testimony concerning
fabulation. Dr. Othmer was allowed to his give opinion confession was in of confabulation.
Kleypas’ part product
Our cases draw a clear distinction between defense of prior intoxication. See In re Habeas Pe
insanity voluntary Corpus Mason, 111, 113, Mason,
tition
245 Kan.
non of all of his difficulties.’ We held “mental incapacity produced by voluntary ’ intoxication, at the time of the criminal offense” does existing only temporarily
not reach the level of 212 Kan. 197. insanity. *23 a condition caused evidence of mental voluntary temporary by “To hold dis- would be to abolish the the defense plead insanity
intoxication requires out statute and our cases. No two defenses laid between the clearly by tinctions to a is where the evidence an defense points only notice of required insanity caused con- state intent mental specific voluntary negating temporary a in 245 Kan. The trial court thus erred mistrial.” of alcohol. declaring sumption at 113-14. a because defense court in Mason had ordered mistrial trial
The told the that the evidence its statement
counsel had in opening becaüse intent that Mason was
would show forming incapable to the trial court’s Similar
of his alcohol ruling consumption. review, that evidence court in Mason found we now
case sup- blackout, of a Mason’s the defense including pre- theory
porting alcohol, amount- was evidence of mental illness with
vious history evidence rather than voluntary insanity simply
ing drew a distinction On court reversed and
intoxication. appeal, intoxication, hold- the defenses
between insanity voluntary a blackout as result that a defendant suffered that evidence
ing intent, not abuse, lack of when introduced to show alcohol at of K.S.A. 22-3219. 245 Kan. to the notice requirements
subject
114. and that in between the claim of is a difference
There alcohol but of a blackout involved not claim
Mason. only Kleypas’ These additional use and brain cocaine
chronic organic damage. Nevertheless, the trial court’s decision. influenced
claims obviously therein, with our and the cases cited on Mason
based together 22-3219, that the trial court we conclude of K.S.A.
consideration as to Othmer to his Dr.
erred opinion allowing express a blackout at the time of the offenses.
whether Kleypas experienced we answer is whether this error must prevented question denied him a fair defense and from presenting complete 683, 690-91, 90 L. Ed. 2d 476 U.S. See Crane
trial. Kentucky, of evidence
636, 106 (1986) S. that the exclusion Ct. 2142 (holding a defense an denied the defendant
which present opportunity error to harmless analysis). subject statement Crane, stressed in his
In opening prosecutor defend- almost on the case rested
the Commonwealth’s entirely
ant’s confession. In defense counsel outlined what would response, to be the avenue of defense —that for a number of
prove principal
reasons, defendant’s confession should not be believed because
it was rife with inconsistencies. response prosecutor’s to exclude such
motion in limine ""the court testimony, expressly that the could
held defense into the inconsistencies con- inquire confession,
tained in the but would not be permitted "develop front of evidence about the duration of the inter- jury’ any or the individuals who were in attendance.” U.S.
rogation
686. States The United Court reversed on the basis that Supreme was denied due defendant of law. The Court noted process Constitution criminal defendants guarantees meaningful defense and stated: present
opportunity complete *24 “That would be one an if the State were to opportunity empty exclude permitted reliable evidence on the aof confession competent, bearing when such credibility evidence is central to the defendant’s claim of innocence. In the absence of any
valid state
exclusion of this kind of
justification,
evidence
a
exculpatory
deprives
defendant of
basic
to have the
case
right
encounter and ‘survive
prosecutor’s
of
crucible
adversarial
476 U.S. at
meaningful
testing.’ [Citations omitted].”
690-91.
Hall,
in U. S. v.
(7th
Similarly,
Circuit of Court reversed the defendant’s conviction Appeals
where the trial court did not allow that the de- expert testimony
fendant’s disorder could cause the defendant to a personality give
false confession. The trial court excluded entirely expert testimony a
from on confessions, false the indicia have psychologist experts
identified demonstrate when false occur, confession is likely
and the factors toon between rehable and rely experts distinguish
unreliable confessions. The court further limited the testimony him to about the defendant’s mental psychiatrist, allowing testify
condition but not about the defendant’s to various susceptibility and his to a crime
interrogation techniques capability confessing
he did not commit. Hall,
Unlike Crane and in this case Dr. Wisner testified exten- on medical of blackouts and the
sively psychiatric aspects pos- of later confabulation. Dr. Othmer testified that it was his
sibility confession was at least in confabulated
opinion Kleypas’ part While claims that the of his the basis Kleypas opinion. gave his blackout on
exclusion concerning night testimony defense, his he was able him die
murder denied right present crimes, before the that there had been that he show drinking cocaine use of extensive
was evidence prior night brain all of
murder, suffered from and that he damage, organic a blackout and the likelihood tiiat his chances of increased
which evi- of confabulation. When this was the
the confession product of Dr. and Dr. with the Wisner considered
dence is testimony
Othmer, clear that it becomes Kleypas given opportunity confession was in confabulated. that his
to convince the part not, court did our
The limitations pre- imposed opinion, his of defense to die
vent from theory jury, Kleypas presenting reasonable doubt that error are able to conclude
we beyond on the outcome.
had if effect little Admissibility of Confession 2.
Issue Kleypas’ made to a motion statements officers filed suppress Kansas, vid- from Missouri and the the automobile
during trip He to officers after he arrived in Girard. statement made
eotaped held statements were were
claims that these involuntary. Hearings 1996 on motion. The trial days Kleypas’
during September a written forth its motion in
court denied setting Kleypas’ opinion Thereafter, of law. raised and conclusions of fact
findings which were de- his statements
additional contentions concerning 1997. court after further
nied the trial hearing May (1) in this His statements raises three *25 appeal: points
Kleypas from the were after his release
made involuntary shortly hospital an condition and threat the in- of his mental
because by alleged officer, (2) officers his end the ignored attempt
terrogating be stricken because of (3) his statements should and
interrogation, of State. on the misconduct part
alleged claims to be
The standard review assessing applied Kleypas’
is well established: whether a is confession “Factors to be considered determining voluntary condition; (2) (1) the manner and duration mental
include: accused’s (3) to communicate with the the accused on request ability interrogation; world; intellect, (4) (5)
outside the accused’s and the fairness age, background; officers in See State v. conducting investigation. Esquivel-Hernandez, 821, (1999); 26, 34-35,
266 Kan.
v.
267 Kan.
The trial court’s determination that statements were Kleypas’
made is substantial freely voluntarily supported competent decision,
evidence. In its the trial court considered all fac- making
tors to voluntariness as set forth this court in relating Esquivel-
Hemandez and Speed.
The trial court’s decision did not address sec- expressly Kleypas’
ond that the officers his to end the in- allegation ignored attempt However, we find no merit in this contention.
terrogation. Kleypas
makes reference to his statement made the ride from Mis- during Kansas,
souri to statement, which was recorded. In his
said: “I think that be all He claims that this state- might you.”
ment constituted an assertion of his desire end unambiguous
the interview. We statement, and conclude that the above disagree context,
either alone or in was not an as- standing unambiguous
sertion aof desire to end the interview.
‘When makes statement which suspect may ambiguous
toas silent, whether the to remain suspect asserting right to, but is not ask may,
interrogator required questions clarify
and instead continue may [Citations questioning. omitted.]”
McCorkendale, 267 Kan. 273. did not unambiguously silent,
assert his remain 423 U.S. right Michigan Mosley,
46 L. (1975), Ed. 2d 96 S. Matson, Ct. 321 and State v. 366, 375,
Kan.
(1996),
the officers to honor’ that and cease the inter- ‘scrupulously right Instead, were not his statement was at best
rogation, implicated. thus, the officers to continue their
ambiguous, permitting ques- or make an
tioning attempt clarify Kleypas’ meaning. *26 the ride statements made that his claims during Kleypas
Finally, of miscon- be struck because Missouri should to Kansas from
back the court’s of the State. After
duct on the ruling original part back was en- of the to
the motion audiotape trip suppress, (FBI). The en- the Federal Bureau
hanced Investigation by “Are officers in the car one of the
hanced version included saying: walk?” filed
we to out and have supplemental going get a threat constituted that this
motion to arguing phrase suppress, confess. and walk if he did not out
that he would forced get such could not recall Williams
At the KBI making hearing, Agent made recalled that he had Detective Hite
a statement. Ultimately, left in the small amount
the statement in reference gas was not threat.
car. statement The court held listened to the
However, Williams after the tape Agent hearing, had the state- the one who made
and at that he was trial testified this to defense to communicate The State made no
ment. attempt of the on the that this misconduct
counsel. asserts part the confession.
State have been sanctioned should by suppressing in the with
The trial court concluded evidentiary ample support defendant was coercive
record that there no interrogation inval- the State that would false
and no testimony by purposefully of evidence The record is devoid defendant’s statement.
idate the was bad faith or deliberate that there withholding suggest Williams’ in prosecution. testimony change Agent the State’s that it could consider
court instructed the ultimately when of the counsel
failure to defense testimony change notify of the of the witnesses. The findings credibility
determining and there no evidence in the record
trial court are supported that the We conclude confession. exclusion of Kleypas’
support confession. did not err in
court admitting Kleypas’ Validity of
Issue 3. Search Warrant and not warrant invalid found that the search
The trial court warrant, that the but
cured the affidavit in good support uncov- evidence of all the
faith exception applied suppression court erred the trial contends that
ered was not warranted. Kleypas search his taken in the of the items all failing suppress
residence. He that the search warrant was invalid because argues seized,
it failed to list the items to be that this failure was not cured affidavit, the and that the officers far exceeded the of the scope
search, thus, faith unavailable. good rendering exception
The factual of the trial court are not in “When findings dispute.
the facts to a material decision of the court on motion suppress
evidence are of whether dispute, question suppress
becomes a of law. An court’s [Citation omitted.] question appellate of review on of law is unlimited.” State v. Ander-
scope questions
son,
16, 18,
Kan.
A search warrant issued for at residence W. Kleypas’ The affidavit in of the war- search
Lindburg Pittsburg. support
rant fisted the items to be seized with specifically particularity: evidence from the murder .
“[T]race victim . . but not including
limited to [victim], hair fiber fabric fiber from the clothing [victim],
of the .. . trace evidence from blood from any body, victim, However, used in the murder.” [and] weapons por-
tion of the actual warrant which references the items to be seized
was left blank. When at officers the scene noticed the blank portion warrant, officer, Officer Rosebrough, attesting brought affidavit 117 W. After the dis- officers supporting Lindburg.
cussed the omission affidavit, and reviewed the decided the they
warrant was valid because the affidavit fisted the items supporting
to be seized with items were discussed particularity. specific
so the officers would know what to seize. Officer Rose- exactly did not enter 117 W. because of the
brough Lindburg adopted the crime scene 113 W. anyone
policy entering Lindburg
would not enter the one at 117 W. cross- Lindburg prevent
contamination.
The officers found a crack in a duct located in a pipe ceiling outside the door to
public hallway Kleypas’ apartment. officers the inte-
Upon entering apartment, photographed
rior, then exited and sealed the KBI lab ana- apartment awaiting KBI lab technicians entered the later the
lysts. same apartment 31, 1996, March and recovered various items of ev-
day, potential
idence residue. including alleged.blood 3 to then reentered
Officers complete apartment April to seize the items listed on the affidavit.
the search specifically time, were aware that had the officers given
By discarded the that he
statement weapon. claiming search, listed and officers seized items specifically
During such as Some blood residue on them. with
items item? apparent residue seized to determine if blood were
shoes any clothing such as the be found. Other items evidence other trace might were with cassette and machine videotapes answering
telephone between revealed connection to determine if
seized Kley- they were aware at this time that C.W.’scaller C.W. The officers
pas *28 of the a call from the showed
ID night Kleypas’ apartment
homicide. several boxes also seized
Officers personal containing Kleypas’ others, memorabilia,
effects such as private pictures Kleypas the and other mementos revealed in inventory. jewelry,
papers, con- items were seized because court found these
The trial they as the
tained documentation occupant verifying Kleypas all this identity, Though paraphernalia proved
apartment. seizure; examine item did not
officers individually eveiy prior
rather, contained items a box or if identity showing packet the entire box of the the officers seized
the occupant apartment, Adams, team, of the search KBI The
or Agent supervisor packet. value. items seized had all
believed evidentiary potential found
Officers also drug during drugs paraphernalia
search. could be used that while an affidavit court concluded
The trial to be seized in the of the items an insufficient
to cure description warrant, in the warrant affidavit must be referenced
search exceeded the that while the officers The court also found
do so. affidavit, did not this conduct described in of the items
scope Rather, trial of all seized. the evidence the suppression
require be in the affidavit items not contained
court ordered that suppressed. States Constitution the United the Fourth Amendment
Both Constitution Bill of of the Kansas
and 15 rights Rights protect § searches, and both unreasonable provide against people
928 issue, cause, but
“no shall [w]arrant[s] upon probable supported affirmation, or [o]ath [and] particularly describing place
be searched and or to be seized.” U.S. persons [property] Const, IV; amend. Kan. Const. Bill of 15. K.S.A. 22- Rights, §
2502(a) also search warrant describe requires particularly or means to be searched and conveyance
person, place, things
to be seized.
“The of the constitutional that search war- purpose requirement describe the
rants to be searched and the particularly place person is to be seized searches and the properly prevent general
seizure of items at the discretion of the officer the war- executing LeFort, State v. 332, 1,
rant.” 248 Kan. (1991). P.2d 986 Syl. ¶ “ is that a search warrant shall ‘[I]t constitutionally required “par- describe the to be searched. Thus or blan-
ticularly” place general
ket warrants which commission officers give roving executing
to search choose where are added.)” forbidden.’ they (Emphasis Gordon, State v. at 335 Kan. 221 Kan. (quoting [1977]).
P.2d 312 This particularity requirement equally appli-
cable to the in the items to be seized. See State specificity Dye, 287, 293,
250 Kan. 826 P.2d of whether an affidavit which does list the question place
to be searched or the items to be seized with particularity may
sufficient to cure an in a search warrant has inadequate description
been answered in different different and there ways by jurisdictions
is no real universal Morris, See U. S. v. 677, 977 F.2d agreement. S. v. (1st U. 1992);
681 n.3 Cir. 72, 975 (2d F.2d 76 Cir. George,
1992); United States v. 60, (3d 690 F.2d 1982); 64 Cir. Johnson,
U v.S. 1490, 1496-98 865 F.2d (6th U. S. v. 1989); Cir. Gahagan, 946, (8th 985 F.2d Towne, U. v.S. 1993); 950 Cir. 997
Tagbering, 537, 548 (9th 1993); United States v.
F.2d Cir. 683 F.2d Wuagneux,
1343, (11th Maxwell, U. S. v. 1982); 1351 n.6 Cir. 1025, 920 F.2d (D.C. 1990); Staton, v.
1031-32 Cir 127, 132 924 (Colo. P.2d People Balduc, State 1996); 607, 514 (Minn. N.W.2d 1994); 610 App. Stenson,
State v. 132 Wash. 2d 940 P.2d 1239 cases,
In some in order for an affidavit to cure warrant which defective for lack the affidavit must be specificity, incorporated reference in the warrant Towne, at the search. See
by present
929
n.3; Maxwell,
Morris,
at
920 F.2d
548;
977 F.2d
681
997 F.2d at
Staton,
132;
64;
at
at Johnson, Towne noted that this at 610. The court in
Balduc, N.W.2d 514 ac- It assures that the affidavit two rule serves purposes.
two-step warrant and of the officers the discretion limits the executing
tually of notice of the items searched the specific being person
provides others, 997 at 548. to seize. F.2d In is entitled
the officer express at the if the affidavit is available is not necessary
incorporation 1496-98; at at 985 F.2d F.2d
scene. See Tagbering, Gahagan, (affidavit F.2d at n.6 sufficient
950. See also Wuagneux, reference, attached, or at the
if either present incorporated others, be attached
scene). the affidavit must In still actually 76; at Sten- in it. See 975 F.2d
warrant and George, incorporated at 696.
son, 132 Wash. 2d Kansas, cure an omission we have held that an affidavit
In may even the affidavit is not attached to warrant
in the search though scene, was one of at the when affiant warrant or present LeFort, 294-95; See 250 Kan. officers. Dye, executing warrant that did not (both cases search at 341
Kan. involving LeFort, searched.) we describe
sufficiently property
stated: officer in whether executing “In description given determining sufficient, stated directed to the the initial examination is
warrant was
description
However,
due to a
in the warrant is
if the
inadequate
in the warrant.
description
then shifts to the
contained in
the focus
technical
description
irregularity,
de-
if the
were able to use that
the warrant
officers
or affidavit for
application
the search
warrant. When the officer
to execute the search
executing
scription
searched,
to be
and the
who described the
judge
warrant is the affiant
property
the affiant
search the
described
cause to
finds there was
property
probable
affidavit,
in the
area which the affiant described
and the search is confined
and is in
substantial
of the accused
does not affect the
compliance
the search
rights
of the United States
Section
of the Constitution
with the Fourth Amendment
Fifteen of the Kansas Rights.” affiant, hand, Officer case at
In the Rosebrough, although warrant, he was at the the search execute
did not present actually the search officers who executed affidavit and the
scene with the what to so would know on the affidavit were briefed
warrant they *30 between the situation difference There is no
seize. appreciable
930
this case and those in LeFort Indeed, the officers had Dye.
more information in the case at hand because even though search,
affiant was not in the he was at the actually taking part affidavit,
scene with the which was not along actually present
either LeFort We, therefore,
See
hold that where the affidavit contains particularized description seized;
of the items to be the affiant and the affidavit are both warrant, the scene of the of the execution search even
present
if the warrant; affiant is not the the search executing person
the officers are search warrant briefed as to the items executing affidavit,
listed in the in the affidavit cures a defi- description in the was, the search warrant. The warrant
ciency description valid,
therefore, and the trial court erred in otherwise. finding is whether the seizure of items outside question remaining of the warrant of all the evidence scope requires suppression
seized. “When law enforcement officers exceed the grossly scope
of a search warrant in seizing property, particularity require
ment is undermined and a valid warrant is transformed into a gen
eral warrant of all evidence seized thereby requiring suppression (Medlin II),
under that warrant.” U.S. v. Medlin 1194, 842 F.2d (10th Foster, See U.S. v. 1988).
1199 Cir. 846, 100 F.3d 849-50
(10th 1996). However, Cir. ‘[ujnlawful seizure of items out “[a]n
side warrant does not alone render the whole search invalid and seized, of all evidence
require suppression including lawfully
taken the warrant.’ [Citations omitted.]” pursuant Gahagan,
F.2d at 1496. Unless there is for the terms of flagrant disregard warrant, evidence, seized rather than all only improperly evidence, See Waller v. need be 467 U.S. Georgia, suppressed.
39,
n.3,
81 L. Ed.
(1984);
2d
v. Medlin (10th 1986); F.2d Cir. Wuag
neux,
After case, consideration of the evidence in this we with agree
the trial court’s those items not mentioned in suppression only
the affidavit. there were items seized outside Although scope warrant, the officers’ conduct did not evidence a “flagrant for its terms. of the items taken were taken be-
disregard” Many
cause identified as the owner of or be- they property *31 However, there is no with other items. were in boxes
cause they courts in to the level which the rose that the search
indication See Med- to blanket
Medlin II and Foster found justify suppression. II, (667 not identified in
lin
items
the warrant
approximately
Foster,
(officers
admitted
warrant);
with the taking warrant). Un- contained in the of value” whether
“anything warranted, case, was not blanket facts of this
der the suppression those items seized the trial court
and only correctly suppressed the search warrant. identified in
which were not Validity Warrant of Arrest
Issue 4. based the warrant for
Crawford Barry Disney County Attorney occurred in of a that arrest on the January allegation rape
Kleypas’ court and of C.W. Before the trial on the murder rather than that the in of his claims affidavit
now on support appeal, Kleypas that the trial court material matters and
arrest warrant omitted at the evidence relied on hearing. hearsay suppression
erroneously the trial was and that
Thus, that the arrest claims illegal Kleypas statement and to his his motion
court erred by denying suppress the arrest. evidence derived from
all other issue, forth facts to set to it
In order necessary analyze victim, The D.J., Kleypas’ alleged rape.
regarding were
live-in apartment dispatched girlfriend. police her hos- claimed held where she shared with Kleypas Kleypas D.J. knife, and half, with and a threatened her for an hour raped
tage noted The officers
her taking report by digital penetration. have been intoxi- have been may drinking appeared D.J. cated. The con- somewhat officers noted also appeared D.J. the true not be what had
fused about telling might happened some There was also inconsistency story regarding story. D.J.’s time, declined had knife. At
whether Disney pros- Kleypas
ecute the rape. arrest warrant an filed
The affidavit by Disney support the 1994 incident
based provided: upon Officer a call from Police received Joseph “That on 1-23-94 Pittsburg [D.J.]. of 1706 S. north which was residence just location
Head responded [D.J.’s] Pine. advised her Head that and her W. had been Gary boyfriend, Kleypas, [D.J.] &Bar Grill in Kansas. After went to the Pittsburg, they leaving J.B.’s J.B.’s Pine, home shared located 1706 S. Kansas. they mutually Pittsburg, [D.J.] advised that at the she once home advised began argue. [D.J.] Head that had lost control’ and held her in the house for 1.5 hostage hours. That this 1.5 he had hours threatened and had her his hands during put around her throat. further advised that her rectum and Kleypas penetrated [D.J.] with his advised Head that she did not
vagina fingers. give Kleypas per- [D.J.] *32 to mission his in her rectum put finger vagina.”
After a and full the trial court issued its mem- complete hearing,
orandum decision declined to the finding Disney prosecute in 1994 because he believed the case would difficult to win
rape
and not because there was insufficient cause to probable support The trial court further found that the factors
charges. following a reevaluation of the case with additional information
involving the (1) reversal of was advised
prompted Disney’s position: Disney Chief Police that he should have filed the Pittsburg rape 1994, (2) KBI interviewed charge Special Agent Delaney D.J.
after became a in C.W.’s death and indicated that Kleypas suspect still maintained 1994, had her in and De- Kleypas raped D.J. stated witness,” that she (3) would not be a “bad
laney Delaney able clear confusion over whether had up Kleypas incident,
knife (4) awas in both during Kleypas suspect murder, and C.W.’s which had sexual over- rape apparent
tones, (5) and had been convicted and incarcerated in Mis- Kleypas
souri for a murder with sexual overtones.
aWhere defendant attacks the affidavit an arrest war supporting
rant based on the information, omission of material he or she must (1)
show: The deliberate, omission was (2) the omission was
material. An omission is material if the affidavit original together
with the omitted information would not a find previously support Breazeale, 714, cause. State v. 238 Kan.
ing probable
P.2d
cert. denied
if, under the affidavit, of circumstances as set forth in the totality
a fair exists that crime has been committed and that probability
the defendant has committed it.
At submitted 15 omissions. On he alleged appeal,
now relies three omissions from the affidavit upon following alle- doubt on of the victim’s cast he contends
which veracity statements (1) had inconsistent The victim provided rape:
gation used, (2) the victim been drink- had been had a knife
as whether intoxicated, of- (3) been could have investigating
ing confused and that the victim concluded
ficer had might appeared the truth.
not be telling error is limited
Our review regard alleged scope substantial evidence whether competent supports
determining court, Breazeale, at The trial 238 Kan. 724. court’s
trial findings. each examined
ain well-reasoned alleged opinion, specifically affidavit, outlined all evidence in the
omission relating prob- evi- cause, that there was substantial and found
able competent even the issuance of the warrant
dence considering support and conclusions of the trial court are
omissions. amply findings the record.
supported that the trial relied on also contends court incorrectly on the motion
inadmissible hearsay hearing suppress, conversation testimony Disney’s Delaney’s regarding
specifically, However, it is clear that the trial court relied on
with D.J. *33 but of therein to the truth the matter asserted
evidence not prove to in 1996 effect on decision file the
to show its Disney’s charges such, was not hear- in 1994. As
that he had not filed testimony 60-460. See K.S.A.
say. review, circumstances, we our standard of these
Under applying to for court’s denial of motion
affirm the trial suppress Kleypas’ cause for the arrest warrant.
lack of probable Evidence Court’s Failure to DNA 5. Trial
Issue The Suppress court to that the trial erred in failing suppress
Kleypas argues the FBI where the State’s evidence DNA regarding testing of exercise failed inform the FBI the court’s order
prosecutor that of item for faith in necessary using only
good portion consumed all the contends that because the FBI
testing. Kleypas its is warranted.
material in testing, suppression DNA items to the FBI for State sent numerous
The laboratory to also that allow him the trial court
testing. Kleypas requested court, the evidence. The trial
examine made the fol- response, order:
lowing of State can conduct ob- testing consumes those objects “[T]he evidentiary however, there is no need of . items evidence. . . You
jects, simply destroy Now, ask, are free to conduct whatever deem I in- you will testing appropriate. deed; State I will order the to exercise faith. Don’t good consume an unduly item. Use that is item for but evidentiary portion necessary testing don’t consume unless such arbitrarily is for just something completely necessary So don’t overboard I is what I’m testing. go guess saying.” sent,
Of the items one was a sock that had been tied around was a
victim’s and another blue blanket recovered from beneath leg
her The FBI consumed bloodstains from both items. body. totally trial,
At the FBI testified that there was a statistical serologist high was of donor the bloodstains found on
probability sock and blanket. trial,
Prior to filed motion bar the DNA evidence. motion, on tins ev-
During hearings experts presented conflicting
idence all the available ma- regarding necessity consuming
terial for DNA estimated the from the testing. experts sample
sock and blanket 200 and 400 of material for yielded nanograms witnesses, Stetler, Dr. Dean
testing respectively. Kleypas’ pro- Genetics,
fessor Chair of and Director of Under- microbiology, Sciences, Kansas, at the and Dr. Biological
graduate University
Susan assistant in the of Kansas De- Egan, professor University Genetics, testified that Microbiology
partment Program of 50 minimum a Restriction nanograms required perform (RFLP) test and Length
Fragment Polymorphism only pico- for the less (PGR) Chain Reaction test.
grams specific Polymerase
In Dr. Stetler’s the FBI did not exercise faith in opinion, good at least the minimum amount of material
attempting preserve However, the defense. Dr. Stetler testing by independent
stated that 200 often amount to assure more nanograms target
reliable results. rebuttal, Callahan, Dr. Thomas the forensic examiner for the
FBI, that as a testified matter of unwritten in DNA test- protocol his uses 200 of matter. If the items come laboratoiy nanograms
ing, scene, however,
from a crime the lab to use 400 prefers nanograms. inform the FBI of the that State did not testified Callahan
Dr. to use faith in how-
trial court’s order any correspondence; good from the items as a matter all the material
ever, consumed the FBI
of routine procedure. Callahan recalled conversa- Dr.
When telephone questioned, Bork, that the FBI some
tion with asking preserve prosecutor John However, the FBI to use Bork authorized all
material if possible. for its DNA After material if
of the bloodstained necessary testing. court strike the conversa- the trial telephone agreed
objection, court’s it in the decision. and not consider
tion decision, that the trial court commented
In its memorandum court’s order to communicated the trial
State have should clearly stated, however, that the real issue before court
the FBI lab. The FBI exercised faith in court was whether the itself good testing all the trial court noted that were in
the material. The experts of 50 for DNA that minimum nanograms required
agreement as of the results increase but that the greater accuracy quan-
testing used.
tities are that the from the sock trial court found
The sample comprised and the from the blanket sample nanograms
approximately trial court further
amounted The nanograms. approximately both items that the FBI consumed
found although testing within its standard conducted its the FBI testing operating
process, to load a was the FBI mini- It laboratory’s procedure
procedures. fact of 200
mum nanograms. nanograms, optimally, did written manual not concern this is not procedure practice as the court
the trial testimony finding long supported case case than other
FBI did not any differently process the lab.
handled by
Therefore, that in of the United the trial court concluded light 488 U.S. in Arizona
States
Court decision
Youngblood,
Supreme
(1988), and the trial court’s
2d
own procedure finding items, be de- motion should test suppress
dling Kleypas’ Nevertheless, mindful of the State’s failure the trial court was
nied. order to the court’s
to inform the FBI of preserve portion As this failure did
material if testing. possible independent *35 itself, of the the trial court found
impact propriety testing sup- Instead, was not the trial court believed the
pression appropriate. should be it could instructed that consider the State’s failure
to a the FBI to make faith to affirmatively request good attempt a of the in to be
preserve portion determining sample weight the DNA results.
given
The trial court correctly applied Youngblood resolving
issue. In the Arizona Court of reversed the Youngblood, Appeals molestation, assault,
defendant’s conviction on child sexual and kid- based on the State’s failure to semen
napping preserve samples
from the victim’s The United States body clothing. Supreme reversed,
Court the State’s failure to finding preserve evidentiary
material, faith, absent a of bad was not a violation of the showing
Due Process Clause of the Fourteenth Amendment. The Court
stated: Amendment, “The Due Process Clause of the Fourteenth interpreted (1963)], [v. 373 U.S.
Brady Maryland, makes the or bad faith the State good
irrelevant when the State to fails disclose to the defendant material exculpatory
evidence. But we think the Due Process Clause a different result when requires
we deal with the failure of the State to material of which no preserve evidentiary tests, more can be said than that it could have been to the results of subjected
which have exonerated the defendant. . . . might We think that requiting defendant show bad faith both limits the extent of die part police evidence reasonable bounds
police’s and confines it to obligation preserve it, i.e., that class of cases where the interests of most justice those clearly require cases in which the themselves conduct their indicate that police the evidence could form basis for die We defendant. therefore hold unless exonerating a criminal defendant can show bad faith on the failure part police, useful evidence does not constitute
preserve potentially
denial
due process
law.”
frigerate clothing perform was, worst, The Court noted that none of this
ples negligence.
information was evidence, concealed from the defense and that the was,
such as it result, was made available to the defense. As a
Court concluded there was no of bad faith. 488 U.S. at showing
58. decision as trial court’s
When suppression reviewing deference
evidence, court an normally gives great appellate determination of of the trial court. The ultimate
factual findings is a in- of the evidence legal question requiring suppression *36 Vandiver, State 257 Kan. determination. appellate dependent State (1995). of whether the P.2d 350 question Lamae, State v. 268 Kan. a of fact.
acted in bad faith is question
544, 551,
(2000)."
acted in he directs fault faith. good DNA to material for
FBI’s failure analysis. preserve independent conduct, to on State’s focus solely
Despite Kleypas’ attempt to the trial court’s decision. The
the FBI’s faith was relevant good to the FBI the State’s failure inform
trial court considered clearly the DNA but of the circumstances testing surrounding part it This decision
found insufficient to sup- require suppression. evidence. substantial
ported by competent Court’s decision in on the United States
Based Young- Supreme case, did
blood and the facts we hold that the trial court to the DNA evidence.
err failing suppress Felony-Murder Jury
Issue 6. The Instruction as a on murder lesser
The trial court an instruction felony gave that the trial offense of contends
included murder. Kleypas capital erred, however, that a
court instruct jury refusing felony an
murder could occur in the from” inherently dangerous “flight
felony. as the of hu- 21-3401(b) defines murder
K.S.A. felony killing of, commit, committed commission
man “in the attempt being as defined in K.S.A. from an flight inherently dangerous felony The instruction
21-3436 and amendments thereto.” given by because the trial court omitted the term from”
trial court “flight it. contends
found that was no evidence to there support killed C.W. his could have that he determined during jury that the trial from” an felony inherently dangerous
“flight his Sixth the term from” violated
court’s refusal to include “flight
Amendment a fair trial. right
A criminal defendant has to an instruction on all lesser right (1)
included offenses the evidence as as: supported long
evidence, when viewed in the most favorable to the defend- light
ant’s would verdict in accord with that justify theory, theory (2) the evidence at trial does not exclude a theory guilt Williams,
the lesser 1, 15, offense. State v. 268 Kan. P.2d
(1999). An instruction on a lesser included offense is not if proper
from the evidence the could"not convict of the reasonably Robinson,
lesser
865, 883,
offense. State v.
261 Kan.
Kleypas argues “flight part
the instruction because there was evidence that he committed the
murder facilitate and that the State the death flight sought pen- based on an factor which involved He con-
alty aggravating flight.
tends that the State’s reliance on the factor that “[t]he aggravating
defendant committed the crime in order avoid or prevent
lawful arrest or mandates the from” instruc- prosecution” “flight
tion. See
21-4625(5).
K.S.A.
Purnell,
518,
State v.
533-
N.J.
34,
(1992),
where offense the factor separate encompassed by aggravating
is, itself, in a basis an for alternative form of that is murder non- a defendant is to entitled have that alter-
capital, constitutionally
native offered for deliberation the jury guilt phase.
However, neither of these the in- arguments requires requested
struction. commit,” The terms “in the of,” commission “attempt from,” as used statute, in the are tem- “flight felony-murder a when occur and still
poral requirements delineating may killing
be of the Hearron, See State v. 228 Kan. part underlying felony.
693, 694-96,
(1980).
to facilitate or to avoid or arrest or are escape prevent prosecution and, such,
matters of intent as are different from fundamentally from” for murder. A murder “flight requirement felony may
be committed in order to facilitate or to avoid or escape prevent arrest
an or and still not occur from prosecution during flight
the crime. a murder occur from Similarly, may during flight
the crime but not have its the facilitation of or purpose escape
the avoidance or of arrest or need prevention prosecution. on in each instead based the evidence
an instruction particular
case. hand, was no evidence from which there
In the case jury based murder have convicted
could felony reasonably Kleypas an occurred from” that the
on the “flight theory killing during such an instruc- In order felony. require
inherently dangerous
tion, be that the occurred must evidence there flight killing during There was no such evidence in scene of the
from the felony.
case, was the trial court’s instruction correct. contends that trial court erred also defining instruction. commission of’ in the “in the felony-murder
phrase should have defined the term “commis-
He court argues occurred it clear to the which
sion” to make jury killing fel- could still considered felony underlying
subsequent He that such an instruction murder. necessary
ony argues ter- murder that used the instruction capital
light jury commission to” of or “in the underlying subsequent
minology
offense. We an admits that he failed such instruction. request
have held: an unless as error the or failure to instruction “No giving give may assign party verdict, its thereto before the retires consider stating
he she objects of his or her to which he or she and the the matter grounds objects distinctly the instruction is the instruction or the failure clearly unless give
objection, if court is are erroneous firmly erroneous. Instructions clearly only reviewing different that there is real would have rendered convinced possibility Cravatt, not occurred.” State error 267 Kan. ¶
verdict if trial had Syl. 979 P.2d contention, we instruction conclude that the Kleypas’
Despite *38 not have stated the and that the could
as law jury given properly to define the term “commission.” misled the failure
been by instructions, are to be con- the instructions
“When jury reviewing challenges If the one instruction. and read as whole without sidered isolating any together case, to the in the state the law as facts instructions applied fairly properly them, then instruc- not have been misled and if the could jury reasonably small in some way tions do not constitute reversible error they although may (1997). Aikins, 346, 25, P.2d erroneous.” State v. 261 Kan. 932 408 ¶Syl.
940
Therefore, we conclude that the instruction was not given clearly
erroneous.
Issues 7 and 8. The Instruction on Attempted Rape trial court failed to include an essential argues its
element in instruction on He admits that he attempted rape.
failed to to this instruction or to a different instruc- object request and, therefore,
tion our is review limited to whether determining Cravatt, instruction erroneous. 267 Kan. given clearly
314, 1.¶Syl. 21-3301(a),
K.S.A. states: “An is defining attempt, attempt
overt act toward the a crime done who perpetration by person intends to commit such but crime fails in the thereof perpetration
or is such crime.” prevented intercepted executing (Emphasis
added.) court, however, The trial instructed the on the crime as follows: attempted rape “If find defendant you shall consider if ishe guilty you rape, guilty of an to commit the crime of To establish this each of the attempt rape. charge, claims must be
following proved: “1. That the an defendant act toward the commission crime performed of rape;
“2. That the did defendant so with the intent commit the crime of rape;
“3. That the defendant failed to commission of the crime of complete rape; March, “4. this act 1996, That occurred on or about the 30th in Craw- day added.) ford Kansas.” County, (Emphasis contends that because the instruction did given
not make it clear that an “overt” act was required, jury might
have relied on mere acts of die incorrectly preparation satisfy
overt act requirement.
We have held that an overt act is an essential element of an Collins, crime. State v. 257 Kan. P.2d
attempted
(1995);
Robinson,
v.
133, 136,
State
256 Kan.
(1994);
State
278, 280-82,
Kan.
preparation
Kan. at 281-82.
The instruction the trial court was taken from verbatim given 3d
PIK Crim. We are 55.01. as to the PIK instruction puzzled why
941 in with the the word “overt” does not use language keeping However, “overt,” had the instruction used the word even
statute. the of which com- have alleviated
it would not problem Kleypas with “overt” as used in an The word conjunction attempt
plains. itself, act, innocent in done in fur- outward however
means: “An treason, or criminal Blacks Law a
therance of attempt.” conspiracy, 1999). (7th ed. word “overt” in combi- used
Dictionary “act” would be no more definitive with
nation descriptive be find in case in
what acts a would any jury required particular the “act towards the a conviction than
order phrase support aof crime.”
commission of the instruction which
We hold that the language required an act defendant toward the com- to find that “the
jury performed instructed with of the crime”
mission sufficiently jury regard was crime, instruction erroneous. Nev-
to the and the clearly future,
ertheless, to further instruction in order clarify PIK Crim. 3d 55.01 be amended to insert the
we recommend a before word “act” and to include
word “overt” immediately is states: “Mere insufficient consti-
sentence which preparation act.”
tute an overt contends, to the at- with instruction on also regard
Kleypas was because that the instruction erroneous clearly rape,
tempted act which the conviction.
it the overt failed supported specify was to be that the unanimous on the jury required argues the court act either
overt which attempted rape supported State to elect an overt act or
should have given required because did not instruction. Again, object
unanimity trial, our review limited to determination as
instruction at Cravatt, erroneous.
whether the instruction given clearly 1.
Kan. ¶Syl. acts case where several acts are
We have held that multiple could constitute the crime one them charged,
alleged as which act or constitutes be incident must unanimous 286, 289-90,
the crime. State v. Timley,
255 Kan.
(1994). either the must such required which it will for conviction or criminal act rely upon particular all on the must instruct must
the trial court agree contrast, criminal act. Kan. 289-90. In in an al-
underlying
ternative means case *40 where criminal offense be com- single may
mitted be in various there must as to on the ways, unanimity guilt
crime but is not as to the means charged, unanimity required by
which the crime was committed. In an alternative means reviewing
case, the must a court determine whether rational trier of simply
fact could have found each means of the crime committing proved 255 at reasonable doubt. Kan. 289-90.
beyond
However, the at hand neither rape charge attempted presents an acts nor alternative means situation. The overt
multiple possible
acts need not themselves be as criminal of- chargeable illegal and, thus,
fenses this is not a acts case. are the overt Nor multiple Rather,
acts of alternative means the offense. are committing they
acts, themselves, however innocent which signify trigger such, offense of As there nowas
liability attempt. require-
ment that the be to a See State instructed as act. overt jury specific 3 Kan. 426, 430, 2d rev. denied 174, 596 P.2d Thompson, App. (1979). Therefore,
clearly Battery
Issue 9. Failure to Instruct on Simple that the trial court erred in to instruct on
Kleypas argues failing as a lesser included offense of He
simple battery attempted rape.
contends evidence adduced at trial prove attempted the offense of necessarily
rape proved simple batteiy.
A trial court has the affirmative to instruct the on all duty
lesser included offenses established the evidence. Instructions
on a lesser included offense must be even the evi- given though
dence is weak and inconclusive and consists of the solely testimony the defendant. State v. 776, 784, 261 Kan. 934 P.2d Ordway, (1997).
94 An instruction on an included offense is not if proper
from the evidence the could not convict of reasonably Robinson,
lesser offense. State v. 865, 261 Kan. 934 P.2d 38
(1997).
Based committed, on the law in time effect the crime
our of whether was a lesser included offense analysis battery simple out in State v. conducted under rules laid is attempted rape
Fike, P.2d 724 243 Kan. is a lesser test for if there included determining two-pronged “[Fike] provides 21-3107(2)(d). the first elements
crime under K.S.A. Under statutory prong, included are examined. If all the crime and the lesser crime alleged charged crime be of the lesser will automatically elements statutory proved alleged crime, the lesser crime if the State the elements of the establishes charged alleged crime Kan. at 368. If included is found is an included crime of the no greater. still an included crime under the second under the first there be may prong prong, test. document is examined to de- Under the second prong, charging adduced whether at trial the crime termine the evidence must prove If is would another crime. another crime also necessarily charged necessarily prove crime, crime. die former an included 243 Kan. charged
proved proving Williams, at 368.” Kan. at 17. was not lesser included offense
Simple battery attempted *41 Arnold, See State v. 223 Kan. under the first Fike. rape prong a lesser include offense of attempted rape under the elements test). 716-17, (1978) 715, not 576 P.2d battery (holding simple Further, to touched the State was not that prove Kleypas required insolent, or order to at rude,
C.W. in a manner in angry prove was that State some that was the All prove
tempted rape. required these circum
overt act the commission of Under toward rape.
stances, offense at was a lesser included not battery simple err to trial did not in such and the court give failing rape,
tempted
an instruction. Voluntary
Issue 10. Instruction on Intoxication the court’s instruc- two contentions with to raises regard First, he that the instruction
tion on intoxication. argues voluntary defense into an affirmative intoxication thereby
changed voluntary Second, he contends the burden Kleypas. placing upon
improperly intoxica- from
that the instruction jury aggregating prohibited disorder, which also affected of his
tion with other evidence mental intent.
his form necessary capacity stated, these our standard of review for
As we have previously to the instruction based
claims given objection Kleypas’ upon
well established: instructions, “When are to instructions be con reviewing challenges jury sidered and read as a whole without one instruction. If together isolating any case,
instructions state the law in as to the facts properly fairly applied them, if the could not have been misled the instruc then reasonably do tions not reversible constitute error be small in some they may although way Aikins, 346, erroneous.” 261 Kan. 25. Syl. ¶ instruction, which tracked with
Kleypas requested following 21-3208(2): of K.S.A. provisions “An act committed while in a state of intoxication is less criminal voluntary thereof, reason but when a intent or other state of is a mind particular necessary crime, element to constitute the fact be of intoxication taken into particular may consideration in such intent or state mind.” determining
The trial court and instructed the as rejected Kleypas’ request
follows in accordance with PIK Crim. 3d 54.12-A: Murder, intoxication defense to the “Voluntary may charge Capital Murder, Murder, Premeditated First-Degree Second-Degree Attempted Rape, 1996, and the March where Aggravated die Burglary allegedly occurring evidence indicates such intoxication a defendant’s mental faculties impaired extent he intent kill as incapable forming necessary Murder, Murder, in the Premeditated required Second- Capital First-Degree Murder and the Degree to commit a as charges; intent theft necessary required and the Aggravated intent to commit Burglary charge, rape required the Attempted Rape charge.” of his first PIK instruction support argument given defense, intoxication an affirmative
changed voluntary
relies our decision Ludlow, in State v. 256 Kan. 883 P.2d upon we in Ludlow that According Kleypas, recognized
PIK Crim. 3d 54.12-A was a from the statu- significant departure intoxication in K.S.A. 21-
tory language regarding voluntary
3208(2), thus as intoxication an affirmative de- casting voluntary
fense. This our in Ludlow. argument misinterprets holding
The issue Ludlow the involved PIK instruction’s omission of
“or other state of mind” 21-3208(2) where K.S.A. states vol- intoxication be considered “when intent
untary may particular
other state of mind is a element to constitute a necessary particular
crime." Ludlow was an “other state complained premeditation
of mind.” We with Ludlow and held that the district court’s agreed of
use PIK 3d Crim. 54.12-A which from the departed statutory
945 “or other state of mind” was error the by omitting phrase language murder. 256 is with the defendant
where charged premeditated at 147.
Kan. in the PIK instruction to determine when
In the tracking change occurred, Ludlow refer- of “or other state of mind” removal
the Beebe, in State v. 244 Kan. the instruction
enced approved pattern 60-61, (1988), most obvious that “the P.2d noting is in the lead-in the intoxication instruction] voluntary [in
change a de- intoxication from not voluntary changes being declaration — Ludlow did defense.” Kan. 145.
fense being possibly was error or that the
not state this suggested by language intoxication an affirmative defense.
defendant voluntary changed intoxication, the No. 12 on
In addition to Instruction voluntary in Instruction No. 13 that court instructed
trial voluntary a defense to the extent
intoxication may incapable state of of mind
of following forming necessary premeditation, 2, the court instructed: As of Instruction No. trial
Ludlow. part is State has the burden defendant
“The guilty. prove is not You must is not he
defendant required guilty. pre- prove are the evidence that he is not convinced from
sume until guilty you the burden is Instruction No.
that he again guilty.” placed on the State:
proof is defendant The defendant State has the burden is “The prove guilty. until not You must that he is not he is guilty prove guilty. presume required the evidence that he is are convinced from guilty.
you or not use in whether the defendant test must guilty “The you determining doubt as to the of the claims is this: If have reasonable truth any you guilty State, rea- find defendant not If have no must made you you guilty. State, should of the claims made doubt to the truth you sonable
find the defendant guilty.” Ludlow, court read instruction intoxication voluntary the State bore with instruction which stated that another together “ of the de- ‘the criminal intent
the burden required proving ” defendant,’ burden never shifts to the and that fendant’ ‘[t]his that “vol- that the instructions advised
and found properly indicates that be defense if the evidence intoxication may
untary intent, that Ludlow
it rendered forming necessary incapable *43 intent,
the State had the burden of and that Ludlow does proving
not have a burden for
lack of intent.”
the case at read advised together, properly that the State bore the intent, burden to and the jury prove
instructions did not reheve the State of this burden or make vol- intoxication an affirmative defense. We also note that the
untary
trial court avoided the in Ludlow major problem by giving sep-
arate instruction on intoxication voluntary specifically referencing
“other state of mind” and first contention premeditation. Kleypas’
fails. second contention intoxication
Kleypas’ regarding voluntary
instruction is that the instruction from prevented jury using intoxication evidence unless it found that it alone
voluntary negated or intent. He claims that the United States
premeditation Supreme Ohio,
Court Martin 233-34, U.S. 94 L. 2d Ed. (1987),
mitted to combine different kinds of evidence to negate specific
intent for crimes. He that the instruction charged argues given from intoxication for
prohibited considering any purpose
unless established the affirmative defense prepon-
derance of evidence. because in his According Kleypas,
case was from evidence of intox- precluded considering voluntary
ication unless that evidence alone intent, the in- negated specific
struction ran afoul of both K.S.A. 21-3208 and the Due Process
Clause of the United States Constitution.
Martin does not this contention of The de- support Kleypas.
fendant in Martin was with murder. Ohio law charged aggravated the burden of the elements of a criminal
placed offense proving but on the accused the burden of
upon prosecution placed an affirmative defense of the evidence.
proving by preponderance
Self-defense was an affirmative defense under Ohio law and there-
fore had to be the defendant. The defendant was con- proved
victed and in his Court he claimed that his appeal Supreme
conviction violated the Due Process Clause because of the burden him to self-defense. The Court
placed upon prove disagreed
held that the State did not exceed its the crime authority defining
of murder as the death of another with purposely causing prior *44 did seek to shift Martin the burden or It
calculation design. that would The Court noted it of those elements.
of any proving that self-defense the had been instructed different if jury quite there be considered in whether
evidence could not determining case, i.e., the State’s that self-defense a doubt about
was reasonable aside for all unless it satisfied must be
evidence purposes put an The Court held such instruction standard.
preponderance of burden and run afoul of the
would the State its relieve plainly 368, In re 397 U.S. 25 L. Ed. 2d
mandate in Winship, (1970), the State to all of ele- S.
90 Ct. 1068 prove requiring a doubt. U.S. at 233- reasonable
ments of the crime beyond
34. assertion, case, the instruction on
In our contrary Kleypas’ did not limit the consideration of intoxication Kley- jury’s
voluntary did it limit consideration of other state of intoxication nor
pas’ illness, use, or dam- as to mental brain
evidence offered drug prior the State of the in whether the elements proved
age determining the standard it
crime. The instruction with only jury provided in evidence
must consider regarding voluntary evaluating Kleypas’
intoxication.
We above that instructions read as a whole have concluded all of crimes burden of elements charged
placed proving Martin, instructions, in “read as the State. As
upon
whole, are that all the ev- . . . convey adequate self-defense,
idence, must be con- the evidence including going about whether there was reasonable doubt
sidered in deciding State’s of the elements of the crime.” sufficiency proof instruction intoxication
this case fairly applied properly from evidence was not presenting regarding prevented to form intent. The his
other factors ability upon bearing specific all elements the crimes essential
burden charged proving We contention conclude
never shifted Kleypas’ Kleypas. misled could not have been
without merit and reasonably intoxication. the court’s instruction on
by Regarding Timely Notify
Issue 11. Instruction State’s Failure to Testimony
Kleypas Change
This issue involves statement made one of the officers while by back to Kansas after had waived extradi-
driving Kleypas
tion. As noted in our analysis concerning admissibility Kley- confession, before the
pas’ during pretrial suppression hearing, enhanced, of the conversation was both officers be-
taperecording
lieved that the statement “Are we to have to out and going get
walk?” was made trial, Detective Hite. Prior to KBI Wil- Agent
liams listened to an enhancement of the realized audiotape
that it he who had made State, the statement. however,
did not the court of this notify change notify Kleypas required law. *45 so,
Based the State’s failure to do the court instructed the upon that it could consider this failure in the instruction: following “The State’s failure to the defendant notify when timely Tom Williams Agent concluded he was the stated who on the ‘are we person to have to tape going get out and walk?’ be considered may by you what determining weight give
his testimony.” that the above instruction also refer to the
Kleypas requested could to Detective Hite’s because
weight give testimony
Hite had also modified his The trial court testimony. rejected that it was Williams who had realized
request, he had stating Agent
made the statement but was not information, with the forthcoming
not Hite.
We with the trial court. The record demonstrates that agree
while both Williams and Detective Hite after Agent listening the enhanced that the recorded statement taperecording agreed
was Williams; that of Hite did not his statement at Agent change
trial. He that he believed he had made a similar state- explained
ment on back to Kansas. trip
Our standard of review is whether the instruction without given
the additional the defendant language requested by properly stated the law as to the facts of the case and
fairly whether applied
it could have misled the See Carr, State v. reasonably jury. 608, 617,
Kan.
eluding the State to court that the duty placed properly
phasize the court and both change testimony.
notify was officers both thoroughly explored Kleypas
credibility with evi-
trial, consistent court’s instruction trial Hite, Williams, his testi- not Detective
dence that changed Agent
mony. Killing Occurring 21-3439(a)(4) aMakes
Issue Whether K.S.A. 12. Subject Penalty
During to the Death an Attempted Rape based on the intentional was convicted of murder capital commission of the of the victim in the
and premeditated killing however, in- He correct
crime of argues, attempted rape. 21-3439(a)(4) as of K.S.A. attempted precludes rape
terpretation his We find no merit in claim. murder. predicate capital 21-3439(a)(4) the offense of murder as:
K.S.A. defines capital of one of the victim “Intentional and following killing premeditated of, to, such crime: defined in crimes in the commission or subsequent Rape, thereto, criminal as defined in subsec- K.S.A. and amendments sodomy, 21-3502 (a)(2) (a)(3) thereto or tions or of K.S.A. 21-3505 and amendments aggravated thereto, 21-3506 and amendments criminal as defined in K.S.A. sodomy, (Em- thereto.” K.S.A. 21-3301 and amendments as defined in thereof,
attempt added.) phasis “or is that the statutory any attempt argument language
Kleypas’ and not an at- criminal
thereof’ refers sodomy aggravated or criminal sodomy.
tempted rape *46 law, statute is and
The of a question interpretation 843, 847, Lewis, State v. 263 Kan.
court’s review is unlimited. (1998). rule of construction The
P.2d 1016 fundamental statutory that intent of the is the this court’s determination legisla-
guiding from the statute. that can be ascertained
ture when intent governs we must it the effect
When a statute is and unambiguous, give plain what the law rather than determine
intended the by legislature 471, 478, 939 Kan. State v.
should or should not be. Taylor, stat- and the (1997). The
P.2d 904 unambiguous language plain relates to all crimes thereof’ that “or
ute demonstrates any attempt in the same sentence.
specified
Nevertheless, moves the of the beyond Kleypas plain language
statute, that arises reason of suggesting ambiguity testimony of the death
given by attorney general during adoption in Kansas. out that the death
penalty Kleypas points Virginia pen- which statute for Kansas uses the
alty general provided pattern willful, deliberate, “The and kill-
following language: premeditated of, to, in the commission or or
ing any person subsequent rape forcible or forcible
attempted rape, sodomy attempted sodomy sexual Va. 18.2-31(5) (Michie Code Ann.
object penetration.” §
1996). that when Kansas argues
Kleypas Legislature passed statute,
death it modified an earlier version of penalty proposed statute would have made it that a clear explicitly killing offense, awas inas
during attempted rape capital Virginia so, contends,
model. In created an doing legislature in the final version.
ambiguity According Kleypas, application rule,”
of the “last antecedent intended that “or legislature any thereof’
attempt modify only immediately preceding phrase criminal and not other crimes mentioned
“aggravated sodomy” any Ltd., Perdition Minerals
before. See 244 Kan. Taylor Group,
126, 133-34,
(1988)
He also invokes the “rule of which rea lenity,” provides
sonable doubt about the criminal statutes to be de meaning
cided in favor of the accused. See State v. 264 Kan. Vega-Fuentes,
10, 14,
(1998).
We need dwell on the above last The antecedent arguments.
rule is an aid to construction. It not be merely may employed
reach a certain result where the of the statute is language plain Link, Inc. v. See 648, 654, 266 Kan. City Hays,
unambiguous.
eral rule statutes, in criminal it too is subordinate to the construing
rule must effect judicial interpretation legislative design
intent. 264 Kan. 3. Vega-Fuentes, Syl. ¶ statute in Kansas defines the class capital-murder narrowly death
eligible plain unambiguous language.
To advanced would distort die adopt interpretation by
statute, when the resulting absurdity. capital-murder *47 law, considered and were became
statute sodomy rape aggravated as level 2 as shown their classification severe severity by
equally 1996, the as described in K.S.A. 21- offense of
crimes. rape a is (a)(2) level 1 crime. There no
3502(a)(1) and became severity would intend the intentional reason legislature pre-
logical an of of at- the victim the commission
meditated killing during a offense but the be sodomy equally capital
tempted aggravated would not more severe crime of
severe and now attempted rape of our a offense. the failure Finally, legislature adopt capital of the earlier version a law or
an Virginia wording proposed final ver- in case an
statute becomes only ambiguous significant therefore, We, thereof’ “or
sion. hold any attempt phrase and, 21-3439(a)(4) in K.S.A. all the offenses contained
modifies
thus, the victim the intentional and makes killing premeditated of, to, a an commission rape
during subsequent attempted murder.
capital in the Guilt Phase
Issue 13. Prosecutorial Misconduct contends that misconduct during opening prosecutorial conduct trial statements and during closing prosecutor’s conduct denied him fair trial. He that the
and in discovery argues so to warrant the reversal of his convictions egregious trial.
a new of the
Prior a discussion errors alleged by Kleypas, specific with to this court’s discussion
some handling general regard misconduct is The first mat- preliminary appropriate.
prosecutorial of a to be addressed concerns the
ter necessity contemporaneous made While remarks by many allegedly
objection. improper were State objected during closing argument Kleypas, cannot be
others were not. Reversible error normally predicated misconduct during closing prosecutor
upon complaint How- no where objection lodged. contemporaneous
argument
ever, rise to the level of if the statements violating prosecutor’s or her to a fair a defendant his
defendant’s trial and deny right error oc- due reversible Amendment
Fourteenth right process, State the lack of
curs objection. despite contemporaneous
McCorkendale,
263, 278,
In this court “shall con- as
sider the of sentence well as in errors asserted question and shall be
review and authorized to notice appeal unassigned
errors of record if ends of would be served justice appearing Collier, 346, 353, v. In State 259 Kan. 913 597 P.2d
thereby.”
(1996), we held that the same in the 40 hard language pre-1994 statute authorized court to a consider defendant’s
sentencing
claim of misconduct even he had to failed prosecutorial though White, at v. 283, to remarks trial. See State 263 Kan.
object Thus,
305-306,
(1997).
4627(b), this court will consider claims Kleypas’ prosecutorial or not
misconduct whether trial. objected
An court’s the effect of a analysis appellate prosecutor’s alleg- remarks in is a
edly closing improper argument two-step process:
First, the court must determine whether the remarks appellate
were outside the considerable latitude the is allowed in prosecutor Second, the evidence. must deter- court
discussing appellate
mine error, is, whether the remarks constituted that whether plain so were and as to
they gross flagrant prejudice jury against a accused and him or fair her trial. In order find deny -
remarks were not so this court must be able gross flagrant, when whole,
find that viewed in the record as a error light little, if
had likelihood the result of trial. any, changing
McCorkendale,
ing granted prosecutorial (1)
conduct include: Whether the misconduct is so fla- and gross trial, (2) as to the accused a fair whether the remarks
grant deny (3)
show ill will on the whether the part prosecutor,
evidence the accused is of a such direct and against overwhelming it
nature that can be said that the remarks of the prejudicial pros-
ecutor have were little minds of the likely weight jurors. Foster, 204, 198,
State v.
(1996).
Kan.
should be
“It is the of a ain criminal matter to duty see that the State’s case prosecutor
is with earnestness and to use means properly presented every vigor legitimate conviction, about but he should is just bear in mind that he an bring always such, and, whose sanctions court quasi-judicial
officer of the occupies position v. State Ruff, 252 Kan. should [Citation omitted.]” he preserve. traditions (1993). 625, 634, P.2d 1258 to refrain from mis has
A duty making improper, prosecutor See or irrelevant statements jury. inflammatory,
leading, 84-88, 1314, L. 55 S. States, 295 U.S. 79 Ed. v. United
Berger cases. See Lesko
Ct. 629 This duty heightened capital 1527, 1541 (3d 1991). Lehman, Cir. See also
v. 925 F.2d California 998-99, 1171, 103 Ct. Ramos, 77 L. Ed. 2d S. 463 U.S. death all difference of from
(1983) “the (stating qualitative
other greater degree requires correspondingly punishments *49 determination”). of the sentencing
scrutiny capital mind, to in we turn standards
With these securely specific State that the im- raised by alleges
arguments Kleypas. Kleypas to and comments hinder identifies discovery attempted
properly statement, argument, during opening closing prosecutor claims were
at trial which he prejudicial. improper Discovery Hindering Defense
A. in de- the State’s actions hindering persistently
Kleypas argues be considered in
fense must addressing pattern discovery of the State. He and bad faith on the
misconduct part incorporates Williams’ on State’s failure to correct KBI
his Agent arguments to out and the “Are we have going get
testimony regarding of the trial and the failure to inform FBI
walk?” statement all DNA material He adds
court’s order not consume needlessly. the State to failure on this another timely alleged part at to the “officer the elbow”
disclose evidence relating question. Girard, the car ride from
During Springfield Kleypas the crime if officer had
asked if he would have committed police have he it would not mat-
been thought Kleypas replied present. there like that.”
tered “when he suggest Kleypas appears gets statement in omission this
was some sort Agent purposeful Detective Hite’s
Williams’ and reports. and De- Williams’ events
The surrounding Agent question, comment, how the infor-
tective Hite’s failures report 5, 1996, as follows: On came to occurred
mation days April light made,
after the car ride which the comment was in defense counsel
filed motion to communications and preserve police request trial court motion to com- granted
discovery. preserve later, 5, 1997, on
munications. March de- year Approximately
fense to call counsel filed motion as a prosecutor Barry Disney
witness to ask about a he him comment that made in a tel- taped to a member of the conversation office.
ephone attorney general’s conversation, had answer to
During relayed Disney Kleypas’ “officer the elbow” and stated that neither question Agent
Williams Detective had nor Hite this information in his provided such a statement in his In its
report acknowledged testimony. motion, to this the State noted that the of the tele-
response tape conversation had been listened to a defense
phone investigator 29, 1996,
on but defense counsel had never Hite April questioned motion,
toas At a statement. the defense coun- hearing
sel examined Hite and asked if Hite recalled if he asking Kleypas
would have committed the crime had an officer been next standing
to him. Hite “didn’t stated me a or no really give yes
answer.” Hite also indicated that that he ask the Disney requested to a Hite that he had not
question. question, agreed response
included this and answer his Williams question Agent report.
also to a defense that he had not agreed, response question,
written down this and answer. question particular admits this evidence became available to the defense
well before trial but claims the State’s failure to disclose this ex- 22-3212(a)(4) statement under both K.S.A. and
culpatory Brady U.S. 10 L. Ed. 2d (1963), S. Ct. 1194
Maryland,
demonstrates bad-faith to obstruct the defense. Accord- attempt to as the State does not contest that the statement was
ing Kleypas, nature, in the State’s to disclose was
exculpatory duty triggered.
Furthermore, claims Hite’s failure to include re- Kleypas Kleypas’ to this could not have been inadvertent
sponse question given
fact that the matter was deemed so that he was important specif- directed to ask
ically by Disney question. contention that nondisclosure of statement was
Kleypas’ pur- is without The fact that have
poseful wholly support. Disney may
asked Detective Hite to ask this does not question suggest is no should he have. There it nor
that Hite any significance gave to State hindered
evidence the discovery by failing purposefully the, he had made Williams realized the defense Agent
notify statement, to out and walk?”
“Are we to have by failing get going at if all to conserve DNA material
to the FBI inform possible, whether question response
by failing report Kleypas’ been the crime had an officer have committed
he would present that the State should have notified it is clear
at the scene. While have informed these statements and should
the defense counsel of DNA the miscon- court’s
the FBI testing, ruling regarding fair so as
duct here was not deny Kleypas flagrant gross
trial.
B. Statements Opening statements
The State initiated by saying: opening Court, counsel and ladies and “If it gentlemen jury. please opposing old. In March of awas woman years just twenty-one [C.W.] bright, lively young Kansas. She was a at State 1996 she University Pittsburg, junior Pittsburg tennis, in fashion mer- be She was interested in to married to [M.F.]. engaged her other her wedding.” major, people planning
chandising, helping the bench counsel defense object, stating: approached Honor, are activities ... irrelevant all of is “Your this irrelevant. [C.W.’s] an this do the evidence. He’s It has to with making argument nothing jury. relevant, is and none of that is statement time which not the opening purpose evidence, it at all so there is no none of it is on purpose going put is. because is what it He’s not to that I’m whole line objecting argument was a she on she wonderful to be allowed to evidence person, says going put tennis, or that. All of that is she
was a she played buoyant person, played
irrelevant.”
The State responded: Honor, at least that but we have we sire to dwell on “Your right going what she was interested about
show who she was. I’ve got just questions couple that, in, it is not the do and we aren’t what sort of did she dwelling things will evidence on and it is it we central of the case but part something produce
perfectly proper.” State to ordered the but
The trial court overruled objection
“move along.”
956 trial,
Prior to had filed a motion bar victim Kleypas impact
statements of the trial. The motion during penalty phase sought exclude, other evidence the de- among things, “any regarding
ceased’s life the time of her death.” The trial court plans granted
the motion. contends that since the was instructed
Kleypas juiy during that it could consider all evidence
penalty phase presented during State was from victim guilt phase, prohibited presenting any evidence at in the bifurcated
impact any point Kley- proceedings. contends the State’s comments demonstrate bad faith.
pas opening
Further, even if this court concludes this is not error in and of
itself, this court should consider it as argues, part
overall misconduct which he claims pattern prosecutorial “per-
meated this case.” contends the State was bound its in the acquiescence
motion to bar victim evidence impact during penalty phase such evidence basis argue during guilt phase. is the since the
argument apparently prejudicial impact i.e.,
the same for both what is in one must phases, improper phase in the other. This same in
necessarily improper concept, except reverse, was discussed in Souter’s concurring opinion Justice Tennessee, 808, 841, 720, U.S. 115 L. Ed. 2d 111 S.
Payne
Ct. 2597 reversed the decisions Booth v. Payne Mary
land, 496, U.S. 440, 107 96 L. (1987), Ed. 2d Ct. St. Gathers, 805,
South Carolina v. 490 U.S. 104 L. Ed. 2d (1989),
S. Ct. 2207 which had held the Amendment Eighth
United States Constitution bars the admission of victim impact
evidence aof trial. held that during penalty phase capital Payne
such evidence was not se Amend per precluded by Eighth
ment.
duced that is so that it renders trial funda unduly prejudicial unfair, the Due Process Clause of the Fourteenth
mentally
Amendment
a mechanism for relief.”
its the United States Court noted that in analysis, Supreme many
cases evidence to the victim is before the be relating already
cause of its relevance at the of the trial. 501 U.S. at guilt phase
823. Souter commented: Justice *52 If we were to with raises a dilemma thus very practical consequences. “Booth to be to the full effect evidence the rules of changed guarantee guilt-phase
require the de- facts unknown to to exclude consideration specific Booth’s promise his deci- in thus without morally evaluating and significance fendant supposedly kill, trials the of most we would reduce to seriously comprehensibility sion what is that allow them to understand of those details of context jurors depriving hand, If, we are leave the rules of trial evidence on the other to described. being alone, a sen- will not be attained without Booth’s separate requiring objective States, on be a to be This would major imposition empaneled. tencing jury however, a further would such I that no one consider seriously adding suppose (Souter, U.S. at 841 J., concurring). requirement.” because it on State constraints in guilt phase
Imposing an would a motion present concerning penalty phase
agreed have for the State. the State may acqui- Though trap
unexpected motion to bar victim evidence
esced in during impact Kleypas’ so of the trial. It did not do for it guilt phase
penalty phase, that his motion in be noted that does
should argue and second first
limine to arguments during prohibit improper statement here. The trial the prosecutor’s
stage prohibited opening motion; instead, it the court stated did not sustain this
trial court basis. consider on
would case-by-case improper arguments are not evidence. statements counsel in criminal prosecutions “Opening what each are for understanding assisting jury
They given purposes what its evidence at trial will establish and to advise side questions expects its decision. The will be prosecuting presented tendency permit latitude in the facts reasonable they propose defense attorney stating McCorkendale, 267 Kan. 4. ¶Syl. prove.” the reasonable statements were within
The prosecutor’s opening facts which facts or inferences from
latitude in reasonable stating It be unreasonable would the trial. would
the State prove during without some refer to the case the State to victim any expect The absence who this individual was in life. concerning
qualifiers be artificial. There nec- of the victim would characteristics his or was and be some reference to who victim must
essarily of the homicide. in the context the time
her relevance place here were not error. comments
The prosecutor’s Conduct Trial
C. During of KBI defense counsel Wood’s cross-examination Agent
During on memorandum
Williams techniques, concerning interrogation occurred:
the following exchange And testified that Stu Hite read you’ve Miranda to Mr. already rights Kleypas? “Q. Yes, “A. sir. — Then it Okay. goes “Q. Honor, “Mr. BORK Your I’m [Prosecutor]: this line of object going ques- because this into with whether is a it free and tioning gets dealing voluntary confession which the Court has ruled already upon. “Mr. WOOD: I to that statement. That is object under Crane v. Judge, improper added.)
Kentucky.’’ (Emphasis a heated occurred at the objections,
Following argument mistrial,
bench. Wood *53 which the court took under requested
advisement. The trial court with Bork that the agreed prosecutor
defense could counsel not discuss the concern- legal requirements aof confession but with Wood that he
ing admissibility agreed
could raise the circumstances questions concerning surrounding
the confession. The trial court instructed the “Ladies and jury: of the are to Mr. Bork’s comments
gentlemen jury, you disregard
in his last You as the have the to consider all objection. jury right
the circumstances of the defendant’s statement and surrounding what desire to those circum-
you may give weight you surrounding
stances.” that his counsel had a
Kleypas correctly argues right litigate
issues the voluntariness con- surrounding reliability Kleypas’
fession under Crane v. 476 U.S. L. 90 Ed. 2d Kentucky, (1986),
that it is inconceivable that the was unaware of the law prosecution
and that this incident must be considered as evidence of the pros-
ecutor’s ill will in the overall of misconduct. addressing pattern
The trial court in mistrial, the motion for stated: addressing “So we start with the the defendant entitled premise completely present the circumstances of the surrounding confession the That is an undeniable. jury. I told that bar, when came to the you you bench for the side . . . that is up allowed, what die Court I didn’t restrict the defendant this information giving to the the defendant was entitled to jury, the circum- fully explore surrounding stances that attend the statement in issue. Indeed the Court instructed the jury Now, to that effect. I don’t think very has been from consid- jury prevented circumstances. have ering been advised that surrounding can They they give to the appropriate circumstances that weight deem surrounding they appro- I believe will and I believe
priate. can do this. I believe that Mr. Bork’s they they So are from this. did not they precluded doing comments jury convey will be denied.” for mistrial
the request between counsel and the of the heated
Our review exchange does not ill will this claim
record finding support involving While objection by prosecutor part prosecutor. defense counsel was able been have fully litigate
may improper, should
the issue of credibility give weight Kleypas’ that was were informed it within and the
confession clearly jurors to make that determination. as fact finders
their Finally, province comments the court was instructed by disregard circumstances, no error Under these prejudicial prosecutor.
occurred. Closing Argument
D. contends during arguments, prosecutor closing Wood, attack on defense counsel re-
Bork launched personal evidence, claimed defense not in counsel
ferred matters of some offense. argues guilty
thought Kleypas occurred of misconduct
least seven incidents closing during argu- of his to fair trial. that this constituted denial
ments and right Robin, of the State’s direct examination of
1. completion Upon *54 victim, defense counsel asked for the roommate of the police Twice the denied her statement. prosecution containing
report cross-examination, of the how- At the beginning report.
having
ever, stated that she had discussed the with the witness report time, the found the At this gave prosecutor report
prosecutors. counsel, who then his cross-examination.
it to defense completed counsel asked the defense
Outside the jury, presence that the had be made known
court that it prosecution misrepre- court it denied The trial the State when
sented having report.
refused, saw no concealment it considering noting purposeful the case. documents in
amount of counsel commented the wit- defense
In upon closing argument, discussed the with the that she had
ness’ revelation report prose- do see the hand at this
cutors and stated you “only point going State “That is not in briefcase.” The
down objected, stating: court sustained Wood’s The trial That is Mr.
evidence. fantasy.” Thereafter, Wood his continued without objection. argument “You decide what saw. I Tve fan-
objection by stating: you guess
tasized a materialization of that into the hands of co- report my time
counsel for the first here in the courtroom. I very guess you
all too.” fantasized that that the use of the word
Kleypas argues prosecutor’s “fantasy” that Wood was to fabricate a claim lying
implied attempting
of misconduct. the trial court credence According Kleypas, gave
to this attack and Wood’s in front of the credibility impaired contention, In of this objection. sustaining support Lockhart,
cites State v. 24 Kan. 2d 947 P.2d rev. App. Lockhart,
denied
found that misconduct which included de- prosecutorial calling
fense counsel a liar necessitated a new trial. 24 Kan. 2d at App.
491-92. hand, case use of the word prosecutor’s “fantasy”
was in to the advanced that the response argument by Kleypas
State concealed the until that conceal- purposefully police report
ment was discovered. Defense counsel also used the same term “I all fantasized that too.”
arguing effectively jury: guess you
Moreover, the entire transaction between the parties played
out before the The circumstances in Lockhart bear no simi- jury. to this case. Under the case, circumstances of this we con-
larity
clude that misconduct did not occur. prosecutorial
2. The second attack occurred the State’srebuttal alleged during
when Bork that he was used to prosecutor argued during closing
a defense accusations that he was the facts or attorney’s hiding unethical because “that is an old tactic.” Wood
doing something Honor, “I Your I have never accused Mr.
objected, object, stating,
Bork of It that. is not an old tactic with me. I to that.” The object stated,
trial “I don’t believe he was Bork judge you.” referencing
continued: case,
“Doesn’t want to talk about the facts of this would rather talk about counsel *55 me,
and I don’t blame for that. It doesn’t him endear him to it particularly doesn’t
make me like him a lot but I don’t blame him for that. Because there is not a lot
of case for them to talk about here.” Bork feels about me how Mr.
Woods per- “Judge, again objected: be admonished that doesn’t I ask that the jury improper.
sonally and told the court sustained the
matter.” The trial jury objection
to Bork’s comment. disregard Wood’s that by objection overruling complains
Kleypas conduct and comment, court the trial
“old tactic” wrongful implied at- counsel was that defense credence Bork’s implication
gave were admits the to mislead jury. proceedings Kleypas
tempting however, acrimonious”; for ex- there was no justification
“highly feelings.
pressions personal it was error for
While we prosecutor acknowledge counsel or what defense his feelings personal regarding
express him, we note that the trial have
defense counsel may thought and admonished the sustained the
court disregard objection this, we that the entire conclude
the statements. Even without so not amount to misconduct does gross flagrant
exchange a fair trial. deny Kleypas dur- misconduct
3. In the third instance alleged prosecutorial Bork stated: prosecutor
ing closing arguments, Remember Dr. he shaved his hairs. sure she was alone and pubic “He made trace evidence on the how Dave Schroeder about body Mitchell and talking defendant who had left the hairs there. The be able to determine
you might hairs, shaved in hairs were couldn’t have left his pubic preparation any pubic
this.” when that this was misstatement
Defense counsel Moots objected hair. shaved his was no evidence as when
there pubic then stated: “What Bork trial court overruled the objection. have had in mind.” could the defendant
other purpose reason there was no evidence contends subjective so hair, whether he did no evidence of his
for removal pubic court overruled that when the trial basis. He
on regular suggests counsel’s it
the defense impression gave objection to the State’s and added
Bork’s was accurate statement support
theory premeditation. ar- not error. In were
The comments of closing prosecutor inferences from draw reasonable may
gument, prosecutor outside the evidence. not comment facts
evidence but upon may *56 Pabst, 501, 507,
State v.
(2000);
Kan.
McCray, record,
evidence it was to in the reasonable infer that Kleypas
shaved his hair in for sexual assault on C.W. pubic preparation
4. next to he what called the State’s mischarac- objects Kleypas Dix,
terization of the defense counsel’s to letter Dr. a pathol- J.D. and medical examiner from Bork stated: Missouri. “When ogist you
discuss Dr. Dix’s remember the reason he was here. testimony, why
The defense wrote him and said we need someone to challenge
Dr. Mitchell’s about testimony penetration.” objected Kleypas was letter, a mischaracterization of the but grounds was overruled. contends what was objection Kleypas actually
stated in the letter was: “What we are interested in is any way Dr. Mitchell’s conclusion the anal
challenge regarding sodomy.” was criminal Nonethe-
Kleypas acquitted aggravated sodomy.
less, the “attack” was in Kleypas suggests pertinent addressing of bad faith demonstrated the State.
pattern
Dr. Dix admitted on the stand that the defense “wanted a way Dr. Mitchell’s The comment challenge testimony.” complained
of was fair of the letter and did not interpretation unquestionably
influence or because was prejudice jury acquitted criminal
aggravated sodomy.
5. that further instances ill will were shown argues State,
when the violated the trial court’s order closing argument, limine avoid reference C.W.’s characteristics. personal
Prosecutor Bork stated: was a woman “[C.W.] young twenty years
old. She had a wonderful life.” While that the trial acknowledging
court sustained and told the Kleypas’ objection disregard comment, this was a Kleypas suggests continuing disregard
his to a fair trial. right
We doubt whether the statement “She had a wonderful life”
violated the trial court’s order in limine. While the trial court’s
order related to characteristics, the victim’s personal phrase of is so that it can
complained general ambiguous hardly
said to be a reference to C.W.’s characteristics or a vio- personal
lation of the motion in hmine. The fact that she was and 20 young old in the evidence and did not with
years provide if it be considered did have. Even can it
information already as to be of no was so brief and limited
violation, the statement on the stands as an of ill will effect hardly example
prejudicial State.
part occurred, of will ill
6. Another according Kleypas, example *57 reali- was KBI Williams’ Bork
when discussing Agent prosecutor statement: on it was his voice
zation that making audiotape there to to out and walk?” Bork said: “If we have
“Are get going this information didn’t fault in the fact that
is Judge, get but re- court sustained an fault.” The trial
then it is objection my Bork’s to a curative
fused instruction. argues attempt Kleypas give because it im- on himself was
to tiie blame solely improper place could Instruction No. it informed jury disregard
plicitly to it consider the failure notified the could
which notify to Williams’ what testimony, give
determining weight Agent Williams’
also credibility. vouching Agent by implicitly to when Bork Instruction No. 10 occurred reference
The alleged that should told state have
stated: “As the brought Judge you, counsel, that.” Court and I didn’t do
to attention of opposing misconduct. that the statement was not
We conclude prosecutorial as to deflect fault statement could be viewed an
While the attempt Williams, No. as worded did not Instruction
from place Agent Williams but rather on either Bork or Agent responsibility
the State. the State’s comments toward
7. Finally, complains Kleypas counsel when Bork said:
the end closing “Opposing argument is not the time death of his client. Now talked about the life or
has to or not is determine whether that. Now
to determine your duty that his client is is And he
his client something. says guilty guilty. defense The trial court sustained murder.”
It is just capital to admonish court was not asked The trial
counsel’s objection. do so sua nor did it sponte.
jury, record, we two instances could find
After only searching offenses. to lesser counsel Wood made reference
where defense murder instructions of the lesser included his
During explanation stated:
to Wood the jury, now, “And I’m to tell I’m right to—I’m going you asking you you asking —I'm law, facts, it is the to do under die under the under the telling you right thing murder, situation to not Mr. to not convict him of give Kleypas capital capital that, it murder. is It Beyond wisdom. wisdom based your up up your upon
what have heard seen what to do. you
“I’m trust in We are trust in look at that you. going going you beyond and do what is appropriate.”
In his at a same later “[Bjut Wood stated: argument point, you
know at this know can’t convict enough you point, enough you
Mr. murder. The rest is in hands. That it Kleypas capital your
is all in hands.” your
It is that the defense counsel’s tactic in apparent closing argu-
ment was to not to convict murder. urge capital Wood’s statements could be an
Although perceived reflecting murder, of some lesser crime of
opinion guilty
Bork’s inferred, reference Wood’s whether opinion, express
was improper. 267 Kan. at we held that error is committed McCray,
when the Moreover, his or her prosecutor injects personal opinion.
“[cjourts have found that it is generally, although uniformly, a for ain criminal trial to in
improper prosecutor jury speculate
oral about the beliefs the defendant’s attor- argument supposed with to defendant’s or innocence.” See State v.
ney
guilt
respect
214,
219,
Kan.
2d
(1980).
Carpenter, App.
case, we conclude that the comments of the were error. prosecutor
The is whether tire comments denied remaining question Kley- a fair trial. As noted in the of our discussion con-
pas beginning misconduct, our standard of review well is
cerning prosecutorial
established: “In a s remarks determining made prosecutor improper closing argu- ment are not so and as to the the gross accused flagrant prejudice jury against trial, a him or her fair deny court must able to find that reviewing whole, little,
when viewed in
a
of the record as
the error had
if
light
likelihood
any,
the result of the trial.
This
a harmless
changing
error
The court
analysis.
must be
a
able
declare
reasonable doubt that the error was
beyond
harmless.”
McCorkendale,
State v.
267 Kan.
We conclude that the remarks of were not so complained gross as to a fair trial. The evidence of was of flagrant deny guilt there is little nature that
such an possibility pros- overwhelming minds. were s comments
ecutor given weight jurors’ a doubt that error reasonable
Thus, to conclude we are able beyond
was harmless. jury 14. Misconduct
Issue trial, a filed motion Kleypas phase
Following penalty a mis-
recall of allegations hearing jury, requesting motion was affidavits The and new trial.
conduct accompanied Nease, an affidavit of and the
from five investigator Gaye jurors Unit, Defense her interviews
with the Death regarding Penalty with affidavits from State
with the eight jurors. responded
jurors. misconduct instances six during occurring alleges
Kleypas and penalty phases: guilt officer, Garrison, consulted Kansas (1) improperly police Juror deliberations and Handbook Code and Procedure
Criminal during to the other
read from it jurors. the Bible
(2) during phase. Mawhiney quoted Juror court’s instruction considered (3) Kley- disregarded Jurors failure penalty phase. testify during
pas’ serve of time would about (4) length speculated Jurors to death. not sentenced if he were
in prison evidence after to consider refused (5) Seawood mitigating Juror was introduced. homicide conviction
evidence of prior Kleypas’ death vote for the other (6) Garrison advised jurors Juror to death. would be
did not mean put Consulting Criminal Code Kansas
A. *59 the trial court ruled a memorandum except opinion, Garrison’s consultation of statute
the claim concerning juror the in-
handbook, reasons referenced personal allegations and, such, as to the verdict on
dividual relied improperly jurors however, found, court The trial into their mental
delved processes. the trial court not involve mental did
the “handbook” processes
ruled this was a area of the trial court inquiry. Accordingly, proper
allowed the recall of Garrison and held on juror hearing
matter on 1998. February stated: affidavit Swygert’s
Juror deliberation a came definition of “During intent. The question up regarding officer advised that the court’s definition was and different
police from wrong that the definition had her. She took a out book department given her police and read the definition out loud. She stated that the court was purse making up its own rules and that she did not wish to be a it.” part Garrison, officer, stated in her affidavit: police
Juror “I that an element had been left out of the first murder instruc thought degree
tion. I had the Kansas Criminal Code and Procedure Handbook out put Kansas Peace Officers Association with me. I looked at the definition of first it to murder have read Because of concerns we asked degree may jury. my about the elements. When the question told us that the instructions Judge
were correct I based decision on the written instructions that were my to us." given
At the recall Garrison testified that she consulted hearing, juror
a Kansas State Statute Code book the various concerning degrees
of murder deliberations. Garrison during guilt-phase kept
handbook in her She could not remember whether she con- purse.
sulted other but denied portions specifically reading anything intent or other aon definition of
regarding advising any jurors
intent. Garrison also did not remember if she read the definitions
of first- and murder the other members. As second-degree jury handbook, result of her Garrison asked the trial court a reading The trial court’s clarified she had.
question. response any questions
Garrison’s the court read: question officer, “As I know one element of 1st police murder premeditated degree
was left out of the This instructions. element I believe that the murder the commission of another violent I
happened during realize I must felony. only hand, the instructions rely On the other my personal I knowledge. can’t erase this & make a decision. I I think should be excused & knowledge an alternate take my place.”
The trial court “You are instructed that the instruc- responded:
tions state the elements of the crime and that correcdy charged are to follow said instructions. You are instructed to review
you
967 state the as elements #17 and #18 instructions correctly they jury and Murder.” First Murder
of Premeditated Felony Degree handbook, testified, the trial court noted
After Garrison stated the law
awith minor irrelevant correctly regard- exception, murder and first- and second-degree voluntary manslaughter.
ing of this extrinsic court concluded that the introduction
The trial However, on this
material was misconduct. mainly relying juror Goseland, v. 729,
court’s decision in State
256 Kan.
(1994), Court of decision in and the Appeals’ (1979), 593 P.2d the court concluded the
Kan. 2d App. or
handbook did not introduce material issues fact personal and, therefore, was no of extraneous facts there showing
knowledge The trial court were substantially Kleypas’ rights prejudiced. motion for new trial based on misconduct.
denied juror Kleypas’ First, two he that the trial advances argues arguments. further where affidavits
court should have conducted inquiry a
submitted contradicted during hearing. juror’s testimony of the the limited recall hearing, objected point- “scope” out the conflict between Garrison’s testimony denying
ing apparent from her handbook and
that she read the definition intent cites the
affidavits of and He language juror Healy juror Swygert. (1993):
found in Saucedo Winger, 252 Kan. 850 P.2d a mis-
“We found it advisable to into have juror’s permit inquiry comes to the attention other members
conduct which denied,” or a statement: be verified and may subsequent
panel issue, misconduct relates to material
‘Where only juror’s a trial court to determine if the misconduct improperly
way
influenced verdict is to recall the the jury’s inquire.” 729, 732.
Kan. at on the issue are K.S.A. 60-441
The two statutes bearing 60-444,
K.S.A. which provide: as or no evidence an of verdict an indictment “Upon validity inquiry statement, conduct, event or condition
shall be received to show the effect of any or dissent from of a him or her to assent to the mind
upon juror influencing it which was or indictment or the mental the verdict processes by concerning
determined.” K.S.A. 60-441. “This article shall not be construed to a as a from exempt juror testifying
witness conditions occurrences either within or outside of the room indictment, a material the verdict or the having hearing validity except *61 60-444(a). as limited K.S.A. 60-441.” K.S.A. expressly
The which was 60-444(a) under K.S.A. was inquiry proper
whether Garrison committed misconduct the definition by reading intent from her handbook and whether she read the definition
to the other but not what effect the misconduct have jurors, might Saucedo,
had on the of the where this thought processes jurors.
court did find the trial court abused its discretion to recall by failing none of the was recalled or further. jury, jurors questioned
Here, the trial court did recall Garrison. Garrison was ex- juror
amined and cross-examined parties.
The of new trial or to answer for granting jury recalling is
misconduct within the sound discretion of the trial court. K.S.A. Saucedo,
60-259. 729; Macomber, See 252 Kan. at State v. 396, 407,
Kan.
769 P.2d
cert. denied
test of trial court’s abuse of discretion is whether no reasonable would with the trial court. If reasonable
person agree person
would an court will not disturb the trial court’s agree, appellate Goseland,
decision.
Intent was a material issue at trial. The issue here is whether the
trial court abused its discretion the recall by limiting jurors
Garrison. It difficult conceive what further purpose testimony
from the other would if Even the affidavits of jurors provide. Swy- true, and Nease are there is no that the
gert accepted allegation
definition of intent contained in the handbook was incorrect. Fur-
ther, misconduct, after Garrison’s asked for clarification jury
from the court. The court directed the instruc- proper
tions which stated circumstances, the law. Under the correctly
trial that a recall decision other than Garrison was judge’s jurors was anot decision with which no reasonable
unnecessary person
could has failed to show that the trial court abused agree.
its discretion in of the recall or limiting scope denying
motion for new trial on the basis Garrison’s actions. Mawhiney’s Quotation
B. Biblical furor Garrison’s affidavit admits that another
Kleypas argues juror the Bible to her.” states that it is not clear
“quoted though discussed, Bible was it is clear that the
what specific passage he considered in Accordingly, argues penalty phase.
improperly minimum, or, a recall at the be set aside death must penalty ordered for further inquiry. “I do remember one in relevant
Garrison s affidavit stated part: me, but this did not a Bible big part play
lady passage quoting occur- mentioned this other affidavit decision.” No juror my stated, in relevant affidavit
rence. Nease’s part: Gaye Garrison, she advised that she was having difficulty
“When I interviewed Juror beliefs. In her death because of her to vote for religious response deciding this, from the Bible about statements Mawhiney passage quoted making Juror her concerns about im- had the effect of to her. The removing religious quote allowed vote for the death the death her penalty.”
posing proceed in its mem- refer to this incident court did not trial specific Instead, the court concluded
orandum *62 except opinion. handbook, of mis- all other
Garrison’s her allegations consulting The State’s the mental
conduct delved into processes jury. misconduct and juror remaining allegation
response found the affidavits is that the trial court correctly
allegations and, thus, This were inadmissible.
delved into mental processes a biblical fact that
court consider the Mawhiney quoted pas- may 60-444. See K.S.A. 60-441 and
sage. cites, a in the room.
In the cases Bible juiy present 1534, (N.D. Ga. v. 706 F.
The court in Kemp, Supp. Jones court have 1989), error for the trial held it was constitutional at a into the room to take Bible for the jury jury
given permission court was the in its decision ap- Key implied jurors’ request. to extra reference though judicial authority jury’s
proval the Bible was read or
record was silent on whether merely present dicta, stated it “in no means the room. In the court
in way faith cannot their rely deeply- personal
suggest jurors to im- decision of whether the awesome
held beliefs when facing 706 F. a fellow citizen.” of death on the sentence Supp.
pose
1560. 1981), the (Tenn. 627 S.W.2d State v. Harrington, death sentence vacated the defendant’s
Tennessee Court Supreme
where a was excluded because of to the juror juror’s opposition
death court also noted: The penalty. trial, deliberations in the foreman “[D]uring sentencing phase jury buttressed his for of die death imposition argument penalty by reading course, action, selected biblical His was error which would have re- passages. a new absent the error in for cause quired in sentencing hearing jurors excluding added.)
violation of the
standard.”
Though determining grounds standing
alone, the Court noted it was error for Kentucky Supreme jurors
to take Com., Bibles into the room with them in Grooms 131, 142 1988).
756 S.W.2d Chief (Ky. Justice, concurring would have found the use of the Bible an dissenting opinion, Furthermore, additional for reversal. the Chief ground Justice
found it that the uncontested affidavit con not “alarming” only
firmed existence and use of the Bible but deliberations during role” in the decision particular passage “major played jury’s
to vote for death sentence. The Chief stated: Justice “What the Bible about the of a death ain says appropriateness penalty particular case is not a concern of ‘The law legitimate when penalty phase jury. specifies the death and neither the nor penalty the defense coun- appropriate, prosecutor sel should be adduce evidence as to how case should be permitted [a capital] Commonwealth, decided on Ice v. 667 S.W.2d religious grounds.’ Ky., (1984). If evidence of biblical references to is not capital punishment competent trial, of a it is axiomatic that a during not phase capital jury may consult the biblical its life and
independently
scriptures
guidance
reaching
(Chief
death decision.”
All we know from the affidavit here is that juror Mawhiney read, a biblical Garrison, but it did
quoted, passage juror *63 a
not role in her decision. The trial court did not abuse major play
its discretion not a recall or into this matter. by ordering inquiry Considering Testify
C. Failure to furors Kleypas’ the trial court erred in to recall the argues
Kleypas failing jury
to into affidavits that the considered inquire jurors stating Kleypas’
failure to instructions in both testify jury despite directing phases fact; to not consider this into jury inquire juror speculation alternate in the event a death
regarding sentencing dispositions
971 she affidavit and one was not sentence juror’s stating imposed; evidence after she was informed of not consider
did mitigating to re- The trial court declined conviction. homicide prior
Kleypas’ the claims of these
call finding improperly any allegations, jurors
delved into the mental jury. processes 600, Kan. that in State v. 215 Myers, acknowledges
Kleypas be im
602-03S,
(1974), we ruled
verdict
peached a defendant no re this leaves holding
testify. complains aof court’s instruction and fur
course despite flagrant disregard
decisions,
Ottawa
with later
thermore
inconsistent
City
citing:
417, 424,
(1984); Verren v.
Heathman,
v. 236 Kan. 259, v. (1980); 607 36 State Wain 227 Kan. P.2d City Pittsburg, (1993); 856 2d P.2d 163 18 Kan.
wright, App. Johnson 5 Kan. 2d P.2d suggests Haupt, App. be one voted for the death the extent even juror to fair and he was denied
cause of his failure testify, right trial.
impartial misconduct, the
When allegation juror addressing specific Mitchell, 185, 672 State v. 234 Kan. P.2d 1
trial court relied on
(1983), in Mitchell found alle- which followed the Myers. ruling were considered defendant’s failure that a
gations testify juror Kan. at 191. The trial court fur- K.S.A. 60-441. 234
prohibited con- failed to a conscious found the affidavits demonstrate
ther the instructions follow- on the the jury disregard part
spiracy 2d at 453. 18 Kan.
ing Wainwright, App. “ ‘A cannot this court cited the rule: In juror long-held Myers, that in the deliberation heard to his verdict by saying impeach took into consideration other member of
he jury his own behalf failed to
matter of the defendant testify having do not to so.’
when the instructed [Citation omitted.]” K.S.A. 60-441. what is codified in at 602. This is in essence
Kan. facts, no error relied on
Under similar Mitchell Myers finding admissible as ruled a affidavit was not the trial court
when juror Kan. at 190-91. the mind of the into juror.
delving Ottawa, discussed when it was this court proper City of has not new trial based on evidence a motion for
grant *64 Ottawa
followed the court’s instructions. City acknowledged
limitations of K.S.A. 60-441 and 60-444 and held:
“Where under all facts and is circumstances it disclosed that was the jury confused in and in or where a verdict making findings awarding damages, jury manifests instructions of the court die on issue of dam- disregard plain or elements of indicates or ages, arbitrarily ignores proven damage, passion, prej- udice or on the issues of the verdict should compromise liability damages, set
be
aside
for a
on motion
new trial.”
Again, jury spe- to circumvent the instructions to include
cifically conspiring given fees in the amount of awarded and did not rest
attorney damages on the mental of the
solely processes jury. truth and to such “[T]he misconduct can be tested. veracity testifying those
The matters recited in the affidavits filed in case do not relate present solely die mental nor do rest alone in mind of a or processes, diey juror jurors. affidavits, matters set forth in the if would establish conscious proven, the members of die conspiracy by circumvent the instruc- jury disregard law
tions the court.” 227 Kan. 262. given by
A similar situation existed in 5 Kan. 2d at 686-87. Johnson, App.
The same where affi- repeated Wainwright, concept juror
davits were offered show the the trial court’s jury disregarded
instruction on consideration of bloodhound evidence. The Court found error in the no court to delve into the Appeals refusing
mental where verdict is so “[t]he processes jury contrary
to the evidence that it the in- suggests disregard conspiracy
struction.” 18 Kan. 2d at 453. App.
Where claims of misconduct directly implicate jury’s
mental and cannot be here, verified as is the case processes readily
the trial court does not abuse its discretion to recall by refusing Where the affidavits set forth the truth of jury. allegations, verified, can awards,
which as in the trial court can damage
allow and order a new trial. There no conflict in this area inquiry law. The trial court did not abuse its discretion by refusing
recall the based on the court’s allegations jury disregarded
instruction to not consider the fact that did not testify
either the guilt phases. *65 fury’s Speculation Sentence Potential Non-death
D. affidavits show the the jurors during speculated argues
Kleypas be to of time he would on the amount
the required penalty phase He contends this was were not the death
serve if imposed. penalty of involved consideration recall and it
a area for inquiry proper because the he was contends
extrinsic matters. Kleypas prejudiced a in the that this
affidavits demonstrate key part speculation played Furthermore, to verdict. Kleypas, juror according sentencing
jury’s of alternative the affidavit shows understanding jury’s
Swygert’s that because of the was contends ju- wrong.
dispositions law, there was each other
rors’ to misadvise regarding attempts death sentence. reversal misconduct
jury requiring Co., 452, 476, Twist 253 Kan. 856
In Cott v. Peppermint Mgt. a the extent trial court can (1993), 906 this court considered
P.2d of the and stated:
delve into the mental jury processes “ a we have held that statutes 60-441 juror ‘Under these [K.S.A. 60-444] itself; in the verdict verdict on inherent not his or her any ground
may
impeach
in
influenced him or her
what considerations
not
may
personally
juror
divulge
or
led him her to
final
verdict or what
personally
reasoning
arriving
(1973).
780,
misconduct
physical
(1980).
259, 260,
36
227
607 P.2d
Verren v.
Kan.
City
Pittsburg,
“
influence
a verdict or
factors which
‘The mental
juror
reaching
process
a ver-
into for the
cannot be
purpose
impeaching
mental
inquired
process
for
of a
on these matters
dict.
forbids the
very
Public
juror
policy
questioning
reason, i.e.,
to test the truth or
there is
veracity
obvious
no
way
possible
718, 729,
impeach but without the room facts or occurrences within or only physical Co., verdict’); v. Union Railroad Kan. she in the Smith reasons joined Pacific (1974) (trial 134-35, affidavit court excluded juror’s P.2d properly of the were clear and were some
that stated ‘instructions confusing
jurors’).” of what sentence would receive jurors’ speculation
or how would incarcerated if he did not receive long Kleypas
the death of the part reasoning thought processes In accordance with our well-reasoned in this jury. precedent
area, these were not for recall and in order proper subjects inquiry the verdict. impeach Mitigating
E. Refusal Consider Evidence luror’s defense,
In an affidavit for Seawood stated: juror “I felt cheated and we when were told about the old killed angry lady being the first time at the trial. Once about I heard murder of penalty phase the old I did not want hear more. didI not even consider lady, after I mitigation *66 heard about the old murder. I felt it like was lady’s that had my grandmother been killed. At second went to the old even more phase my than thought lady [C.W.], I did not hear what other were because about jurors saying my thoughts
this were so strong.”
In her State, affidavit for the she stated: about prepared “Hearing
the murder of Bessie Lawrence did a have effect on me. I great
still listened to all the evidence but the could not out- mitigators of his old
weigh aggravator Trilling lady.” Seawood’sinitial affidavit shows that after
Kleypas suggests juror
she heard evidence of the homicide she had in essence de- prior
cided the case all the evidence. He contends that prior hearing
therefore Seawood was not an and a death sentence impartial juror a a where member is not denies him due by
imposed
jury
impartial
law,
State
248 Kan.
process citing Cady, “ a a overheard recess ‘[tjhat Cady, juror during saying, ”
son-of-a-bitch is as hell.’ 248 Kan. 749-50. The [Cady] guilty
remark was overheard a detective who it to the reported pros-
ecution; however, the never to it the defense prosecution reported
counsel. While to a trial noting right guarantees
defendant a fair trial an indifferent the court also impartial, jury,
stated: Fourteenth Amendment’s “[T]he of due not a does that guaranty process require case, of the juror facts and issues involved
prospective totally ignorant and the mere existence on his or her of a notion as part preconceived guilt more, is, insufficient to rebut the without of the accused presump- or innocence and an or render if he she can aside opinion lay impression
tion impartiality at 755. in court.” 248 Kan. on the evidence a verdict based presented s court not consider whether did opin- juror preconceived re- misconduct violated due because
ion process prosecutorial at 757. a new trial. 248 Kan.
quired that occurred in statement not Seawood’s type Juror that to all the affidavit stated she “listened her second
Cady, could not
evidence but the outweigh aggravator mitigators a old Instead of
his opin- killing lady.” indicating preconceived affidavits,
ion, read demonstrate weighing together, proper circumstances. She was required aggravating mitigating decision was ad- did all evidence. Her ultimate evaluate basis for his claims of denial
verse to but no provides
due process. Advising Death That Vote For Garrison Other
F. furors furor Would Get Death
Would Not Mean Kleypas defense, her affidavit for the Garrett stated in “[a]nother Juror because officer, told the jury just
juror, repeatedly police would death, did mean that Mr.
a vote was for the State death.” in her affidavit for She clarified by stating:
get affidavit, officer, ‘Another “When I said in 4 in first juror, police my paragraph death, vote that did not mean because a was for told the just
repeatedly *67 death,’ meant, what I think I had would what I originally that Mr. get Kleypas said, a vote was for told the because was that the officer just capital police not that Mr. would in the that did mean automatically murder first phase, death in second the phase.” get Garrett the trial court erred not juror recalling
Kleypas argues contends it her He between affidavits.
to resolve the discrepancy were made whether her comments critical to determine
is during was to minimize the effect gravity guilt phase, penalty Caldwell v. was
of the decision Mississippi, making, citing (1985), 320, 328-29, S. Ct. 2633 U.S. 86 L. Ed. 2d was held that it which United States Court
in imper- Supreme that the for the State to
missible closing responsibility argue of the defendant’s death sentence lies
determining appropriateness
elsewhere than with the jury. claim,
The trial court did not address this la- specifically again all of the issues Garrison’s of her consultation
beling except juror
handbook as the mental being processes jury. question
is trial court abused its whether the discretion to recall by refusing Garrett. Even if we were to affidavit, consider the we note
juror
that Garrett’s second affidavit clarified her affidavit and original court
hold that the trial did not abuse its discretion. considered all miscon-
Having Kleypas’ allegations juror
duct, we find that the trial court did not abuse its discretion to recall other than Garrison and in con-
failing jurors ultimately motion for new trial based on miscon-
cluding Kleypas’ juror
duct should be denied. Sufficiency Penalty
Issue 15. of Notice to Seek the Death and Fail- Ruling
ure Provide Pretrial on Whether Sufficient Evidence Aggravating
Existed Circumstances Support the State’s notice of intent to seek the death argues did insufficient where it not notice of provide any ag- circumstances or evidence the State would He
gravating rely upon. furthermore, that when State did file its notice
argues, ag- circumstances, the notice omitted some evidence the
gravating
State contends that when he ultimately presented. Finally, Kleypas circumstances,
objected sufficiency aggravating
trial court refused rule the motion until after the guilt phase
of trial. this violated his due According Kleypas, process rights. Sufficiency
A. of Notice statute, 21-4624,
The notice K.S.A. states in relevant part: “(a) murder, If a defendant with or district charged capital attorney county intends,
shall written notice such conviction attorney upon defendant, file if to determine whether request separate proceeding sentencing defendant should be sentenced death. Such notice shall be with the court and served filed on the or the not later than attorney time days defendant’s defendant five after subsection, If such notice is not filed served as arraignment. required by of the or district such county attorney may request sentencing proceeding *68 murder, defendant, be sentenced of shall otherwise if convicted capital law, be sentence of death shall hereunder. and no imposed provided “(c) evidence be In the proceeding, may presented concerning any sentencing of sentence and shall include the court deems relevant matter that question of the circumstances enumerated K.S.A.21- matters any aggravating relating evi- thereto and circumstances. such
4625 and amendments Any mitigating be deems to have value received dence which the court probative may regardless evidence, of is under rules defendant of its admissibility provided statements. such evidence a to rebut any hearsay accorded fair Only opportunity as the state has made known circumstances prior aggravating defendant of admissible, be vi- shall and no evidence secured in to the sentencing proceeding of United States or constitution of state of Kansas shall
olation of the added.) admissible.” (Emphasis 17,1996, State filed the
On October day arraignment, notice:
following Stovall, General, “The of Kansas Carla State through Attorney J. John General, Bork, K. At- Crawford K. Assistant Attorney Barry Disney, County intention, the Court and the defendant of the State’s notice to
torney, give upon defendant, to de- of the conviction request separate sentencing proceeding defendant should be sentenced death.” termine whether the to bar the State from death filed a motion seeking notice based on the and defective omission inadequate circumstances the State intended to rely aggravating upon death The trial court denied the motion after
seeking penalty. reasoned the statute was clear The trial court and gave hearing. circumstances be listed or that the must
no indication aggravating The notice of intent to seek the death with the
included penalty. State must its cir- ruled the file
trial court statutory aggravating time of trial so that the defendant within reasonable
cumstances
has sufficient time accordingly. prepare circumstances on The State filed notice aggravating Jan- trial 1997. 1997. July began
uary guilt-phase Therefore, of K.S.A. involves 21-4624.
The issue interpretation is as follows:
our standard
review
law,
State
of a statute
and our review is unlimited.
“Interpretation
question
865, 874,
Robinson,
stat-
strictly
However,
decided
to
is
in favor
the criminal statute.
anyone
meaning
subjected
this
rule is subordinate to the rule
must be
judicial
reasonable
interpretation
Roderick,
and sensible to effect
and intent. State v.
259 Kan.
legislative design
(1996).”
Lewis,
107, 110,
843, 847,
911
State
P.2d 159
v.
263 Kan.
more notice than the that the State intended to seek the cursory instead
death and that notice must be sufficient to allow a to
defendant face the death He contends that penalty proceedings.
K.S.A. for 21-4624 one notice and that provides only nothing statute for later second notice which would contain provides circumstances. In contention, his he aggravating support Gideon,
cites State v.
257 Kan.
In the State at notice of the presented arraignment ag- Gideon, circumstances which it would however,
gravating rely. that the was State to notice of the evidence
argued required give
it would at the present sentencing proceeding, just aggra- found circumstances. We that the State’s
vating presentation sufficient, circumstances was that K.S.A. 1993
aggravating noting 21-4624(1), at that which time addressed the notice
Supp. require- sentence,
ment the hard 40 for “does not detail what imposition
information must be contained in the notice.” 257 at Kan. 601. We
also concluded that circumstances presentation aggravating
before was trial sufficient under the facts to advise Gideon as to
what evidence would be
Contrary argument, Kleypas’ opinion
stand for die that K.S.A. 21-4624 the State to proposition requires notice of the circumstances at the time of ar-
present aggravating Rather, Gideon, we held it was sufficient for the
raignment.
State to do so at that time that no further notice regarding 257
evidence Kan. at 600-01. required. Timmons, cites State also Super. N.J. (1983),
A.2d for the that notice of fac proposition aggravating Timmons,
tors at In the State failed to arraignment required. court at factors by arraignment required aggravating
present error and the State from The court found
rule. precluded at disclosed. 192 149. factors not Super. alleging aggravating N.J. so the court stated: holding, defendant, 3:13-4(a) at an “R. arraignment, requires prosecutor give at the he or she intends sen- factors which prove
itemization of aggravating factors must also be such aggravating tencing hearing. Discovery pertaining so is cause unless the time do disclosed enlarged good arraignment, is revealed in the court. for this commentary The purpose requirement states, rule, serve to avoid needless often oc- which ‘This would delays practice in a fashion. Such casioned the failure to discovery timely practice provide *70 to and the fo increased time investigate analyze
has added fully advantage allowing be said to in a case.’ and circumstances the present given aggravating mitigating omitted.] [Citation via the rule is “The additional time for provided vitally important investigation because, ‘. . death .the of
for the defendant. This is so
penalty
qualitatively
Death,
its
a
of
however
different from sentence
long.
finality,
imprisonment,
a
from
than 100
term differs
one
differs more from life
year prison
imprisonment
difference, there is a
a
two.
of
of
to
Because
that
correspond
only year
qualitative
death is
in the determination that
the
difference in the need for reliability
ing
Carolina,
428
a
case.’ Woodson North
U.S.
in specific
appropriate punishment
280, 305,
This distinction cannot
S. Ct.
be Super. N.J. several considerations for went on to recite
The Timmons court time, (1) this extra need
which defendant including: might counsel, (2) tactical decision about the of
retention or appointment motion, (3) for the of the case preparation
handling pretrial bail, (5) (4) for plea bargaining. phase, eligibility
penalty at 145-46. Super.
N.J. New that lead the courts While the considerations Jersey policy of factors notice
to a court rule aggravating requiring adopt valid, we have no such of are
time certainly adopted arraignment but it line rule in Kansas. Such
rule might helpful bright of K.S.A. 21- that it is
cannot be said language required Rather, State file notice of
4624. statute only requires 21-4624(a). at that time. K.S.A. to seek death
its intent penalty his or her defendant notice is sufficient allow
This begin case indeed be notice that the will trial as it serves
preparation case, make choices thus the defendant
a death regard- allowing counsel, retention
ing plea bargaining, preparation Timmons, circumstances. See at 145- mitigating Super. N.J.
46.
We, therefore, 21-4624, hold K.S.A. that under State is only notice it intends to seek the death
required provide conviction for murder. State at that time
upon may capital notice of the circumstances which it will
provide aggravating but State is not to do so as as it
rely required long provides
such notice within reasonable time to trial to allow the prior
defendant an to defend against opportunity prepare aggra- circumstances.
vating
Here, State filed notice circumstances 6 aggravating
months before trial. was aware of one likely aggravating
circumstance —his murder conviction. Under the circum- prior
stances, due were not violated. Kleypas’ process rights
As his the notice part argument regarding requirement 21-4624,
K.S.A. also contends that the list prosecution’s
the evidence which it would offer lacked notice of some of the
evidence behind ultimately presented, specifically, footprints
Bessie Lawrence’s house However, led home. K.S.A. Kleypas’
21-4624 does the State to fist the evidence it will require pres-
ent with to the circumstances as the regard aggravating long
State has made this evidence known to the defense prior *71 21-4624(c); Gideon, See K.S.A. 257 Kan.
sentencing proceeding.
at 600-01. Ruling Sufficiency Aggravating
B. Pretrial on of Circumstances contends he had a to a of determination right judicial
whether there some for the basis existence of the aggravating or, words,
circumstances in other cause before the probable guilt even a filed motion the suffi-
phase began. challenging of circumstances; some of the however, the trial
ciency aggravating
court to refused rule on the motion until the conclusion of the guilt
phase. The State filed notice of five circumstances on aggravating Jan- 3, 1997. Prior to trial, commencement of the
uary penalty phase court dismissed one and the trial State dismissed aggravator
another, circumstances. three leaving aggravating motions trial court’s failure to rule on his
Kleypas argues the Due Process of law. He contends him due process
deprived Con- to the Unites States the Fourteenth Amendment
Clause of to a the death defendant
stitution penalty subject requires be first be notice that
must may given imposed penalty to before a fair contest the
then imposition given opportunity New court to California and He follow
it urges pronounced. decision and find some review of the judicial prosecutor’s
Jersey order, to
to seek the death
trial would be
citing
penalty prior
(1984),
v.
and Ghent
App. is a can a death
there homicide qualified prosecutor impanel a list of for the the trial merely filing aggra- guilt phase circumstances, that a defend- even none He if exist.
vating argues non-death
ant has a interest in normal having qualified significant the defendant an is lost if the court denies interest which trial
jury, circumstances. hearing ruling challenges aggravating an indictment State of New McCrary, Jersey brought murder, with or knowing aggravated
charging McCraiy purposeful
assault, of a fire- of a unlawful handgun, possession possession New Under
arm with a to use the unlawfully. purpose weapon law, faced the death purposeful
Jersey McCrary one or more murder if statutorily aggravating
knowing specified and not one or more
factors were shown mitigating outweighed by defend- The New Code the State
factors. give Jersey required “ factors intended to ant notice it prove ‘[p]rior aggravating or at such commencement sentencing proceeding, fac- an time as he has of the existence of aggravating knowledge ” notification, State . tor . . .’ at 135. At time N.J. ” “ on’ ‘all
was also ag- discovery bearing required provide factors. 97 at 138.
gravating N.J. factors, trial, moved strike Before McCrary aggravating Over the evidence. the factors were
alleging totally unsupported *72 on the suf- court ordered a
the State’s trial hearing objection,
982 factors. The State a filed motion
ficiency proof aggravating
for leave to from the order. The New court appeal Jersey granted
review on the limited issue of whether the New Code Jersey per-
mitted review of factors to trial on the judicial aggravating prior and, so, basis
factual of the factors if that could type hearing
be conducted. The New court made clear it that was not Jersey constitutional or not issues before
addressing any statutory squarely at
the court. 138. N.J. First, on the issue of the New court stated: jurisdiction, Jersey a case, “When criminal takes on the character of a the ex- proceeding capital tenable, ercise of such is not it authority [jurisdictional] is only absolutely imper- ative to ensure fundamental to a fairness defendant. There is a dis- qualitative difference, tinction between death and ‘Because of that imprisonment. qualitative a there is difference in the need for corresponding the determination reliability that death is the ain Woodson North case.’ appropriate punishment specific Carolina, 428 U.S. A to this distinction mili- healthy sensitiviiy a tates defendant the unwarranted of the against prejudicing injection possi- of death sentence in homicide
bility at 139-40. proceeding.” N.J.
Next, the court stated that the fact that the did not legislature such did not mean the branch was
provide remedy judicial
limited in within remedies fashioning denying boundary The court noted the
legislative expression. particularly appropri-
ateness of in view of the of the judicial oversight significance pros- notice,
ecutor’s which alone transforms a homicide case into cap-
ital The New Code no cause proceeding. Jersey requires probable
determination of whether a homicide case should aas proceed case. The notice acts as the for both the
capital prosecutor’s trigger
death and the qualification separate sentencing phase.
Therefore, “[s]ome to ensure at the judicial oversight required least that the
very proceeding contemplated by prosecutor’s
notice be set in motion without cause.” justifiable N.J. 140. discretion, the New court ac-
Addressing prosecutorial Jersey the broad
knowledged discretionary powers presumption in the conduct of the minimal
validity prosecutor only sought
intrusion into area. a balance between Accordingly, striking defendant, discretion and fairness to the court
prosecutorial
983 a of indictments: standard for dismissal the pre- following adopted a defendant in favor of die charges challenging requiring
sumption to the evidence is
to demonstrate clearly lacking support 97 at 142.
charges. N.J. stressed that trial court discretion in New court grant- Jersey the be limited to motions a should alleging aggravating hearing
ing noted of an without The court
factors are striking plainly support. would be If later factor without prejudice. supporting
aggravating came to before commencement
evidence sentencing light defendant, a could notice sentencing phase upon
phase it California case law 97 at 144-45. found Although
proceed. N.J. California law evidence because required distinguishable of a death be circumstances” penalty justifying imposition
“special the in grand jury, accusatoiy pleadings presented
alleged with review
New court noted limited Jersey provided approval Matulewicz, at 145. also State v.
for in Ghent. 97 See N.J. N.J. Ghent, (1989) In A.2d McCrary). (following evidence allowed review of the
court pretrial supporting special to death 153 Cal.
circumstances Rptr. required impose penalty.
at 726-27. is not and Ghent stand for that it
Both McCrary proposition However, a to factors. to allow
error challenge aggravating pretrial a no determination authority holding provides pretrial
Kleypas circum- there is sufficient evidence of
of whether aggravating trial is
stances to constitutionally justify separate phase penalty We favor of do not find the reasoning McCrary
required. be Kansas has a such a determination to
conducting persuasive. and, therefore, deter- an initial murder charge capital
specific of whether a case should as offense.
mination proceed capital to the death
New defendant may subject Jersey, of an murder after the State notice aggra- provides
any purposeful case no before the and there is check factor
vating prosecutorial nature of this case. Due system,
proceeds capital-murder was re- court held that some
the New judicial oversight Jersey New between Kansas and Based on the marked difference
quired. law, we such a are not to fashion remedy judicial required
Jersey We that the trial defendants. hold
in order rights protect allow
court did not err in the suf- failing challenge circumstances
ficiency aggravating prior guilt phase
of the trial. Competency
Issue 16. to Stand Trial filed two motions that he was alleging incompetent
stand Both denied trial. were court after He con- hearing.
tends that the trial court abused its discretion in both mo- denying
tions.
Our both standard of review on motions is of one abuse of dis-
cretion. when, defendant to “A criminal is stand trial a because of incompetent mental defect,
illness or
the
is unable to
defendant
understand the nature and purpose
the
him or her or where he
is
or she
to
unable make
proceedings against
a
assist in
K.S.A. 22-3301.
defense.
On
a
court’s
making
appeal,
reviewing
inquiry
a
the decision
district court that a
is
defendant
to
regarding
stand
competent
Beckham,
is
trial whether the trial court abused its discretion.
State
255 Kan.
310, 325,
(1994).
person
by
could
adopted
persons
court,
differ as to the
of the action taken
the trial
then it cannot be
propriety
by
O’Neal,
909, 911,
said
the
court
its
trial
abused
discretion. State v.
256 Kan.
(1995).”
Barnes,
249, 263,
P.2d
128
State v.
263 Kan.
Kleypas apply
idence but that the burden of at the first was argues proof hearing the State because the trial court ordered his
upon competency
evaluation on its He Cellier, own motion. cites State v. 263 Kan.
54, 70, (1997): P.2d “The obvious rule that a who raises the issue of party to stand competence trial evidence, has burden of forward with the which will be measured going of the evidence standard. When the court preponderance itself raises the issue, the court is not a and cannot be for competency party responsible coming evidence, forward with but it can that burden to the State because assign both court and the State a to due have and a duty provide fair process provide trial to an accused.”
However, it is clear that while the trial court Lamed appointed (Larned
State to evaluate it Security Hospital Hospital) Kleypas, so
did after the defense counsel filed a motion only raising
issue of who raises the issue of incompetency. party compe- evaluation, is the bur- not the one who orders assigned
tency, the trial court first ex-
den When hearing, opening proof. a the Court ordered that stated: month ago “Approximately
plicitly motion determined
the defendant’s pursuant competency State he was sent Larned Accordingly,
filed defendant. evaluation.” for (Emphasis Security Hospital competency contention, of our standard of
added.) his Contrary application on
review the burden proof Kleypas. properly places
A. First Motion 7, 1997,
On March filed notice incompetency Kleypas notice was affidavit
stand trial. Attached signed by an. behavior. Also attached
defense counsel attesting Kleypas’ at- an affidavit of Dr. neuropharmacologist, Lipman, Jonathan an evaluation of to his after
testing findings June observations of Gerald to his Dr. Gentry, attesting attachment was 1977 re- 1996. The final
August September Snow, and written conducted from Dr. Emasue apparently
port of Bessie Lawrence. the murder trial
for defense in Kleypas’ 11, 1997. Dr. Ekkehard
The trial court held hearing April Fernando, defense, and Dr. of Lamed Othmer testified J.L. *75 Dr. Fernando testified that testified for State. Kley-
Hospital, and that it was “not even was to stand trial
pas clearly competent did Lamed not
a close call.” Dr. Fernando testified that Hospital because such extensive on testing Kleypas
perform comprehensive cases or is
evaluation reserved for marginal competency usually of mental disease is the existence
where it determine necessary defense, which was
or defect as for a insanity required potential was aware of case noted that
not the here. Dr. Femando Kleypas and the him
the serious nature of the against potential charges Fernando’s that It was Dr. of the opinion charges.
consequences his as demonstrated be work with would able attorneys
Kleypas consent form a of information
when refused release sign Kleypas Dr. Femando testified that
without first his consulting lawyers. and there was no evi- were organized
Kleypas’ thought processes
dence of visual hallucinations or stay during Kleypas’ auditory observe evidence did not
Lamed Lamed staff Hospital Hospital. and,
of bizarre behavior unseen stimuli response general,
observed that acted his throughout appropriately stay. rather,
Dr. Othmer did not evaluate he evaluated the Kleypas; of Lamed evaluation. was Dr. It Othmer’s
adequacy Hospital’s that Lamed evaluation was
opinion Hospital’s process inadequate a rehable conclusion to stand provide Kleypas’ competency
trial. He lack criticized the of of thorough psychological testing cases that in where the individual is although
Kleypas, admitting such an evaluation could short-
obviously competent, process
ened. Dr. Othmer also took issue with Lamed assign- Hospital’s a (GAF)
ment of Global Assessment Function of score 40. The
GAF is on a scale of 1 to 100 with rated at 50 computed anyone
or below The GAF measures an individ- requiring hospitalization.
ual’s to relate or interact an with others in ability way. appropriate
Dr. Othmer found score of 40 inconsistent with Dr. Fer- Kleypas’
nando’s that was to stand trial. Dr. opinion competent
Fernando, however, based low GAF score on Kleypas’ prior
murder and his rather than a lack present capital-murder charge,
of contact with reality.
After consideration of the of both re- testimony psychiatrists GAF score and score of 40 un-
garding Kleypas’ concluding
der the facts of this case was not inconsistent with a finding the trial court ruled:
competency, to stand trial is defined of a “Competency defendant understand ability the nature and and to him make or assist in purpose proceedings against Peckham, a defense. State v. 310. Kan. There is making simply nothing in the or the significance exhibits of that militates testimony significance against SSH believes the finding [Lamed defendant is obvi- competency. Hospital] and that is not even a close call. Rather ously competent than presenting evidence that the is defendant counsel attacked have the thor- incompetent, only of the SSH evaluation. Even Dr. did state oughness Othmer defendant rather, is he believes that additional is incompetent, before that necessary testing determination can be made. This evidence. position goes weight evidence on the issue of Ultimately only competency presented, can therefore be evidence weighed, supporting finding competency. “The above-cited Peckham case is instructive as it involved determination of *76 first, base three factors: the lack of evidence of
competency upon incompetency; second, third, as direct of and the court’s ob- expert’s own competency; opinion Peckham, matter, servations. at 325. In the there nois evidence of incom- present of was Dr. on the issue competency the direct opinion only Secondly,
petency. for trial. Dr. Othmer indeed that the defendant is competent opinion Fernando’s Indeed, Dr. Othmer of the of an issue render competency. opinion was unable Third, observations of the de- the defendant. interviewed the Court’s never has of court defendant has re- support finding always The competency. fendant Court, the the defendant answered appropriately posed by questions sponded matter, the sole time has he and die testified this Court appropriately questions never observed conduct or die any has mannerism exhibited inappropriate by Moreover, the defendant held to date in this matter. the many hearings during Test, Court notes the defendant’s to the so-called Sentence responses Completion “C.S.T.,” the form entitled in the section of Defense Exhibit #1. Said Psychiatric
form demonstrates that the defendant has clearly correct of perception matter. comments, “Based the above-referenced all exhibits sub- and upon findings mitted, counsel, of the testimony of competency hearing, arguments finds Court that the defendant understands the nature of purpose him and is able to make or of his assist in defense.
proceedings against making The defendant is found to stand trial. In the absence of accordingly competent evidence to Court finds that the defendant has been unable contrary, to sustain his burden evi- proving incompetency by preponderance Moreover, dence. the Court believes that the is suffi- evidence competency substantial that the Court would ciently enough nevertheless find the defendant to stand trial even were the burden to the State.”
competent placed upon
On raises of the same issues addressed appeal, Kleypas many by
the trial court. Rather than the trial court’s attacking finding of the Lamed
competency, Kleypas complains inadequacy evaluation. The additional ad-
Hospital arguments authority
vanced fail to demonstrate Ac- an discretion. abuse Kleypas under our standard we affirm determi- the trial court’s
cordingly, as
nation first motion. Kleypas’ Motion
B. Second 30,1997, On within 2-1/2 court’s months of the trial initial June trial,
determination to stand Kleypas competent
filed second notice of In addition attacking incompetency. was ex- this notice alleged hearing,
prior competency in- notice or amnesia. memory lapses ongoing periencing a Nease, an affidavit from an attorney cluded Gaye employed Unit. Defense Death the Kansas Penalty
mitigation specialist affidavit, several instances Kley- Nease regarding brought up *77 mental with his to
pas’ communicate processes interfering ability However,
with counsel. not Nease did at the second com- testify
petency hearing. the notice trial court’s that no new provided
Despite opinion tactic, was nature of
information and in the court delaying evaluation to
ordered another performed by competency Wy- (WMHC). Center
andot Mental Health WMHC before to be interviewed refused consulting
Kleypas his was with his
with He allowed consult attorneys, attorneys.
and the was interview rescheduled. refused to co- again Kleypas The with WMHC. trial court held on
operate July hearing Roberts,
1997. The of evidence was that Mark only presented WMHC, at who testified that had refused
psychologist Kleypas he recommended further stan- that
testing testing merely refused to be inter-
dard when someone operating procedure
viewed. The court offered chance to be eval- trial another
uated, but he declined. again
The trial concluded court that in second allegations Kleypas’ of were
notice the same as contained essentially incompetency notice; essence,
the first that was to attack Kleypas, attempting The noted first court the affidavit finding competency.
Nease and that she not for or cross-exami- testimony present
nation. trial court found to be refusal interviewed by Kleypas’
WMHC before he he consulted with his attorneys again suggests
understands the seriousness and does not suggest charges at- As actions further
any incompetency. Kleypas’ precluded his determine view of lack and in
tempt competency
evidence court the trial concluded presented hearing,
it could find trial. to stand only Kleypas competent
After the on the trial court ruled competency against Kleypas
issue, take the defense counsel Wood stated he was prepared amnesia,
witness stand and evidence on provide alleged Kleypas’ titled “No- to an counsel earlier motion filed defense
referring
tice of a Witness of Defense Counsel Becoming Necessity Which Counsel is
Accused Proffer of Material Evidence Witness.” This earlier motion claimed could not
only Williams
recall initial and Detective interrogation by Agent counsel that Williams and Hite told defense that he
Hite or Agent Kansas; that he not the car ride back could
threatened him what Williams rehearsed his
recall attorneys Agent advising confession; on the and that he did covered
would be videotaped ” “ it, and the short of not yes,’ ‘[t]he long question respond “ said, did, I C.W. but instead I’m whether he killed guess *78 ” sure.’ to did not allow Wood that it trial court
The testify, indicating but Wood’s word instead was that even not finding doubting allowed, not amnesia alone would be suffi-
if were the testimony Owens, a State v. to make
cient
finding
incompetency, citing
273,
(1991).
248 Kan. the trial court’s refusal hear from testimony argues
Kleypas counsel on the issue is reversible error.
the defense competency a refusal was due violation as the defense
He claims the process was the best evidence of behavior
counsel’s testimony Kleypas’ countless hours with
since counsel had spent conversing Kleypas. of federal state contends overwhelming weight
Kleypas that defense counsel “must” be
law his argument per- supports at
mitted testify competency hearing. cited the view that an attor authorities
The by Kleypas support However, at a testify hearing. general
ney may competency cases is that not in those attorney’s testimony may
principle and, thus, is where
violate attorney-client privilege permitted the substance confidential communication
it does not reveal any on the observations matters
but instead focuses attorney’s confidential, such as defendant’s behavior demeanor.
are not 246, 249 States, (E.D. 1968); F. Ill. United 282
See Howell v. Supp. 408, 404, & Court In For Puma 150 Ariz. v. Cty.,
Bishop Superior State, 551, (1986); v. 766 S.W.2d 556-57
(Tex. 1989). App. we as a basis for claim of amnesia incompetency,
Regarding
have held: the basis for a defendant incom- should not declaring “Amnesia alone supply is a factor be considered whether to stand trial. Amnesia determining
petent
trial and to obtain
the test of
to stand
is able meet
the defendant
competency
Gilder,
220,
3,
See
State v.
Kan.
990 State, v.
Annot,
544.
of false claims is
46 A.L.R.3d
The danger
great. Fajeriak
795,
(Alaska 1974).
State v. Mc
Amnesia can
520 P.2d
easily
feigned.
Owens,
108,
Clendan,
105,
(1968).”
Ariz.
finding amnesia which his
of significant “hamstrung” ability effectively with defense team. his
communicate was no evidence of
There deficit from Larned Kleypas’memory no evaluation him. indication he had gave
Hospital’s
amnesia for the events the offense. significant constituting Kleypas’ that he refused the second evaluation “con-
suggestion competency to the advice of counsel” is self and not
trary serving supported by
the record. is true
It that the “failure to observe procedures adequate a defendant’s to be tried or convicted while in-
protect right . . . him of his due ato fair
competent deprives process right Missouri, 162,
trial.” 420 U.S. 43 L. Ed. 2d Drope
S. (1975). However, Ct. 896 the court’s failure to allow the defense
counsel to amnesia did not de- testify regarding Kleypas’ alleged of his due used here
prive Kleypas process rights. procedure
was due and the evi- adequate protect Kleypas’ process rights,
dence the trial court’s supported finding competency.
We conclude that case, under the circumstances of this neither
the refusal of the trial court to allow Wood nor the testify finding
that was to stand trial was an abuse of discretion Kleypas competent
on the Peckham, 310, the trial court. State v. 325, 255 Kan. part (1994).
mony, determining
that to stand trial. Wood Kleypas competent Although prof-
fered that suffered from amnesia which affected his ability counsel,
to communicate with evaluation from effectively Kleypas’
Larned showed no such deficit. Under the cir- Hospital memory cumstances, error failure to consider Wood’s testimony
was harmless. Prospective
Issue 17. Removal of Molden for Cause—United furor
States Constitution contends that the trial court erred in removing pro- Molden for cause due to her moral and
spective juror religious dire, voir Molden stated about the death
beliefs During penalty. re- would her from beliefs
that her moral prevent religious a would result in the execution another verdict which
turning However, the defense
human questions posed being. upon
counsel, be for her to return a that it would she indicated possible within her list few
death if the case fell very exceptions. penalty identified, Molden said she were not
These although exceptions The defense
would know at once if the case met her exceptions. of Molden for cause.
counsel did not the removal object matters for cause are left to the
We have held challenges court, a of the trial which is in better
sound discretion position voir dire. A trial
view the demeanor of during jurors prospective for cause will not be disturbed on
court’s ruling challenge amounts to an abuse of unless erroneous or it
appeal clearly Dixon, 776, 788, 811 (1991). P.2d 1153 v. 248 Kan.
discretion. State because the the court abused its discretion
Kleypas argues could return a death for one of that she penalty
juror’s response as a under her
her few rehabilitated juror qualified very exceptions 510, 776, Illinois, Ed. 2d 88 S. Ct. v. 391 U.S. 20 L.
Witherspoon
Witt,
469 U.S.
83 L. Ed. 2d
(1968),
Wainwright
the United States
Supreme chosen it was or recommended
out if imposed voiced cause because veniremen for general they
excluding simply or conscientious or re- death
objections expressed U.S. at 522. Witt clarified its infliction.” 391
ligious against scruples be ex-
the standard for when juror may determining prospective death because of his or her views on the
cluded for cause penalty. be excluded for
The Court stated that juror may prospective where or views on
cause because of his her capital punishment
“the would views substantially impair per- prevent juror’s in accordance with his instructions *80 of his duties a
formance juror ” U.S. at 424. The Court said that “this standard and his oath.’ 469 with ‘un- does that a bias be
likewise
juror’s
proved
require
”
U.S. at 424.
mistakable
clarity.’
and Fourteenth
in the Sixth
Witt decision was
grounded
Amendments jury. right impartial 22-3410(2)(i)
K.S.A. allows to challenge party any prospective for cause when “state of mind with reference
juror juror’s
case or is such that the there court determines parties act to the doubt he can without impartially prejudice
substantial rights any party.” that the facts in case are similar to
Kleypas argues strikingly
those in 481 U.S. L. Ed. 2d Gray Mississippi, State, Farina v. (1987); (Fla.
S. Ct. 2045
1996);
Clark v.
(Tex.
1996). However,
each of the cases relied upon Kleypas, juror, although op- death, stated that she would follow the
posed unequivocally
instructions even it if resulted in the of the death imposition pen- hand, In the case at the State asked whether Molden’s beliefs
alty.
would her to follow the instructions. She substantially impair ability “Yeah,
stated: that, I I would it like Her comments guess yeah.” put this statement cases she where
following regarding special might the death did not rehabilitate her in this
impose regard. from her Molden’s to follow the instruc-
Clearly, testimony, ability
tions would have been whether the case was one of dependent
her few she was standard unable articulate. “very exceptions,” “ Thus, the court’s decision that Molden’s views would prevent duties substantially impair [her] juror performance ”
accordance with instructions and oath’ was not [her] [her] clearly Witt,
erroneous or an abuse of discretion. See
Issue 18. Removal of Five for Cause —Kansas Constitution next about the removal of five argues jurors, prospective Molden, We for cause. have discussed the re-
including already above,
moval of Molden that it was not error under concluding
Witt. that the removal of the other four Kleypas recognizes pro- members, Ash, Watson, Neal, and Tinder also
spective jury may
have been under the standard in Witt. con- permissible
tends, however, that the removal of the five vi- jurors prospective
olated 7 of the Kansas Constitution ofBill which he claims § Rights, broader than First Amendment
provides protection
United States Constitution and should be read to a further provide
993 based to State’s exclude on the limitation jurors power prospective to the death
on their penalty. religious opposition of of Constitution Bill
Section 7 the Kansas Rights provides: shall never to the dictates of conscience God "The according worship right attend or form of be any be nor shall support any compelled infringed; person of be of with the conscience control or interference nor shall rights any
worship; establishment or be law to nor any given religious permitted, any preference or shall be for test mode No required religious property qualification worship. election, trust, for vote at nor shall office of nor any any person any public account of belief.” on religious testify
incompetent an “office of trust” contends equivalent public
Kleypas 21- a K.S.A. which would include office” juror, citing
“public
3110(19)(c) includes a officer” which officer” “judicial (“public 492, 501, Monahan, 72 Kan. 84 a and State
turn includes juror) (“office trust” is (1905)
Pac. equivalent “public public the trial court cannot
office”). maintains Consequently, the office of test of an individual juror. holding religious
require cause on
Thus, theory, excluding juror according Kleypas’ the death or her belief
the basis of his religious concerning penalty test,” of the Kansas
is an violating § impermissible “religious
Constitution Bill of Rights. shall be excluded from
K.S.A. 43-156 “[n]o person provides on courts of Kansas as in the district
service juror grand petit race, sex, or economic color, national
account origin, religion, does Kansas Constitution Bill
status.” Section of the Rights under hmitation than
not already provided provide any greater Neal, Tinder, Watson, Ash, court excused 43-156. The trial
K.S.A. their and follow to be Molden due to their inability impartial death consideration
oath as penalty, jurors regarding cited Further, one of the where jurors religious
religious grounds. did not to the death as a basis for
beliefs religion objecting penalty, formation their beliefs basis for the to be the sole
appear death that his views on the comment Ash’s by juror
exemplified as a result of life experiences.” “developed discretion did not abuse its the trial court
We conclude that Tinder, cause. Ash, Watson, Neal, and Molden for
excusing Sentencing lury
Issue 19. Denial of Separate contends that the trial court erred in his denying request *82 a
for He that he was separate sentencing juiy. argues prejudiced
because the same that heard his also heard the jury guilt phase
penalty phase argument. 21-4624(b)
K.S.A. in cases and governs juries capital provides: 21-4623, thereto, as in K.S.A. 21-4622 provided and amendments “Except murder, court, conviction of defendant of upon of the motion capital upon or district shall conduct a county attorney, separate sentencing proceeding determine whether shall be sentenced to death. The proceeding defendant shall be conducted the trial the trial as soon as judge jury practical. before If who served on the trial is unable to serve on the any person jury jury for the court shall substitute an alternate who has been
sentencing proceeding, juror the trial there are alternate impaneled jury. jurors replace for If insufficient trial who are unable to serve at the jurors the trial sentencing proceeding, judge summon a 12 which shall may special determine the jury persons question of whether a sentence death shall be imposed. Jury selection procedures, qualifi- cations of for jurors grounds exemption in jurors challenge prospective criminal trials shall be selection such at applicable The special jury. jury be waived in the may manner K.S.A. 22- sentencing proceeding provided by 3403 and amendments thereto for waiver of a trial If at the sen- jury. jury waived, has been waived or the trial tencing has been proceeding sen- jury added.) shall be conducted the court.” tencing proceeding (Emphasis
The of the statute undermine express provisions Kleypas’ argu-
ment. We are not other of the liberty interpret provisions
statute to where, here, require separate jury provisions express
of the statute otherwise. provide
The of K.S.A. 21-4624(b) are sound. provisions constitutionally States United Court has Supreme repeatedly upheld legisla
tures’ enactments of or same unitary jury procedures capital McCree, v. 162,
cases. Lockhart 476 180, 137, U.S. 90 L. Ed. 2d (1986); S.
106 Ct. 1758 Florida, 447, 464, v. 468 U.S. 82 Spaziano 340, Ed. 2d (1984);
L.
153, 168, 859, 49 L. Ed. 2d (1976). S. Ct. 2909 Lockhart iden
tified several interests in of a (1) unified The same support jury: for should also have the
jurors responsible deciding guilt respon for the two inter
sibility deciding punishment, questions being
twined; (2) in some cases the defendant benefit from the same may has “residual doubts” if the concerning jury system
jury evidence,- (3) evidence presented during
strength would not have on the bearing penalty phase, having
guilt phase, U.S. at 181. The trial in this case twice. 476
to be judge presented the above some of identified advantages denying
specifically
defendant’s motions. sen- for that the failure separate provide
Kleypas argues untenable unable him in the position being
tencing juiy puts certain cir- as to its bias
voir dire aggravating regarding record,
cumstances, fear of as his such prejudicing prior from and New He cites in the authority Oregon guilt phase. State issue the one he now raises. See a similar involving
Jersey
Pinnell,
(1991);
v. Biegenwald,
N.J.
However,
observed
it must be
311 Or.
that each authority interprets *83 Kansas law. the of
cited is in interpretation controlling 21-4624(b) a for the method defendant
K.S.A. every provides the biased case remove jurors during
capital-murder voir dire is entitled to ask defendant questions during
phase. Here, of the trial
before the sentencing phase begins. Kleypas of effect
chose not to voir dire concerning binding jurors
his circum- conviction murder any aggravating prior a existed as method of However, that
stances. removing procedure Illinois, 504 U.S. cause. See for biased Morgan jurors
potentially (1992). The S. Ct. 2222 L. Ed. 2d provisions dur- who served 21-4624(b)
K.S.A. jurors persons anticipate of the trial: be available for the trial sentencing may phase
ing on the on is unable serve for who served the trial jury “If jury person alternate who has been court shall substitute an juror
sentencing proceeding, insufficient alternate If there are jurors replace for the trial jury. impaneled trial serve proceeding, judge trial who are unable sentencing jurors which shall determine of 12 summon question may special jury persons
whether a sentence of death shall imposed.” 21- of K.S.A. conclude,
We based provision upon express motion court denied
4624(b), that the trial correctly Kleypas’ sentencing jury.
separate Alleged jury
Issue 20. Misconduct Orientation Judicial During contends that comment made the trial court
Kleypas during orientation was error and his ato fair trial.
jury prejudiced right orientation, the were into
During jury prospective jurors separated
two As of its comments before both groups. part opening groups,
the trial court a brief overview of the provided general justice sys- and,
tem and their function. In this over- particular, juries giving
view, circumstances, the trial court stated: “Under certain parties
are to a entitled trial when are not otherwise able to settle jury they
their controversies.”
The next filed a motion for mistrial and dis- morning, Kleypas and/or corrective instruction.
charge panel Kleypas argued within
comment would lead the to believe that it was jury Kleypas’ to “settle the but that he had not done so.
power controversy”
Further, the comment to the that there had been suggested jury
failed his filed. The plea negotiations indicating guilt charges curative stated: instruction “Mr. has an absolute
proffered ato trial under the constitution. The State of Kansas is
right jury for the case to trial as the State
responsible necessity going
has refused to resolve the matter short of a death any attempt
sentence for Mr. In chambers before the start of voir Kleypas.”
dire, motion, court’s, the trial court denied the that it was the stating untoward was to the
opinion nothing conveyed jury by
court’s comments. The fact that offered to opening plead
and the offer refused the State was not known
until this not known to the trial court. The court stated that point
in fact the curative instruction would convey Kley- had offered to and make
pas *84 plea suggestion guilt.
This court orientation comments under the analyzes jury judicial
misconduct standard of Gadelkarim, review. State v. 671, 256 Kan.
676,
(1994).
warrant or of a new it must require granting that affirmatively appear the conduct was of such a nature that it the substantial of the prejudiced rights A mere a from remark of complaining party. possibility is prejudice judge not a sufficient to overturn verdict or aIf and reasonable con- judgment. proper die remark is not will the remark unobjectionable, prejudicial.
struction
render
(1992).”
4, 5,
677. court’s comments were trial contends the prejudicial
Kleypas did not a curative instruction. As this
and mistrial required
occur, trial is warranted. believes a new he argues Kleypas his constitutional as it was
comment right “denigrated” prejudicial was a that there reasonable like- further
to a trial. He argues juiy as an indication that the statement
lihood that the construed settle their con- was for inability parties’ responsible unsuccessful had been
troversies and there negotia- plea implied and, thus, on the defendant’s an
tions
guilt
acknowledgment
485-86,
Miller,
part, those venire members Miller, the trial court dismissed before the court stated: were seated on the who jury, “ in, because if we the fact came I that you want tell appreciate And just you to take a out of as who were we such willing day didn’t have yourselves persons us, we’d never for to come down here to make jury panel get their lives up we we case end nearly And the for try, up handling reality every
juries. of a trial because involved in the of them without necessity people twenty as are to come down here know that citizens such willing yourselves process ” fact, will, in work.’ 259 us we have make for and that system juries up Kan. 485. denied him fair comment
Miller claimed that this impartial from the remark showed no We that Miller
trial. held prejudice context, remark, did not Miller read in
and that the suggest at 486. found no error. Kan.
should have pled guilty, from statement lifted
The trial court’s brief prepared general We conclude that the remarks orientation comments. to,
trial even be inferred nor could referred no way judge remark was case. The to, in Kleypas’ anything specific
referring err court did not The trial and not unobjectionable prejudicial. instruction the corrective suggested Kleypas. give
refusing Peremptory Alleged Strike of
Issue 21. Batson Violation furor
Wheeler strike of that the State’s peremptory prospective argues decision Court the United States Wheeler violated Supreme
juror
998 79, 69,
in Batson v. 476 U.S. 90 L. Ed. 2d 106 S. Ct. Kentucky,
1712 He contends the State struck Wheeler on the
basis of and that the reasons for the gender gender-neutral given
strike—that Wheeler’s roommate was an alcoholic and that
Wheeler had indicated that she was unsure whether the death pen- was a unlawful reasons.
alty necessary punishment —were further Wheeler because of as- her argues striking
sociation (ADA) with an Americans with Act Disabilities disability- individual is in itself a Batson violation and cannot abe
qualified reason. Alcoholism meets the definition of a disa-
gender-neutral Communications, for ADA See Miners v.
bility Cargill purposes.
Inc., 820, (8th 1997); 113 F.3d 823 n.5 Senate Cir. Sergeant Pract., 1102, (Fed.
Arms v. Senate Fair 95 F.3d 1105 Cir. Emp.
1996).
It is Batson whether to ADA disabilities. questionable applies 422,
See U. S. v. (9th 1995). 58 F.3d 423 Cir. Santiago-Martinez, the Ninth Circuit Court of held that Santiago-Martinez, Appeals strike based on did not violate Batson even peremptory obesity was a theof ADA.
though obesity recognized disability purposes
The Ninth Circuit limited Batson protection beyond gender
and race to those classes to which
under the
heightened scrutiny
Protection Clause would
Equal apply. Circuit noted Ninth that the United States Court
ing, Supreme T.B., 127, 128 v. 89, Alabama ex rel. U.S. 511 L. Ed. 2d J.E.B. S. (1994), Ct. 1419 had stated that . .. “[p]arties may
exercise their
from
remove
the venire
peremptory challenges
. . .
to ‘rational basis’ review.”
any group subject
See
are thus to rational basis review. See Mitchell v. Com subject only
missioner Admin., the Social Sec. (4th 182 F.3d Cir. 1999); Pontiac, (6th Gazette 41 F.3d Cir. City of
1994).
Because alcoholism is to a rational basis review un- subject only Clause,
der the Protection Batson does not strikes Equal prohibit
based on alcoholism and
in this
fails.
Kleypas’ argument
respect
*86
Edwards,
177,
192-94,
In State 264 Kan. of Batson and its we the
(1998), summarized progeny requirements
as follows: Batson, Court set out a the United States framework “In Supreme designed of the basis of race. Under the the exclusion on jurors discriminatory
prevent framework, case that must first make a facie the defendant showing Batson prima Once on the basis of race. has the exercised challenges prosecutor peremptory made, to articulate a the burden shifts to the such has been showing prosecutor The trial court must then determine a race-neutral reason striking juror. the burden of discrimina whether defendant has carried proving purposeful 395, York, 352, 358-59, 114 Ed. 2d 111 See v. New 500 U.S. L. tion. Hernandez S. Ct. 1859 case, the that order to a facie “The Court in Batson found in establish prima or is a a racial must first show that he she member of defendant cognizable group to remove from that the has exercised peremptory challenges prosecution Batson,
venire members of the defendant’s race.
is entitled on the fact constitute rely jury peremptory challenges are a to do so. The de- those who of mind discriminate permits practice circumstances raise an must show that these facts and other relevant fendant any from the that the used that to exclude jurors inference practice jury prosecutor at account of their race. 476 U.S. 96. on set of circumstances in “This framework has been extended the initial beyond 411, Ohio, S. Ct. 1364
Batson. In Powers v. 499 U.S. 113 L. Ed. 2d (1991), the Court that the Batson framework United States determined Supreme a extended to a white defendant use peremp challenge by prosecutor’s race. In strikes to exclude black on the basis of jurors reaching tory prospective conclusion, Clause the Court determined Protection prohibits Equal and unbiased use of to exclude otherwise qualified peremptory challenges that a reason of their race and defendant from the jury panel solely by
persons
Fur
based doing, gender. on the in selection Protection Clause discrimination prohibits Equal ‘[T]he be biased in on that an individual will par- basis of tire assumption gender, be a the fact that the ticular case for no reason other than person happens race, As with “core equal pro-
woman or to be man. guarantee happens ., tection, . . would citizens that their State will not discriminate ensuring such the basis of we to the exclusion of jurors meaningless-were approve omitted.].’ which arise from the [Citation [gender].”
assumptions, solely jurors’ 511 U.S. 146. for the establishment have aprima “These changed requirements rulings she is a member establish that he or case. The defendant need no
facie
longer
since die focus is now on the individual
minority
cognizable
group
rights
juiy
Ohio,
members
to be excluded on die basis
of race or sex. See Powers v.
415;
T.B.,
Thus,
U.S. at
v. Alabama ex rel.
has exercised to remove from the venire members of challenges peremptoiy
certain race or and that these facts and other relevant gender circumstances an
raise
inference that the
used that
to exclude die
from
prosecutor
practice
jurors
Batson,
on account of their race or
that she was unsure whether the death was an penalty appropriate was insufficient. When asked on the society,
punishment juror if death was a
questionnaire necessary punishment
our Wheeler had Later, dire, marked “unsure.” on voir society,
Wheeler indicated that she could a sentence of an death in impose case. contends that other whom the
appropriate Kleypas jurors
State did not strike demonstrated aversion to the death greater
penalty.
The ultimate with whether Batson violation question regard
existed is whether the State has discriminated. State purposefully Walston, 372, 381,
v.
256 Kan.
(1994).
jected against gender. Wheeler, the fact that the woman, State struck due to her
tainly,
aversion to the death while male penalty, leaving jurors prospective
who also indicated such an aversion is circumstantial evidence of
discrimination. See
However,
Walston
fendant failed to show at the Batson that similar hearing prospec-
tive male were Therefore, not struck. the trial court did not jurors
err in that there was no discrimination. finding final with to the strike of Wheeler
Kleypas’ argument regard
that it for the State to use its strike improper peremptoiy
remove Wheeler from the on the basis of her aversion to im However, the death courts
posing penalty. appellate addressing Pitsonbarger
issue have found
such
not to be
See
practice
improper.
(7th Cir.),
v.
(1998);
Dixon,
984
Brown v.
(4th
1989),
denied
(1990);
(S.D.
2000);
Bolton,
290,
Ohio
State v.
302,
182 Ariz.
(1995); King, State, State v. 323, (Miss. 1999); v. 735 So. 2d Bjork-
Manning Clark, 456, State (2000);
lund, 258 Neb.
128 N.M. court did not err in that the trial
We hold allowing peremp- Wheeler. strike of juror
tory prospective in the Guilt Phase Error
Issue 22. Cumulative that each of above errors are independent argues reversal; however, if this court concludes that no single
grounds all then the cumulative effect of the errors reversal
error requires cumulative ‘We have trial errors reversal. recognized
requires reversal of a defendant’s conviction. so require
may great Castoreno, (1994). 401, 411,
See State v. 255 Kan. 874 P.2d is whether the circumstances
The test totality substantially prej a fair trial. 255 Kan. and denied him or her
udiced the defendant
Carr,
625-26,
State v.
265 Kan.
Based analysis by Kleypas upon we conclude that under the totality
regarding guilt phase, circumstances, was not a fair and there denied trial reversal. error sufficient
was no cumulative require Phase —Conclusion
Guilt above, the defendant’s convictions our
Based findings upon af- murder, are burglary attempted rape, aggravated
capital
firmed. ISSUES II —CONSTITUTIONAL
PART the con- raises the issues
We turn now concerning Kansas. These issues include: death in of the
stitutionality Equation
Constitutionality Weighing Avoid Arrest
Constitutional Evidentiary Challenge Circumstance
Aggravating Heinous, to the Definition of the Atro-
Constitutional Challenge Circumstance
cious, or Manner Cruel Aggravating Sentence of
Proportionality for Conviction of
Constitutionality Departure Upward Aggra-
vated Burglary
Instruction on Mercy
Standard for Admission Evidence Phase During Penalty
Effect aof Plea Under K.S.A. 21-4624 Guilty
The to Life Under the Kansas Constitution Right
Failure to Make Written as to Findings Mitigators
Lethal as Cruel and Unusual Punishment Injection
Death Under International Law Penalty Constitutionality
Issue 23. of Weighing Equation that the set forth in K.S.A.
Kleypas argues weighing equation
21-4624(e) violates the state and federal constitutional prohibitions cruel and unusual and the of due
against punishment guarantees because it mandates sentence of death when
process aggravating circumstances found are to be in balance. mitigating equal case,
Under the facts this we that the agree weighing equation
violates the and Fourteenth Amendments to the United Eighth
States Constitution. 21-4624(e)
K.S.A. provides: “If, vote, unanimous finds reasonable juiy beyond doubt one more circumstances enumerated in K.S.A. aggravating 21-4625 and amend- and, further, ments thereto exist that the existence of such circum- aggravating
stances is not circumstances outweighed by which are found to any mitigating exist, death; otherwise, the defendant shall be sentenced to the defendant shall
be sentenced as law.” provided death when and miti-
Kleypas argues mandating aggravating circumstances are found to balance
gating equal produces results,
unrealistic creates a death, shifts the bur- presumption
den of to the defendant of a death proof prevent imposition
sentence, and from effect to the precludes giving mitigat- evidence.
ing of a is a statute of law over which constitutionality question Ponce, court has de novo review. State v. 258 Kan.
907 P.2d We must decide if weighing equation
the statute violates the Amendment to the United States Eighth
Constitution because it mandates sentence of death if the jury
1003 are circumstances that the finds aggravating equi- mitigating a the death sentence if the is result of mandating
poise. Equipoise do not circum- circumstances outweigh aggravating
mitigating
stances. is the Kansas formula contends that unique weighing
Kleypas states death sentence 38 death by
among mandating penalty statute is no other state has iden-
when there Although equipoise. statute, our five states have similar re-
tical language language the same weighing equation.
sulting issue motion filed in the first raised equipoise motion, court. district court denied that
district The finding Court such
the United States statutory Supreme approved Florida, 913, v. U.S. 2d 49 L. Ed.
scheme in Proffitt is mis- (1976).
S. district court’s reliance Ct. 2960 The Proffitt Court noted: Proffitt,
placed. Supreme as as found the defendant “The charged. Subsequently, provided by jury guilty law, was held to determine whether Florida hearing petitioner separate life state law to death or to Under the
should sentenced imprisonment. circumstances surround-
decision turned on whether certain statutory aggravating circumstances found to exist.” statutory crime mitigating outweighed
ing
Justice on all the death is required impose judge sentencing factors as to whom the murderers aggravating statutory
first-degree
(White,
outweigh mitigating is not the same ours. The Florida equation
curring). weighing sentence cannot be a death Florida
Under the weighing equation, does not easts. if there finding equipoise
imposed Proffitt addition, case. In decision in the the district court’s present support verdict, has the and the returns an
the Florida judge advisory the defendant.
ultimate sentencing responsibility constitutional chal cases in of his cites three support 21-4624(e). The first is State to K.S.A. Biegenwald,
lenge in effect at New statute 524 A.2d Jersey N.J. “ or the court finds Tf the crime stated in
the time of the part: one or exists and is not factor outweighed any aggravating factors, defendant to shall sentence the the court
more mitigating *90 ” death.’ at The court 58. considered the weighing equa- N.J.
tion sua it constituted Thé court error. stated: sponte, finding plain “The error function in concerns jury’s factors balancing aggravating against factors, a function leads to its life ultimate or death deci- directly mitigating sion. Its effect was to allow a death sentence without a that the finding aggravating factors factors a reasonable doubt. We hold outweighed mitigating beyond that such a the Act at the time of as a defendant’s trial finding required by of matter fundamental fairness and its absence mandates reversal and retrial result, decision. also mandates this indicated penalty policy Legislative Act; amendments, furthermore, the 1985 amendments to those
by an provide basis for this result.” 106 at 53. independent N.J.
The court it that the made clear former rather than the latter was the basis its for decision: “If in the criminal
ultimately anywhere a doubt,
law defendant is to the entitled benefit of the isit here. a
We therefore that as matter hold of fundamental fairness the jury
must find that factors, factors and aggravating outweigh mitigating
this balance must be found a beyond reasonable doubt.” 106 N.J.
at 62.
(Colo. 1991),
Supreme constitutionality statutory which a return sentence of
weighing equation required jury
death if the found insufficient factors to jury mitigating outweigh factors. The court noted that under this statutory aggravating
formula
death sentence was mandated if the
and
“mitigators
ag-
are
balanced.”
gravators equally
cluded that the statute violated the state constitution provision cruel and unusual
against punishment, stating: “The result of a decision the relevant considerations for and im- against the death in case are in is position that the penalty particular equipoise determine with and that die death is reliability certainty sentence cannot appro- under the standards established priate A statute that legislature. requires a death to in such circumstances without the imposed necessity deliberations, 16-ll-103(2)(b)(III), further as does section at fundamentally odds with die that the a certain and reliable requirement procedure produce conclusion that die death sentence should be That such result is man- imposed. statute dated arrived at rather than adds by jury nothing reliability
the death sentence. The has committed the function of legislature weighing ag- and A determination that such gravators factors are in mitigators jury. means more or less than that the moral evaluation of the de- equipoise nothing aas has character and crime yielded fendant’s expressed process weighing sentence such violates results. A death circumstances inconclusive imposed contra- and is reliability certainty arbitrary capricious requirements stat- we conclude that the basic constitutional
vention of principles. Accordingly, article of cruel and under unusual ute contravenes punishments prohibition Constitution, II, of due Colorado the defendant section deprives II, article section of that constitution.” 814 P.2d 845. of law under process rests state constitutional the decision in Young upon
Although that the United States Court the court found Supreme
grounds, issue,
had not addressed stating: equipoise *91 the a lim- to the United States Court is conclusion that “Key Supreme rulings for the death is the class of constitutionally
itation on
persons eligible
penalty
factor,
a
at
and
be
least one
by
may
accomplished
finding
aggravating
required
is
that a
of all relevant
factors
and
constitutionally required
weighing
mitigating
Walton,
a
death
be
on
individual.
110
before
sentence of
can
imposed
particular
1196;
Ct.
give imposing treated the individual human the sentencer has defendant as ‘uniquely and has made reliable determination that death is the appropriate bein[g]’ ’ ” Woodson, 319, at S. at 2947 492 U.S. 109 Ct. sentence.” (quoting Penry, omitted). 2991) (citation 304, Ct. at 96 S. at 428 U.S. in the is not limited is not assured because Constitutional sufficiency simply and also determine factors it hear consider. The sentencer must the may mitigating factors, factors are Boyde,
whether those by aggravating outweighed mitigating 1083, 1196; or, S. at are suf- S. at 110 Ct. stated 110 Ct. alternatively, Blystone, Walton, S. Ct. at We in to call for 110 3056. find ficient leniency, nothing our casts on Court cases cited that doubt United States Supreme reasoning consti- our own death statute fails satisfy that the Colorado penalty conclusion cases States Court that the United We do not believe Supreme tutional standards. can be death penalty imposed be read to contain suggestion can fairly and considerations be sentencer finds equally when the mitigating aggravating our if we are of federal how- balanced. Even wrong precedent, understanding ever, we hold that to authorize when death imposition aggravators 16-11-103, as does the current version of section equally, mitigators weigh the cruel and under violates fundamental certainty requirements reliability Colorado Constitution.” 814 and due clauses unusual process punishments at 846. P.2d
The third case relied on F. by Kleypas Hulsey Sargent, (E. 1993). D. Ark. At issue in was the Arkansas Hulsey
Supp.
statute a death sentence if circumstances mandating mitigating
did not circumstances. 868 F. outweigh aggravating Supp.
1092. The court noted the such an created: problem equation “If a found the circumstances in mitigating aggravating neither equipoise, other, or, one more than could not come ato conclusion about probative fairly them,
what balance existed between would be they the death obliged impose sentence die since circumstances would be not found to mitigating outweigh that die circumstances the sen- requirement aggravating. aggravating justify death, (and be) tence of which could intended to construed easily probably (satisfied as an of an circum- independent inquiry single finding aggravating stance) would cure created 868 F. presumption equation.” Supp. at 1101. “Here,
The court concluded: it is in the statute that miti- explicit must circumstances and no in-
gating outweigh aggravating saving too,
struction is found. Here the strictures of the and Four- Eighth
teenth Amendments with their of individualized requirements and full consideration of evidence in
sentencing mitigation appear relief.” 868 F. at 1103. require Supp.
The State does not bother to respond attempt distinguish Instead,
the cases cited the State relies by Kleypas. completely Arizona, Walton v. 497 U.S. L. Ed. 2d 110 S. Ct. *92 (1990). Walton,
3047 In the United States Court consid- Supreme ered the of the Arizona statute which constitutionality provided “
that the court a 'shall sentence of death if the court finds impose or
one more of the circumstances enumer- aggravating . .
ated
. and that there are no
circumstances suffi-
mitigating
”
substantial to call for
The that the U.S. Court ad- argues Supreme specifically
dressed this issue in Walton and The rejected Kleypas’ argument.
State’s is on its view that the Arizona statute argument premised
“is from the Kansas statute in this functionally indistinguishable We and find the two statutes
respect.” disagree distinguishable.
The obvious distinction is the used in each statute. The language
Arizona statute does not call a formula in which the weighing circumstances must the circum-
mitigating outweigh aggravating
1007 stances, of the issue before this court. Such a essence the very a in death sentence where results mandating
weighing equation as to the and cir-
the finds mitigating aggravating equipoise
cumstances. noted, Colorado Court in dis-
As the Young Supreme previously in the statute from the Colorado the Arizona language
tinguished that issue of raised
statute and found the was not equipoise
decided Walton. in 814 846. We P.2d agree. in Walton to address
The failure of plurality equipoise his Blackmun in dissent:
noted by Justice Arizona a does not “The explain why may require capital plurality attempt are in a case where circumstances sentence mitigating evenly aggravating Indeed, the does not even that this is the dis-
balanced. acknowledge plurality Instead, it as a offers assertion: ‘So State’s only conclusoiy question. long positive does not lessen the State’s burdens burden method allocating proof this case to offense or in existence element every charged, prove
prove circumstances, a defendant’s constitutional are not violated rights aggravating him the burden of circumstances proving
by placing mitigating sufficiently (Blackmun, 497 U.S. at substantial call for leniency.’ [Citation omitted.]” dissenting).
J., Blackmun, however, addressed the issue:
Justice in circumstances are statute
“If aggravating mitigating equipoise, The that a the trial assertion sen- judge capital punishment.
requires impose such a tence of death be case runs counter to the imposed directly may Eighth that a sentence must rest
Amendment ‘determination requirement capital upon death is in a case.’ v. Woodson North appropriate punishment specific Carolina, U.S., at 305 (plurality opinion). little its “The takes hard-line and makes effort approach ground plurality of its on our Amendment jurisprudence. support position, Eighth holding cases, two v. cites recent very capital Blystone Pennsylvania, only
plurality
U.S.,
(1990) and
on diese statutes those cases misplaced. precedents upheld provided would after a
that the death determination imposed ‘only circumstances in the circumstances outweigh mitigating present aggravating defendant, or are no crime committed that there such particular particular U.S., nor at 305. In neither circumstances.’ Boyde Bly- mitigating Blystone, sentence
stone did the statute when challenged require aggravating capital *93 Those decisions do not factors are balanced. evenly simply speak mitigating statute: whether State
issue
the Arizona
permissibly may place
posed by
upon
defendant the burden of
that a sentence of death is not
capital
demonstrating
(Blackmun,
In Montana v.
261 Mont.
Montana Court considered the Montana statute which Supreme
read: “In whether to sentence of determining death impose imprisonment, court shall take into account and circumstances . . . and aggravating mitigating shall sentence of death if it finds one or more of the circum- impose aggravating stances and finds that there are no circumstances substantial mitigating sufficiently
to call for Code Mont. Ann. 46-18-305 leniency.” §
The Montana Court rationale on the rejected Supreme Young
basis that the Montana was much different from weighing equation
that of Colorado. The court held Montana’s statute “requires of the death if the court finds one or more
imposition circumstances and no circumstances suffi
aggravating mitigating substantial to call for Unlike the Colorado
ciently leniency. provi
sion, it does not death sentence to if the require imposed and factors are 261 Mont.
aggravating mitigating equal weight.”
at 438.
The difference between 21-4624(e) in K.S.A. and language
the Arizona statute is in the amicus curiae Cornell Death expressed brief follows:
Penalty Project face, “On its the Arizona on a different than does provision operates logic 21-4624(e). 21-4624(e),
section Unlike section statute Arizona does not tell the sentencer to death if circumstances are not impose aggravating outweighed Instead, circumstances. it death if‘there are not mit- mitigating only requires circumstances substantial to call for igating sufficiently leniency.’ key Arizona formula the idea of substantial.’ sentencing ‘sufficiently 21-4624(e), “That unlike section does not direct the sentencer to language, if it death finds circumstances are in impose aggravating mitigating equipoise. aIf sentencer in Arizona circumstances were thought aggravating mitigating balanced, he or she could there conclude that were equally reasonably mitigating circumstances substantial to call for or he or she could ‘sufficiently reach leniency,’ conclusion. The law leaves the free to opposite sentencer decide either way. contrast, a Kansas who reached the same conclusion about the juror relative balance between would have one to im- aggravation mitigation only option: fact, death. In under the Arizona scheme sentencer who
pose thought circumstances circumstances couldsiiH aggravating actually outweighed mitigating conclude available circumstances were substantial’ mitigating ‘sufficiently
1009 — — i.e., to ‘call for critical threshold crossed some substantiality they does not have A Kansas juror clearly option.” leniency.’ of K.S.A. 1999 this issue in context court has addressed
This State v. 269 21-4635(c), 40 sentence. In Kan. the hard Spain,
Supp.
54, 60, (2000), we held that statute was not unconsti- 4 621 P.3d the death cases are not it clear that We made
tutional. penalty Likewise, are 40 cases. hard 40 cases not con- in hard
controlling is death. That distinction is reflected the sentence when
trolling in or on our decision is
the State not relying Spain. Spain citing is because the death different from all
not here penalty controlling
other punishments: a is different from sentence of death imprisonment, penalty qualitatively “[T]he Death, than a in its differs more from life
however finality, imprisonment long. a or two. Because of that from one of term differs only year prison 100-year difference, a difference in the need for there is reliability corresponding qualitative case.” is in in determination that death specific appropriate punishment Carolina, 305, 944, 280, 2d 96 Ct. 2978 v. U.S. 49 L. Ed. S. Woodson North 428 Stevens wrote:
Justice (1972), v. U.S. 238 Member the 12 Furman 408 “In since Georgia, every years at least one of this Court has written endorsing joined opinion proposition the death is its and because of irrevocability, penalty qualitatively severity and hence must be by unique different from other accompanied any punishment, to a offense.” it ensure that is given Spaziano justified response safeguards 340, 104 (1984) (Stevens, Florida, 447, 468, Ct. U.S. 82 L. Ed. 2d S. 3154
v. 468 dissenting part).
J., concurring part we said: Spain, addition, cases in hard we that death are reaffirm controlling “In penalty as it two obvious. The death between the penalty
40 cases. The distinction 238, 33 Ed. v. U.S. L. 2d in Furman 408 existed decision Georgia, prior 346, (1972), held to be unconstitutional. The unconstrained 92 S. 2726 Ct. constituted cruel and unusual discretion in the death punish penalty imposing were and Fourteenth Amendments. states ment in violation of the Eighth ‘ ’ ‘ and “make re detailed rationally guidance" required provide “specific ’ of death.” v. 446
viewable the sentence Godfrey Georgia, imposing process Florida, 398, 100 (1980) 420, 428, 64 Ct. 1759 L. Ed. 2d S. U.S. (quoting Proffitt v. 253, 913, [1976], 242, and Woodson v. 96 Ct. 2960 L. Ed. 2d S. 428 U.S. 49 [1976], 944, Carolina, 280, 303, 96 Ct. 2978 49 L. Ed. 2d S. 428 U.S. North 156, v. 251 Kan. 40 sentence. In State Not so with hard Bailey, respectively). (1992), we said: P.2d finality ‘[T]he severity imposition of the death the hurdles the must clear if death penalty, prosecution
is to be
are
than in
area
law.’
other
of criminal
The United
imposed
higher
any
Court,
Estelle,
263, 272,
445 U.S.
States
in Rummel
L. Ed. 2d
Supreme
(1980),
prohibition punishments capital sistance in meted out to Rum- deciding constitutionality punishment ” mel.’ 269 Kan. 59-60.
No issue is more or difficult divisive than to what determining
extent is under the and capital punishment permitted Eighth
Fourteenth Amendments the United States Constitution. We earlier the
determined in this death in and of opinion penalty
itself does constitute cruel and unusual under the punishment Amendment. issue The we with is here whether
Eighth grapple
the of the death under our imposition penalty statutory weighing
formula constitutes cruel and unusual under the punishment Amendment. 21-4624(e) More is K.S.A.
Eighth specifically, ap- an in unconstitutional manner death if the
plied by mandating ag- and circumstances are in
gravating mitigating equipoise? 238,
In v. 309-10, 346, Furman 408 U.S. L. Ed. 2d Georgia,
92 S. 2726 (1972), Ct. the Court held the death Supreme penalty in to be cruel and unusual in vi- imposed Georgia punishment the
olation of 14th and Amendments. The Court Eighth Supreme
did so a one in curiam The rationale of the per paragraph, opinion.
decision to be is found the five which follow separate opinions curiam That some since none of per opinion. poses difficulty
the five concurred in of the other separate opinions any opinions.
Four filed dissents. justices separate The White and Stewart are relied on in sub- opinions Justices Court. Both made it clear that
sequent opinions Supreme
the death is not itself cruel and unusual under penalty Eighth
Amendment. Stewart’s view was that the “the Eighth Justice Fourteenth Amendments cannot tolerate the infliction of a sen-
tence of death under legal systems permit unique penalty
to be so so U.S. at 310 wantonly freakishly imposed.”
(Stewart, White wrote: is no mean- J., “[T]here concurring). Justice basis cases it few in which is
ingful
distinguishing
imposed
(White,
from many
J., concurring). later, Court
Four approved Georgia years Supreme Court’s de- amended in statute as
death response penalty 207, 153, U.S. 49 L.
cision in Furman.
Gregg Georgia,
(1976),
Ed. 2d 96 S. be constitu- death statutes to the amended
Court found penalty Stewart, announced three
tional. That decision justices:
Powell, focused on the The three and Stevens. justices procedure and not the which defendant was death given White and Chief actual Rehnquist punishment. Justice Justices as did in the concurred opinion, judgment by separate Burger Jus- that the must The statute
tice Blackmun. jury Georgia required doubt 1 cir- a reasonable of 10
find statutory beyond aggravating of death. before it can sentence
cumstances impose addition, other is authorized to consider “In aggravat- appropriate is not circumstances. required omitted.] [Citation
ing mitigating order a recommendation circumstance in to make mercy find any mitigating court, omitted], but it must find the trial statutory that is [citation binding 428 U.S. a sentence of death.” before circumstance recommending aggravating at 197.
Stewart went on write: of did: reach a the “No can a do Furman’s jury finding longer Georgia jury then, direction, he or decide whether defendant’s without guidance guilt Instead, circum- attention is directed the should live or die. the specific jury’s Was it in the course another stances of the crime: committed capital felony? or a officer judicial
Was for Was it committed peace it committed upon money? that or a en- a heinous in manner officer? Was it committed in way particularly addition, is focused the attention the lives of jury’s many dangered persons? the he have a who committed crime: Does on the characteristics the person Are there facts about convictions for offenses?
record any special prior capital his that youth, this defendant punishment (e.g., mitigate against imposing capital at the time of emotional state extent with the his of his police, cooperation exists, result, crime). discretion to be still a while some discretion As ‘the so nondis- standards as to clear and exercised controlled by objective produce 612, 834, State, 829, 204 S.E.2d 615 v. 231 Ga. criminatoiy Coley application.’ (1974.)” U.S. at 197-98. 428 decision, invalidated Court the Georgia Supreme
Following in re- in some states statutes death mandatory penalty passed
1012 Carolina, v. Woodson North 428 to Furman. U.S. at 303.
sponse Court concluded that the death sentence Supreme process
must include consideration of the “character and record of the at
individual 428 U.S. 304. In v. offender.” Penry Lynaugh, 316, 106 256, 109 302, (1989), L. Ed. 2d S.
U.S. Ct. 2934 the Court
noted:
Carolina,
“Indeed,
(1976),
clear,
v.
as Woodson North
ment . . . consideration of character and record of the requires individual offender and the circumstances of the a offense as in- particular constitutionally Id., of the of death.’ at dispensable process part inflicting
(plurality opinion).”
The Court further stated:
“Our
have
decisions
reaffirmed
that
subsequent
Amend-
Eighth
Jurek
an
ment mandates
individualized assessment of the
of the death
appropriateness
Ohio,
(1978),
v.
In Lockett
319. O’Connor, in Franklin v. 487 U.S. concurring Lynaugh, Justice
164, 184-85, 101 L. Ed. (1988), 2d 108 S. Ct. wrote: is clear that State “[I]t may constitutionally prevent sentencing body from effect evidence relevant defendant’s giving character background *97 or the that circumstances offense the death In- mitigates against penalty. deed, to have the sentencer consider and relevant ev- right weigh mitigating
idence would be unless sentencer was also to meaningless permitted give effect to its consideration.”
1013 for a of the Court O’Connor In Penry, speaking majority Justice wrote: so as the class of murderers to we clear in subject “But as made Gregg, long narrowed, is a is there no constitutional in infirmity procedure
capital punishment a to based on the evidence intro- that allows recommend mercy mitigating jury 197-199, a at 203. duced defendant. [428 U.S.] “ that must narrow a sentencer’s defined standards ‘In contrast carefully sentence, death limits a State’s to Constitution discretion ability impose a relevant evidence that cause to narrow sentencer’s discretion consider might v. 481 U.S. it to decline to the death sentence.’ Kemp, impose McCleskey (1987) Indeed, it is because the 304 in precisely orginal). punishment (emphasis of that the defendant should be related culpability directly personal and effect to evidence relevant must be allowed to consider give mitigating
jury or the of the offense. Rather to defendant’s character record circumstances an full than the risk of emotional consideration creating response, unguided the death is if die is to evidence essential mitigates against penalty jury give “‘ character, moral to the defendant’s and ‘reasoned response background, ’” Franklin, U.S., (O’Connor, at 184 in crime.’ 487 J., concurring judgment) Brown, U.S., [O’Connor, at 545 In 479 J., concurring]). (quoting California in the determination that death is the order ensure ‘reliability appropriate pun- U.S., case,’ Woodson, at be able to
ishment in 428 must jury specific to a back- consider and effect to evidence relevant defendant’s give mitigating at 327. and of the crime.” 492 U.S. character or circumstances ground its “reasoned that the was unable
Penry argued express mental retarda-
moral to his evidence his response” mitigation an abuse in if death was
tion and childhood determining appro- sentence. The Court agreed, stating:
priate case, it could “In this in the absence instructions informing retardation and effect to evidence mental consider Penry’s give mitigating we conclude and the death abused by declining impose penalty, background its ‘reasoned moral that the was not with vehicle for expressing juiy provided in decision. Our that evidence its reasoning response’ rendering sentencing so we do not a remand for
Lockett thus resentencing Eddings compels which call for the death will be factors may ‘risk that imposed spite U.S., U.S., 605; Lockett, at a less severe Eddings, penalty.’ death, (O’Connor, that risk the choice is between life “When J., concurring). and Four- with the commands of Eighth unacceptable incompatible Lockett, U.S., at 328. at 605.’’492 U.S. teenth Amendments.’ Woodson, wrote: Stewart for the majority speaking Justice *98 “While the of determinations practice prevailing individualizing sentencing gen a reflects rather than constitutional erally enlightened simply policy imperative,
we believe that in cases the fundamental respect capital humanity underlying Amendment, Dulles, U.S., the see at 100 Eighth Trop (plurality opinion), of the character and record of the consideration individual offender and
requires the as a
the circumstances of offense particular constitutionally indispensable part
of the the death. process inflicting penalty death is a different from sentence “[T]he qualitatively imprison- Death,
ment, however in its differs more from life finality, long. imprisonment a from a than term differs one of two. or Because of 100-year only year prison difference,
that there is the difference in need for qualitative corresponding in the determination that death is the
reliability in appropriate punishment (Brennan, case.” S. at 428 U. 304-05 J., specific concurring). we
If are to more than service to the lip give principles espoused Court, the then in K.S.A. 21- Supreme weighing equation
4624 cannot be The Amendment forbids un- approved. Eighth discretion sentence of death. Under our stat-
guided imposing
utes, the discretion is it find the jury guided requiring
existence of one circumstance. That narrows statutory aggravated
the class of those for the death The Court eligible penalty. Supreme
has made it clear that the cannot there. Of process stop equal is the sentencer’s consideration of the cir-
importance mitigating Here,
cumstances. as the fact finder must be discre- given
tion in effect to the circum- considering giving mitigating noted,
stances. As previously Georgia capital sentencing
statutes, not did limit consideration approved Gregg, jury’s Here,
of the circumstances. mitigating weighing equation consideration, limits the it mandates death if
only jury’s aggra- such, circumstances are As it denies
vating mitigating equal.
what Amendment that the is to effect Eighth requires: give circumstance that it finds exist. mitigating 14, 1995,
It is to note March important attorney the statute and recommended in the House general analyzed Ju- Committee the Kansas that the statute
diciary Legislature
amended circumstances mit- require aggravating outweigh circumstances, “Now if are ‘tie’
igating stating: they equal, goes
state. We’re ‘tie’ . . . defense .” proposing goes Unfortunately, recommenda- did not follow attorney general’s legislature
tion. out in Court the New
As Biegenwald, Jersey Supreme pointed function in
there is weighing aggra- similarity jury’s to that of circumstances determining guilt
vating mitigating same. The burden is the of the defendant.
innocence process *99 serious, The outcome as if not more so.
is the same and the much but irrevo- death is in its it is of severity, only unique
penalty the in Court noted
cable. The United States similarity Supreme Florida, v. at U.S. 458-59: 468
Spaziano Court, course, re- that a in “This has many recognized capital proceeding a issue of or innocence. See v. trial the resembles on guilt Bullington spects ‘ 430, “embarrassment,
Missouri, Because the and 451 U.S. 444 expense at of a . . . . . faced the murder ordeal” . defendant penalty phase capital at that faced defendant the . . . are at least to trial by any guilt phase equivalent the concluded the Double Clause bars a criminal Court has that Jeopardy trial/ to a sentencer the efforts the State from persuade making impose repeated States, 184, Id., 445, 355 at Green v. United U.S. 187 death penalty. quoting (1984).” (1957); U.S. 203 v. 467 Arizona Rumsey, a death sentence for cate- cannot mandate any legislature is limited to who is of murder. The defining eligi-
gory legislature limits,
ble, the death It is within constitutional receive penalty. within determine who will
for the guidelines, jury, permissible is not whether the of death
live and who will die. The issue penalty Furman did that
is se cruel and unusual not hold per punishment. se under death cruel unusual
the penalty punishment per as that before the Furman issue, Amendment. Here Eighth
court, used to select which defendant will is whether the process with the basic
receive the irrevocable death “comports penalty at the core of the Amendment.” of human [Eighth]
concept dignity 428 U.S. at 183.
Gregg, 21-4624(e) K.S.A. standard
Is the in weighing unique equation of death is Does it ensure that the justified? provide penalty clear than other area hurdle for the
higher prosecution its “reasoned moral law? Does it allow
criminal jury express does We conclude it circumstances? mitigating
response” for hu- does it with fundamental
not. Nor respect comport Last, Amendment. fundamental fair-
inanity underlying Eighth
ness “tie to the defendant” life when or death requires goes
is issue. We no see 21- K.S.A. way equation weighing
4624(e), which that in doubtful cases must return provides death,
a sentence of is under and Four- permissible Eighth 21-4624(e)
teenth Amendments. We conclude K.S.A. applied case unconstitutional.
Our decision does not that we invalidate K.S.A. 21-4624 require
or the death We 21-4624(e) itself. do not find K.S.A. to be penalty face, rather,
unconstitutional its but we find weighing mandates the death when the
equation impermissibly
finds that the circumstances are in mitigating aggravating equi-
poise. Bet,”
In State v. Motion 64, Picture Entitled “The 219 Kan.
P.2d (1976), the defendant challenged constitutionality
the definition 21-4301(2) of obscene material contained in K.S.A.
(a) (3) 1973, (Weeks). States United Court in Supreme 24,
Miller 413 U.S. 37 L. Ed. 2d 93 S. Ct. California, (1973), revised the test for The definition of ob- obscenity.
scene (Weeks) material in K.S.A. 21-4301 did not conform to the court,
constitutional of however, Miller. The district requirements
found the films to be obscene the broader definition by construing
in our statute to conform to the of the Miller decision. requirement stated, the district court read the Miller standards into
Simply
K.S.A. 21-4301. This court affirmed the district court on appeal,
stating: “This court has on occasions seen fit to construe previous and limit criminal statutes in such a as to way their uphold constitutionality by reading judicial into statutes which otherwise were
requirements overbroad. sort, moreover, “Construction of this was invited the United States Supreme Court in Miller in which the Chief for a said: speaking majority Justice *We do . not hold . . that States . all . . must now enact new stat- obscenity utes. hereafter, Other state as statutes construed heretofore or well existing may (413 24, be 6, 430, 37 [Citation U.S. note L. Ed. S. adequate. 2d 93 Ct. omitted]’
2615.) “The court has itself this course of construction of statutes high adopted judicial 123, Film, noted in United States v. 12 200-Ft. Reels 413 U.S. 37 2d L. Ed. of
1017 500, 2665, 402 U.S. and United States v. 93 S. Ct. Thirty-seven Photographs, 924, 702, 822, 1400, 363, U.S. 29 L. 2d reh. den. 403 Ed. 28 L. 2d 91 S. Ct. Ed. 2221, to federal statutes. S. Ct. with 91 respect statutes, states the courts have held that their “In at least nine other obscenity Miller, of should be construed in not couched in judicially language though in the evade constitutional manner consistent with Miller thereby challenge
future. [Citations omitted.] we to meet constitutional standards
“We realize that to construe the statute of the that we are be the accusation legis- subject invading province may However, when the manifest intention of
lature. after considering legislature 21-4310, area in this of it and our difficulties K.S.A. past regulating passed etseq., statute to we feel limiting present obscenity fully justified construing of the Kansas standards. Such intent legisla- meet constitutional original 219 at ture.” 70-71. 21-4301 construed K.S.A. court then
This “authoritatively” the Miller
(Weeks) test be and held conviction include may
had under the statute. L., 199, 223, 643 P.2d
In In re 231 Kan. Baby Boy Adoption of Holmes, court, said: (1982), for the speaking Justice basic statute there are certain “In prin- examining constitutionality any must be to: which adhered
ciples
“
of a statute is
that the
We start with the
pre-
constitutionality
proposition
sumed;
its
and before the
all
must be resolved in favor of
doubts
validity,
stricken,
statute
the Constitution.
statute
be
it
violates
must clearly appear
may
attack, if
rather than
the statute under
It is the court’s duty
possible,
uphold
a statute
be construed
defeat it. If there is
reasonable
may
constitutionally
way
Nadel,
v.
Comm’rs
that should
done.’ Board Greenwood County
permissible,
469,
1,
(1980).
P.2d 778
228 Kan.
Syl. ¶
“
statute,
face,
in its
valid
its
be unconstitutional
‘A
may
ap
upon
apparently
facts,
set
Flax v.Kansas
circumstances
classifications.’
plication
particular
In State
244 Kan.
district etseq. (Ensley) States Consti- to the United
in violation the Fifth Amendment
tution. The district court held K.S.A. 79-5206 did not (Ensley) and thus absolute did not the use of the immunity
grant prohibit words,
information in for other crimes. In other prosecuting
written, 79-5206 K.S.A. use but not derivative- granted immunity on In re court, use This immunity. Adoption Baby Boy relying Bet,” State v. Motion
L. Picture Entitled “The reversed the
district court:
“This court not
has the
but also the
only
construe
statute
authority,
duty,
such a
manner
it
constitutional
if the same can be done
within
apparent
intent of the
the statute. To
legislature
passing
accomplish
purpose
court
read the
may
into the
re
necessary judicial
statute. In
requirements
Adoption
L.,
199,
13,
(1982);
231 Kan.
210 Kan.
P.2d 705
State v.
200 Kan.
incrimination
the Fifth Amendment of the
provided by
United States Constitu
tion, and the act as so construed is constitutional.”
K.S.A. 21-4624 for a death scheme which provides sentencing
a sentence of death is for certain offenses. in- imposed By simply 21-4624(e) K.S.A.
validating weighing equation construing that if the finds a reasonable doubt that one provide beyond
or more of the circumstances enumerated in K.S.A. aggravating and, further,
21-4625 exists that such circumstance or aggravating
circumstances exist, circumstance found to outweigh any mitigating
the defendant death, shall be sentenced to the intent of the legis-
lature is carried out ain construed, constitutional manner. So we
hold that K.S.A. 21-4624 does not violate the Amendment Eighth cruel and unusual Our
prohibition against punishment. holding that this case be remanded for to reconsider im-
requires of the death
position penalty.
We aside set the death sentence for the reasons set out above
and remand for in accordance with K.S.A. 21-4624 resentencing
as construed herein. *102 of K.S.A. 21-4624 are con- the we hold that
Because provisions court, to it becomes as
stitutional necessary interpreted constitutional additional
address challenges regarding Kleypas’ of Kansas law. murder statutory provisions
capital Evidentiary Challenge to the Avoid 24. Constitutional
Issue Aggravating Circumstance
Arrest stat- two with the Kansas advances arguments regard (1) circumstance: The evidence “avoid arrest”
utory aggravating C.W. in order the that he murdered
does not jury’s finding support after his or a lawful arrest or
to avoid attempt prosecution prevent her, (2) the “avoid arrest” circumstance aggravating rape as as Kansas Con- States Constitution well the
violates United class of because it fails narrow the
stitution eligible persons
the death penalty. 21-4624(e) that circumstances out-
K.S.A. requires aggravating a reasonable doubt.
lined in K.S.A. 21-4625 beyond proven 21-4625(5) identifies the circum-
K.S.A. following aggravating or order to avoid “The defendant committed the crime in
stance: or The on a lawful arrest standard review prosecution.”
prevent as to the of evidence an sufficiency regarding aggravating
appeal whether, evidence, after review of all the viewed
circumstance is court most favorable to the
in the prosecution, appellate light exis- a rational factfinder could have found the
is convinced that circumstance a reasonable doubt.
tence of the
beyond
aggravating
Evans,
132, 135-36,
See 251 Kan. State Argument
A. State’s Evidence and The the State statement its during penalty phase, opening in it murdered C.W. die that would
informed prove to avoid arrest and
order prosecution. to consider the confession the defendant remember he says “I will ask you chair, bed, is tied to the the defendant stated
he was [C.W.] sitting him, lived in the house and knew knew him the who big green guy [C.W.] live she tell the So knew that if he let could defendant police. [C.W.] he to avoid arrest and made a choice and made choice defendant prosecution.” statement, State
In its argued: closing State
“The in this case has three circumstances a rea- proven aggravating beyond
sonable doubt. One these is defendant committed the crime order arrest avoid lawful And remember the evidence on this. prosecution. you defendant house home going undisguised, [C.W.] going and, fact, did who was sure to him. neighbor recognize *103 “Remember defendant’s own words about knew She me. being recognized. I knew she me. didn’t me knew She but she who recognize personally recognized I She a was. made comment to about me in house I live in. She living only lived two houses down me. These were from the defendant’s about words being he and knew when he went there he would be He also
recognized recognized. knew that he after to her that he and walked he attempted rape would got up away be arrested and prosecuted. he a
“So made choice and he killed to avoid that. sat [C.W.] He there several minutes as he told when he made his choice. And his choice was to kill you [C.W.] so he that would have a better chance of He started her away. getting tying up and he us sat then told he on the bed and about it. And he made that thought so choice little bit he could lawful arrest and just longer prevent prose- And cution. the evidence of this is clear not the defendant’s own by actions only and words and what he to did but what [C.W.] he did only night truck, afterwards. He loaded his evidence of the murder with up him taking off,
he fled town. He took he ran and he killed so that he could avoid [C.W.] arrest. There nois other conclusion that can be reached from this evidence.” did not to these comments or address the object
Kleypas aggra- in
vators his opening arguments closing during
phase. contends there are two of evidence offered
Kleypas only pieces to the State the avoid (1) arrest factor: support aggravating
victim knew (2) could him to Kleypas identify police, Kley- left the however, state after the crime.
pas committing Kleypas,
mischaracterizes the State’s evidence.
The State relied on of KBI Williams heavily testimony Agent
which recalled confession ride car Kleypas’ during patrol it,
back to Kansas. In related the events which Kleypas following
occurred of the murder. once inside the night Kleypas,
house, forced C.W. her bedroom knife He forced her point.
to undress and to have intercourse with her. When he attempted erection,
failed an he his her with He get penetrated fingers.
allowed her to dress. C.W. asked him leave. said he She if would
leave she would him a head start before she called give police. who lived in the as the man him
He said she green recognized the street.
house down Williams, tied confessed that he Kleypas Agent
According started to and that she
C.W. to chair panic. Kleypas unplugged her, time the bed for a he sat on After he tied period phone. her action. She loose from about his next binding got
thinking her chair, her. He tried to suffocate and he tried strangle then stated that he was unsuccessful. the sock but
with Kleypas the chest. her
stabbed repeatedly Identify Could that the Victim
B. Evidence knew statement that the victim that the argues “simple over- constitutes such confession
him” in his "‘hardly provided asserts that murder.” He also of his motive for
whelming proof murder no than in the State’s evidence was
“the "average’ stronger her have
case —the victim could description given police
attacker.” *104 fact that the mere law for the cites Florida proposition
Kleypas more, defendant, without
the victim knew and could identify a rea- the avoid arrest
is insufficient
beyond
aggravator
prove
Florida,
1992),
v.
(Fla.
doubt. Geralds
sonable victim’s house. He
the defendant was a remodeling carpenter was found beaten after the victim
was convicted of murder capital Court Florida house robbed. The
and stabbed and the Supreme the sentence vacated and remanded conviction but
upheld ex- of Geralds’ introduction
based on the prosecutor’s improper at So. 2d 601
tensive criminal phase. history during at of the district court
1161-62. For the benefit resentencing, Court stated:
Florida Supreme “Likewise, the existence that the State has failed we with Geralds prove agree doubt. a reasonable of witness elimination circumstance beyond aggravating as The trial court found follows: the victim’s that the had worked around establishes defendant ‘The evidence victim, her children. The the victim’s home and was known spouse and her with the victim that the defendant had evidence established spoken out infor- and at that time two week the murder children the sought prior fact' that the victim’s and the time schedule mation the family’s concerning The was committed. town on the date the crime husband would be out of
1022
evidence is clear to establish that the victim could have identified the defendant if she had survived the she to and the subjected beating stabbing occurred the course of during robbery burglary.’ “We have held that the arrest factor is not repeatedly avoiding aggravating unless the evidence that the applicable dominant motive for the proves only was to a eliminate witness. fact killing [Citations mere that the omitted.] defendant, more, victim knew and could without is identify insufficient factor
prove reasonable doubt.” 601 So. 2d at beyond 1164. aggravating
Other Florida cases have also that the mere fact that recognized
the witness victim, more, knew and could without identify
not sufficient to the “avoid arrest” factor. See prove aggravating Florida, v. 103, (Fla. 599 Bruno v. Flor- 1992); So. 2d
Jackson ida, (Fla. 1991); 574 So. 2d Florida, 81-82 Hansbrough
So. (Fla. 1987). 2d
In State v.
54, 60,
(2000),
Kan.
sidered the avoid context, arrest hard 40 aggravator specif- the notion the Florida cases cited
ically rejecting espoused by that the avoid arrest in those cases
Kleypas aggravator only applies
where witness elimination is the dominant or motive for the only Instead,
murder. we held that the State must show that motive—
not the dominant or
motive —for the murder was to avoid
only
prosecution.
Here, the evidence trial showed that C.W. did not see Kleypas
for the first time on the she was murdered. KBI Wil- night Agent
liams testified that said C.W. as the Kleypas recognized Kleypas
man who not, lived in the house. She did green Kleypas suggests, observe him as he attacked her. C.W. had seen
merely
before and him as man who lived in house recognized specific
in her C.W. knew her attacker and would have been neighborhood.
able to a solid identification of in a provide subsequent *105 This constitutes substantial evidence that
prosecution. Kleypas
murdered C.W. to avoid arrest or prosecution.
C. Evidence that Fled the State that the State told that it could on
Kleypas argues rely
evidence of his from Crawford as evidence that he flight County
killed C.W. order avoid arrest or He prosecution. argues
evidence he to avoid arrest the murder not be sought may after
1023 at the of the murder of his motives time as an indicator considered definition broaden the to do so would
because unconstitutionally that if the avoid arrest
of the avoid arrest argues aggravator. Kleypas a defendant flees to situations where is
aggravator applied crime, would of a
scene eveiy virtually aggravator apply at wait few defendants case because
death “[v]ery capital them.” the authorities scene for
the crime apprehend circumstance an
To constitutional scrutiny, aggravating pass clear and of the sentencer with the discretion
must channel objec and make
tive standards which guidance possible provide specific to death. a defendant
a rational review of sentencing process 606, 110 777-78, 764, 774, Ed. 2d v. 111 L.
Lewis 497 U.S. Jeffers, (1990). must not An circumstance
S. Ct. 3092 apply aggravating a subclass of that murder but defendant convicted of only
every 967, 972, 129 L. Ed. v. U.S. 512 California,
larger group. Tuilaepa (1994). could con 750, If the sentencer
2d
clude every applies aggravating broad murder, the circumstance is
convicted unconstitutionally Creech, 474, v. 463, 123 L. Ed.
and thus invalid. Arave 507 U.S. 188, S. Ct.
2d 113 1534 that the avoid arrest
Other courts have determined aggravator See, or overbroad.
on face is not its e.g., unconstitutionally vague 1997), cert. Oklahoma, 947 P.2d 180, (Okla. Crim.
Toles v. 192 Florida, 817, v. Wike (1998); 698 So. 2d
denied
(Fla. 1997), cert. denied
hart, 1105, Ark. 834 F. Supp. that the cases in of his assertion advances two support in this broad arrest
avoid unconstitutionally applied aggravator 424-25, Williams, Carolina First, 304 N.C. in North
case. Car cert. denied (1981), U.S. 932 the North
284 S.E.2d evidence held there was not sufficient
olina court support that defendant mere fact based
the avoid arrest aggravator of the murder to leave the scene that he wanted
told his accomplice in order to avoid
at a slow rate of arousing suspicion. speed concluded: at 425. The court
N.C. occurred after point statement the defendant killing “This single to avoid defendant’s wish that the reflected statement
it extremely likely *106 However, detection for the such statement cannot raise reasonable killing.
inference as his motivation before or at the time of It is a killing. post- an after-the-fact desire not be detected or expression killing evidencing appre- hended. In our does not raise a it reasonable inference that at the time opinion, defendant killed for the lawful arrest.” 304 N.C. killing purpose avoiding at 425. case, Florida,
In the second (Fla. So. 2d 454 Kormondy
1997), the trial court admitted evidence that while in Kormondy, said he would kill two other one of whom witnessed
jail, people,
the murder committed on by Kormondy. Kormondy argued appeal
that the evidence and not relevant an prejudicial proving circumstance. The State that the evidence was
aggravating argued
relevant to show that committed the to avoid murder Kormondy
arrest. The Florida court disagreed, stating: case, “In the circumstances this we cannot find that a statement attending alleg- (after made in the relevant edly jail criminal as to a future intent to episode) kill sheds intent the time of the crime. . . light Kormondy’s . His senti- ment about future seems to have arisen after It is too killings capture. simply to allow such evidence to
prejudicial
at the
speculative
intent
prove Kormondy’s
time of the
Unlike 304 N.C. So. 2d Kormondy,
the State in this case its anchored on the evidence that argument
C.W. knew and that time the at- after Kleypas spent C.W., in the his
tempted rape, presence considering options.
While the State referenced murder, after the it did Kleypas’ flight
so in the last two sentences of its The State’s ar- only argument. was based on the evidence that C.W. knew
gument
that he time after the fact, spent attempted rape deliberating
considered his and stabbed C.W. to death. options, attack on the of the statute as
Kleypas’ constitutionality applied more than rehash of his that the State mis- nothing argument
informed the about the nature the evidence available the existence of the circumstance. This
prove aggravating question
will be addressed in our misconduct, discussion prosecutorial
and we will not further discuss it here.
After a evidence, review of all the viewed in the most fa- light
vorable to the we determine that a rational factfinder prosecution, circumstance existence of
could have found aggravating *107 knew that C.W. doubt. a reasonable recognized Kleypas
beyond
him on her street. After he a who lived as attempted neighbor chair, a to consider his next he and tied her her paused
rape to es- When she the He
action. attempted telephone. unplugged evidence, a rational on this factfinder Based he killed her.
cape a reasonable doubt mur-
could have found beyond or to avoid arrest C.W. in order
dered prosecution. Challenge to the of the Hei- Definition 25. Constitutional
Issue Aggravating Atrocious,
nous, or Cruel Manner Circumstance heinous, the atro- that the instruction contends defining circumstance as used in Kansas
cious, or cruel manner aggravating to the United and Fourteenth Amendments
violates the Eighth 9 Bill of and of the Kansas Constitution Constitution
States § and fails narrow it is because unconstitutionally vague
Rights the death to receive
class eligible penalty. persons of the United States Fourteenth Amendments
The Eighth a direct and scheme Constitution sentencing require capital “ sentence ‘so as minimize risk discretion of the limit the ” v. action.’ Lewis U.S. Jeffers, arbitrary
wholly capricious the sentencer’s discretion scheme must “channel
at 774. The detailed standards’
‘clear and provide ‘specific objective im- reviewable the and that ‘make rationally process guidance,’ ” 420, 446 U.S. of death.’ a sentence Godfrey Georgia,
posing 398, (1980).
428,
Where jury all facets instructed that the
essential regarding jurors properly it is insufficient to instruct jury sentencing process; circumstance that is unconstitu- of an
the bare terms aggravating Arizona, 653, Walton v. 497 U.S. on its face. vague
tionally S. Ct. 3047 When 2d
111 L. Ed. statutory as un- circumstance an challenged defining aggravating
language first determine whether the this court must
constitutionally vague, circumstance is too vague pro-
statutory language defining so, the court must consider sentence. If
vide any guidance
whether state court has construction to applied narrowing
define terms in constitutional manner. 497 U.S. 654. vague 21-4625(6)
K.S.A. states as an circumstance that “the aggravating heinous,
defendant committed the crime in an atrocious especially
and cruel manner.” The instruction regarding aggravating
circumstance stated that must find “[tjhat heinous, the defendant committed crime in an atrocious or especially evil; cruel manner. The term means ‘heinous’ wicked or extremely shockingly vile; ‘atrocious’ means wicked and and ‘cruel’ means or outrageously de- pitiless to, to inflict utter indifference signed high degree pain, enjoyment of others. sufferings heinous, atrocious, “A crime is committed in an or cruel manner especially
where the inflicts serious mental or serious perpetrator abuse anguish physical before the victim’s death. Mental includes a victim’s toas his anguish uncertainty *108 or her ultimate fate.”
This instruction was from taken PIK Crim. 3d 56.00-C.
The United States Court has found similar Supreme language used in the first in the instruction to be uncon paragraph v. See 356, 364, U.S. 486
stitutionally vague. Maynard Cartwright, 372, 108
100 Ed. 2d Shellv. (1988); L. S. Ct. 1853 498 Mississippi,
U.S. L. 112 Ed. 2d S. Ct. (1990). 111 313 In the Maynard, heinous,
Court found that the atrocious, or phrase “especially
cruel” does not sufficient because an give guidance ordinary person
could believe that intentional of honestly every unjustified, taking Shell,
fife is heinous. U.S. at 486 364. In the Court found especially “ that the addition of the word heinous means ‘[T]he ex phrase evil; wicked or atrocious means
tremely shockingly outrageously vile;
wicked
and cruel means
inflict
designed
high degree
to,
with indifference
or even
of the
pain
enjoyment
suffering
”
others’
to cure
failed
the
1;
constitutional defect.
U.S. at 2 J., concurring).
This court with in connection recognized problem vagueness
with the first Willis, instruction in State v. of our paragraph 119, 130-31,
254 Kan.
adopting language by approved v. Willis, Court in Walton Arizona. 254 at Kan. 131.
Supreme Walton, Court had defined the Arizona
In phrase Supreme heinous, cruel or cruel” in its ag- depraved” “especially
"especially “ crime is committed in an ‘A factor follows: especially gravating inflicts mental or when the
cruel manner anguish phys- perpetrator death’ and that victim’s abuse before the ‘[m]ental
ical anguish ” as to fate.’ 497 U.S. his ultimate a victim’s includes uncertainty stated: Court
at United States 654. The Supreme definition of an factor of this degree aggravating “Recognizing proper we conclude that the defini- of mathematical
nature is not precision, susceptible Arizona Court tion to the cruel’ especially provision Supreme given it sentencer.” sufficient because give meaningful constitutionally guidance U.S. 655. of the Walton this court’s language argues adoption because court failed
does not solve the problem vagueness test Arizona courts the five-factor allegedly employed
adopt factor. contends that in Ar-
further define the aggravating die mental abuse once a crime satisfies
izona anguish physical must then find the existence of judge sentencing
requirement, (1) factors: the killer’s rel-
one of the or more following apparent murder; (2) the infliction violence on of the gratuitous
ishing victim; victim; (3) (4) the sense- the needless mutilation crime; (5) of the victim
lessness helplessness (citing Gretzler, 42, 51-53, [1983]). Ariz. P.2d 1
Arizona of Gretzler and of the Arizona sentencing
Kleypas’ interpretation “heinous,” Arizona, “cruel,” the three terms
scheme is incorrect. so all or one are in the either disjunctive, phrased “depraved” *109 Gretzler, circumstance. Ariz. could constitute an aggravating manner, to be committed in cruel the murder
at 51. In order or mental on the the infliction
must have involved physical pain was the at 50-51. This circumstance
victim. 135 Ariz. aggravating U.S. at 654. In order to be committed issue in Walton. See 497 manner, one or the murder must or
in a heinous
satisfy
depraved
Gretzler,
above.
more of the five are which further Thus, cited not factors
53. the factors by Kleypas the crime involved the infliction
narrow a that physical finding alternatives that allow the to find
or abuse but rather mental jury factor.
the aggravating
Kansas, Arizona, unlike of the Arizona def applies language heinous,
inition of cruel to the entirety phrase “especially Thus,
atrocious or cruel.” in order to find that murder is com heinous, atrocious, manner,
mitted in an or cruel especially must find that the inflicted mental
jury, perpetrator anguish abuse before the victim’s death. In that the Kansas
physical respect, is used
scheme identical that Oklahoma nearly -Maynard, post Oklahoma,
Crim. the Oklahoma Court of Criminal addressed Appeals No. is which identical to PIK Crim. 3d virtually OUJI-CR
56.00-C that the second states: “The ‘es except paragraph phrase heinous, atrocious, or cruel’ is directed to those crimes
pecially
where the death of the victim was torture of the victim preceded by
or serious abuse.” In Nuckols the court found that this physical First,
instruction must analysis. jury contemplates two-step
find death torture or serious preceded physical
abuse, and once that had narrowed, been category constitutionally “heinous,” would then “atrocious,” definitions of apply
or “cruel” to if the determine defendant would receive the death at 674. court P.2d concluded that the instruction
penalty. constitutional muster.
passed second that the of the Kansas instruc-
Kleypas argues paragraph
tion does not narrow the class of death defendants as does eligible
the second of the Oklahoma statute. contends paragraph instead, the second of the PIK Crim. 56.00-C(6) 3d paragraph
which states is crime committed heinous, in an “[a] especially
atrocious, or cruel manner where the inflicts serious perpetrator
mental or serious abuse before the victim’s death” anguish physical an of tire of conduct that would
merely gives example type qualify atrocious, heinous, or cruel rather than restricting aggravator
to this conduct. contrasts this with the Oklahoma instruc-
tion which states that the is “directed” such crimes. See phrase However, No. 436. a review of the language OUJI-CR
instruction this case leads to the conclusion tíiat the second intended be a definition rather
paragraph clearly narrowing
than an and we conclude that the narrow definition is example,
neither nor confusing misleading.
1029 the second is because also vague paragraph argues have intended to must it does not instruct juiy harm, is not limited to those acts over mental
cause the or physical death, to cause and does not inform the
and above those necessary acts after abuse cannot include that the performed physical However, none of these elements consciousness.
the victim loses Instead, the crucial the Constitution.
are mandated question narrows the class who
whether the definition persons adequately so. basis for Ara
are death doing eligible providing principled Creech, v. U.S. at 474.
ve “heinous, atrocious or cruel” is similar definition of
The Kansas to which was held of “cruel” the Arizona definition explicitly Walton, and Fourteenth Amendments. under the
sufficient Eighth definition of “hei- at 655. We conclude that Kansas
497 U.S.
nous, class who are death cruel” narrows the atrocious or persons with the a manner which defendants in complies require-
eligible United Fourteenth Amendments
ments of the Eighth
States Constitution. of Sentence
Issue 26. Proportionality constitution, our death stat- that our state
Kleypas argues court to conduct
ute, case law and Kansas propor- require will, This of his sentence. analysis according
tionality analysis aside when it is to set his sentence this court require
Kleypas, We Kansas for similar crimes. other sentences in with
compared of his claim based our conclusion
do not address the merits upon this court to nor federal Constitution
that neither the state require Further, noth- of his sentence. ain analysis
engage proportionality a review. state such in our law
ing requires used to has been compare
Traditionally, “proportionality” of the offense severity compare penalty,
gravity against crimes, similar sentences for
a sentence other imposed other Har-
evaluate Pulley jurisdictions. sentencing practices 29,
ris, S. Ct. 871 Ed. 2d U.S. 79 L. this court other
federal Constitution does require sentence with other sentences a defendant’s
Kansas court compare *111 in this or other state for similar crimes. 465 U.S. at
imposed any
43-44. however, that the in the Kan-
Kleypas, argues followinglanguage
sas a Constitution such review: compels offenses, “All shall be bailable sufficient sureties for persons by except capital
where is evident or the Excessive bail shall not be re- proof presumption great. nor excessive fines or nor cruel unusual quired, inflicted.” imposed, punishment Kan. Const. Bill of 9. Rights, § the difference in between the Kansas
Kleypas emphasizes language
and federal Constitutions. He the dis- places great weight upon “or” between “cruel” and “unusual.” He that an
junctive argues
“unusual” sentence a Thus, sentence. ac- implies disproportionate 9 of the Kansas Constitution Bill of
cording § Kleypas, Rights court to conduct review in order
requires proportionality
determine whether his sentence is “unusual” as to those compared in other cases.
imposed vein,
In a similar turns to the of K.S.A. 21- Kleypas language
4627(c)(1): sentence, “With to the the court shall deter regard
mine . . . [wjhether the sentence of death was under imposed
the influence of or other factor.” passion, prejudice any arbitrary focuses on the “or factor,” other any phrase arbitrary that the alludes to a review. In
claiming language proportionality contention, of his cites District
support Attorney for Watson, 648, 411 District v. 381 Mass. N.E.2d 1274 Suffolk Watson, the Massachusetts scheme at issue capital sentencing that the court review a sentence of death required part appellate “ to determine whether "the sentence of death was under imposed ”
the influence of other factor passion, prejudice arbitrary and also court to required appellate perform proportionality “ review—to include its ‘a decision reference to similar cases ”
which it took into consideration’ extracted from records of other
death cases accumulated the executive penalty by secretary of the state’s court. 381 Mass. at
justices 654. high
Watson held the Massachusetts death scheme to be cruel
or unusual as defined the state bill of because punishment rights
it offended was, standards of as a his- contemporary decency Mass, 660-61, 665. Based matter, inflicted.
torical arbitrarily not consider the decision, Watson did its the court in question review. scheme whether statutory required proportionality court com- statute
The Massachusetts required specifically cases and included mech- similar and reference sentences in
pare court. use information
anism for collection sentencing Thus, Watson no such scheme has Kansas provisions. statutory
is of little value to Kleypas’ argument. this court Kansas case law suggests
Finally, Kleypas argues review in criminal
has been conduct willing proportionality *112 mandate, is
cases, the issue raised absent when appeal statutory Freeman, 950 223 Kan. 574 P.2d In State v.
from sentence. in the
(1978), of murder Freeman was convicted second-degree the minimum sentence She received
death of her abusive husband. attacked to statute. Freeman
but was denied probation pursuant 223 of as cruel and unusual the statute punishment. operation at 363.
Kan. whether the criteria for
This court set forth three evaluating constitutional of a sentence offends the prohibition against
length
“cruel punishment.”
“(1) of the offender should of the offense and the character nature rele- of examined with danger present society; particular regard degree crime, of or nature
vant facts violent nonviolent to this are the of inquiry offense, and the the extent of for the resulting, injury penological culpability of the punishment; purposes prescribed “(2) in this with juris- A punishments imposed comparison punishment of are more serious serious if them found diction more offenses, among for in crimes less than the offense challenged question penalty punished severely to that extent is suspect; "(3) in other for A of the with punishments jurisdictions comparison added.) at 367. 223 Kan. the same offense.” (Emphasis relevant, reasons to fails for several
While Freeman support First, the Freeman review. for argument
Kleypas’ proportionality constitutes cruel sentence
factors are test whether designed 9 Constitu- of of the Kansas
or in violation unusual § punishment as a mechanism not
tion Bill of are clearly designed Rights. They Second, tested the Freeman review.
for length— proportionality Third, Free- the second the nature —of the
not sentence imposed.
man factor with requires comparison punishment punish- crimes,
ments in this state for more serious not the same imposed crimes,
or similar and not the actual aon punishments imposed Indeed, basis but the set forth statute.
case-by-case punishments
Freemans this second factor consisted of application considering
whether in Kansas a crime of level than Freeman’s greater severity
carried
less severe
Kleypas points recently applied
State v. 251 Kan. 840 P.2d However, Tyler, we out that the Amendment the federal
Tyler pointed Eighth
Constitution does not We con- carry proportionality guarantee.
sidered the Freeman factors in claim under evaluating Tyler’s §
of the Kansas Bill Constitution and stated: Rights, “After a review the record and the nature of offenses we considering Tyler’s find his is sentence to his crimes in violation grossly disproportionate of § of the Kansas Constitution Bill of The sentence is within the Rights. imposed proscribed by product partiality prejudice.”
limits
law and we find it
not a
Thus, limits the of Freeman little if Tyler application provides involved the issue of Tyler
any support Kleypas. proportionality in the context of whether sentence
only Tyler’s proportionate
to his crimes. There was no sentence to those Tyler’s comparison
of others convicted of the same or a Further, similar crime. Tyler *113 nature, not the of his sentence.
complained length, this court limited the of the Free- Finally, severely application Scott,
man
factors in State v.
1,
(1998).
Kan.
Scott claimed the access of the Kansas Sex Of- public provisions
fender Act constituted cruel and unusual Registration punishment.
and held the Act violated the state constitution. On petition
review, this court considered the claim in the context of the federal Constitutions,
and state that it had the noting right interpret
Kansas Constitution from the federal Constitution but differently
that it has not done so. 265 at Kan. 5. We observed in traditionally
Scott that the test in the second Free- proportionality incorporated
man factor had since been discredited the United States Su- Court, of the Freeman test to instances
preme
limiting application
a
where the challenged. length
stated: should be there still be instances where Freeman test
“While applied, may where the method of rather than
we will it here punishment, not apply precisely sentence, or this court a is as cruel unusual. Neither nor of challenged length test of die of Court has such outside
die length [United Supreme applied States] We look to some of die Freeman factors
sentence context. may omitted.] [Citation access basic is whether die
in our but our provisions analysis, public question that so barbarous and to human the KSORA render contrary dignity punishment shocks our conscience.” 265 Kan. 9. it also Freeman test has been used out points McCloud, 5-6, 324, cert. State v. 257 Kan. 891 P.2d
this court in (1995) U.S. 837 of sentence which was within
denied 516 (length unusual); & limits, or State v. McDaniel not cruel
statutory 172, 185,
Owens,
(1980) (Freeman test
228 Kan.
upheld Strauch, or of it used in State
sive form disproportionate); 203, 220, (1986) (criteria to consider
239 Kan.
determining punishment disproportionate
“excessiveness, lack of disproportionality, necessity, unacceptability infliction”). He also contends arbitrariness society
this court
in
review of the sentences of
engaged
proportionality
codefendants State v. Kan. Bailey,
All the above cases dealt with regarding length, complaints nature, of the sentences. Scott holds that Freeman
not the of a sentence.
factors are be only applied evaluating length so, do
Even the Freeman factors Kley- suggest comparison in this state those on other defendants sentence with imposed
pas’ law same similar crimes. Kansas case
convicted simply review as
does not mandate by Kleypas. requested proportionality Constitution, the Kansas death
We that neither the Kansas hold statutes, defendant’s nor Kansas case law requires which to a review
sentence compares subjected proportionality de- with on other Kansas
the defendant’s sentence those imposed *114 or similar crimes.
fendants for the same Constitutionality
Issue 27. of of Conviction Upward Departure
Aggravated Burglary next that the trial court erred in an argues imposing durational sentence for his conviction of
upward departure aggra-
vated The trial court an durational de- burglary. imposed upward sentence of 68 months rather than the sen-
parture presumptive
tence for of 31 to 34 months indicated aggravated burglary criminal (1) This was based on ex-
Kleypas’ history. departure
cessive of (2) the crime and the obsessive and/or brutality pursuit victim.
stalking
Based on the United States
Court
opinion Apprendi
Supreme
New
466,
530 U.S.
L.
Ed. 2d
(2000), and our Gould, in State v. 271 Kan. 23 P.3d opinion (2001), it is clear that sentence for departure Kleypas’ aggra-
vated must be vacated and the matter remanded for re- burglary
sentencing. Mercy
Issue 28. Instruction on that his constitutional were violated
Kleypas argues rights
trial court’s failure to instruct the exercise of properly jury The trial court submitted Instruction 13 to No.
mercy. as follows:
during sentencing phase circumstances are those which fairness “Mitigating considered as may or of moral extenuating reducing blame or degree which culpability justified death, a sentence of less than it does not or excuse the offense. although justify
The determination what are circumstances is for as mitigating you jurors resolve under the facts and circumstances of this case. “The the exercise appropriateness can abe mercy mitigatingfactor itself consider in
you may whether the State has determining reason- proved beyond able doubt that the death added.) is warranted.” (Emphasis
The instruction also lists 31 factors forth mitigating put by Kleypas
for the consideration well as the statement jury’s general other be considered. mitigators may language precisely
tracks that contained in PIK Crim. 3d 56.00-D. to
During closing, Kleypas’ attorney explained length
the function and availability mercy during sentencing phase: *115 and and are those facts for which in fairness circumstances mercy you “Mitigating law, and make believe that law of this land in fairness that is the the mercy you killed, be that he be Look instruction should should in
this man not prison. be are in fairness consid- circumstances those which may number 13. Mitigating it, is of or the of moral that ered as part reducing degree culpability, extenuating death, a less which or a sentence of than sentence justified or blame which justify it does or excuse the offense.
of less than death not justify although . to heart in whether to “. . It is for consider in something you your deciding fact, and, a this case statement fairness and in in you exercise mercy get specific the of of in that instruction 13. The of exercise the law down appropriateness itself be a factor consider in can you mercy, mercy mitigating may deciding here is the
whether this seated over should be killed or in That what man prison. ... the law and I looked the word in mercy fairness dictionary says, mercy. up and is where the word But in the there other mercy appears. dictionary places one the is or forbearance shown an offender. of definitions compassion actual in is “You know what another definition B Webster’s dictionary impris- as a for or for-
onment rather than death murder. imposed Compassion is the law that a valid for offender. That what law The is bearance an says. says heart telk to exercise or decide that mitigator. you your you mercy, compassion If that is a then that believe that reason
forbearance, fairness, you you right. If for the not to not to vote then kill execution Gary Kleypas, you Gary Kleypas, added.) a the have that (Emphasis mitigator aggravators.” outweighs found the
If states law as instruction fairly challenged properly case, and could facts in the if the reasonably jury
applied it, the does
have been misled instruction not constitute revers 610, 613, 1 Alexander, (2000). State v. 268 Kan. P.3d
ible error.
use of
instructions is not
but is
recommended.
“The
PIK
mandatory
strongly
have been
committee
instructions
developed by knowledgeable
pattern
instructions.
should be
accuracy, clarity,
They
bring
uniformity
jury
set
instructions. If
in
particular
point
jury
starting
preparation
instruction,
or
facts
case
modification
in
require
applicable pattern
given
PIK,
the trial court should not
the addition of some instruction not included
However,
need,
hesitate to
such
absent such
PIK
make
modification
addition.
State
instructions and recommendations should be followed. [Citation omitted.].”
Franklin,
Kan.
Kleypas it does so insufficient legally mercy jury, exercising exercised, be if it is to must
manner. mercy, argues has and mit-
be exercised aggravating only weighed after circumstances and determined a sentence of death is
igating
warranted. after has decided only According Kleypas, should be to death can it exercise truly put mercy sentence,
instead nondeath thus itself should not impose mercy as a characterized mitigator. are unfocused. He them
Kleypas’ arguments supports citing
cases to trial under the state constitu- upholding right by jury
tion, treatises the common-law tradition of the expounding upon
exercise of and out-of-state cases to mercy by juries, purporting “the of rules to the
recognize fallibility legal designed guide jury’s
discretion in defendant’s The cases deciding capital punishment.”
cited stand no such for and are not ar- thing helpful Kleypas’
gument. above,
As noted the United States has Court held that Supreme
the Amendment two of a death sentence: Eighth requires things
(1) The sentencer must not have unbridled discretion in determin defendant, the fate the (2) of and the defendant must be al
ing
lowed to introduce relevant of evidence his char any mitigating acter or record or circumstances of the offense. California
Brown, 479 U.S. 934, 107 93 L. Ed. 2d S. Ct. 837
A instruction se is as this of mercy per simply required part law, federal or state is a nor of
equation by specific type mercy
instruction.
The trial court the PIK instruction which provided incorporated
the into the consideration of concept mercy jury’s mitigating
factors. fails to show how the instruction was not adequate inform of its to exercise or how the trial juiy option mercy
court otherwise failed to exercise We permit mercy.
conclude that Instruction No. 13 stated the law fairly properly
as to the facts and that the could not have been misled applied the instruction given. During Penalty
Issue 29. Standard for Admission Evidence
Phase that the standard for admission of evidence dur-
Kleypas argues set forth in 21-4624(c) K.S.A. violates the
ing sentencing phase
heightened reliability requirements capital sentencing guar- of the state and federal Constitutions. various
anteed by provisions find that standard for admission this
We argument reject Amendment.
satisfies Eighth 21-4624(c) states:
K.S.A. evidence be any “In the may presented concerning sentencing proceeding, to the of sentence and shall include that the court deems relevant matter question 21- circumstances enumerated in K.S.A. of the matters relating any aggravating such evi- thereto and circumstances.
4625 and amendments any Any mitigating be received which the court deems to have value dence probative may regardless evidence, that the under rules of defendant of its admissibility provided to rebut statements. such evidence accorded fair any Only opportunity hearsay as the state made known defendant circumstances prior aggravating admissible, vio- be and no evidence secured in shall the sentencing proceeding be United States or of the state of Kansas shall lation of the constitution of the defendant at the shall admissible. No testimony by sentencing proceeding at At the defendant criminal admissible proceeding. against subsequent a rea- the court shall allow the
conclusion evidentiary parties presentation, of time which to oral sonable present argument.” period standard, (1) raises two
With arguments: regard of the rules of evidence
Relaxation phase capital to evidence offered in
trial may only support mitigating, apply circumstances; (2) absence of a
not aggravating, *117 require the the value of the evidence
ment that court weigh probative is to be its effect a fatal flaw admitted prejudicial
sought against relies
which renders statute unconstitutional. heavily v. a of related cases to his
on
arguments: Washington
support
pair
173,
98
2d
Bartholomew Wash. (Bartholomew I), Wash.
(1982); II), v. 101 Bartholomew (Bartholomew Washington 631, P.2d
2d 683 1079 I, Court considered
In Bartholomew the Washington Supreme of that state’s death scheme of penalty constitutionality portions evi- to consider other
which allowed among things, of whether the conduct of criminal conduct
dence regardless prior de- a factors in or conviction and relevant
resulted any charge circumstances whether there was sufficient
termining mitigating addition, the the life of the defendant.
merit capital sparing court which statute included required provision
Washington evidence admit relevant
at sentencing any regardless probative
1038
under
its
the rules of evidence.
99.
The court set forth Washington lengthy analysis Eighth
Amendment It noted capital punishment jurisprudence. two
federal Constitution aof death scheme: requires things
(1) It must the discretion of the the death guide jury, rendering renewable, (2)
sentence it must allow rationally particularized
consideration of the defendant’s character and record. Of these
two, court further narrowed its focus the first requirement the discretion of the at 98 Wash. 2d 192-93. channeling jury.
On the issue of Court channeling, Washington Supreme
looked United States Court distilled Supreme precedent
from the it conclusion that the Constitution requires
consider evidence Su- any supporting mitigation. Washington Court admitted the had Court on the
preme Supreme passed of whether the same true of evidence
question supporting ag- 98 2d Wash. at 194-95.
gravation. 153,
The court 203-04, v. U.S. 428 49 quoted Gregg Georgia, 859,
L. 2d Ed. 96 S. Ct. (1976), 2909 the breadth matter of
of evidence admissible of a trial: during penalty phase capital “ “We think the court has chosen not re- Georgia wisely impose unnecessary strictions on the evidence that can be offered at such and to hearing approve So as the evidence introduced and
open argument. the ar- far-ranging long defendant, made at die do not guments presentence it hearing prejudice ” not to restrictions.’ 98 preferable Wash. 2d 193. impose
The court also Ohio, 586, considered Lockett v. 438 U.S. 57 L. 973, (1978),
Ed. 2d
jury’s any aspect
record or circumstance; of the offense as a any aspect mitigating Oklahoma, 1, 102 U.S. Ed. 71 L. 2d S. Ct. 869
Eddings
(1982), which forbade refusal to consider relevant mitigating
circumstances; and Green v. U.S. L. Ed. 2d Georgia,
738, 99 S. Ct. (1979), which forbade exclusion mitigating
evidence on the basis of state rules. 98 2d at Wash. 194. hearsay
The court summarized:
“While such liberal of is information mandated Lockett v. reception mitigating by Ohio, al., et the Court has not considered whether the yet same specifically prin- The statements in v. to factors. Gregg Georgia quoted aggravating ciples apply to broad above are equally aggravating mitigating apparently enough apply Nevertheless, Lockett the in
information. applicable only mitigating reasoning Furthermore, on contains one limitation its information. significant sweep- Gregg de- the sentence the information before the must ‘prejudice’ ing language; Wash. 2d 194-95. fendant. omitted.]” [Citation seized the notion of
The Court on “prej- Washington Supreme
udice,” stating: least, be the Court’s that defendant
“At
recognition
may
prejudiced
very
criteria
of information at his
different
suggests
apply
sentencing
reception
In Bartholomew analysis, Washington death, Court that: reversed sentence of concluding
Supreme
(1) the admission of evidence of defendant’s authorizing provision stricken, criminal other than convictions should activity
previous
(2) the to receive relevant evidence” liberal statutory authority “any evidence, (3) be limited to relevant consider-
must mitigating any
ation relevant factors” should be limited to relevant “any factors, (4) State evidence not introduce
mitigating may convictions) criminal (other than
nonstatutory
except
aggravators
in
for matters rebuttal of evidence. mitigating certiorari, vacated
The United States Court granted Supreme I, in Bartholomew for reconsideration remanded judgment 235, Zant v. 862, 2d 462 U.S. 77 L. Ed.
in Stephens, light Bartholomew, v. (1983). 463 U.S.
S. Ct. 2733
Washington
2d
77 L. Ed. II remand in Bartholomew on Court Supreme Washington Thant as follows: It
did not its decision. characterized change was whether the invali- “The before United States Court question Supreme found circumstances
dation of one statutory multiple aggravating be invalidated death sentence must penalty requires imposing under the Amendment. Eighth went that a consideration
“The Court Zant indicate Stephens jury’s will not render a death sentence unconstitu- factors nonstatutory aggravating
tional: func- circumstances necessary ‘[Sjtatutory constitutionally aggravating play other tion .... But the Constitution does not ignore require
1040 factors in the from
possible [nonstatutory] aggravating process selecting, class, that tifióse who defendants will sentenced to death.’ among actually “In a limited Zarvtv. answers the as to con- way, limits the Stephens question on
stitution the fac- places prosecution’s presentation nonstatutory aggravating Court, tors at the of a case. sentencing phase capital According Supreme However, the consider factors. jury may sentencing nonstatutory aggravating
court Zant v. does not that factors should Stephens say nonstatutory aggravating
have the same liberal information de- reception mitigating proffered by Wash. 2d at fendant.” 101 635-36. Court out that Zant Washington Supreme pointed quoted “ for the as the evidence intro- ‘[s]o
Gregg proposition long duced and the at made do not arguments presentence hearing ” defendant, it is not to restrictions’
prejudice preferable impose of evidence. 101 Wash. 2d 637. at This admissibility prompted Court declare that United States Washington Supreme Court once this stan-
Supreme again “acknowledged ‘prejudice’
dard.” Wash. 2d at 637. Lamenting, Washington Supreme
Court stated: “Likewise, v. decisions, Zant and other recent Court Stephens have Supreme Nevertheless, statute, failed to this faced death clarify with concept. Amendment, of which we find offensive under provisions Fourteenth Eighth
Amendment,
constitution,
and our state
we cannot
for the
wait
Court
Supreme
It is our
that this
clarify
concept.
opinion
prejudice’ concept subjects
more
to a
standard than that
prosecution
of the defendant at the sen-
stringent
aof
case.”
The court hastened to add if its federal constitutional analysis error,
was in
the same conclusion was
under the Wash-
required
State Constitution.
ington
its in its decision at Wash. 2d 648. prior entirety. draws from cases (1) these two K.S.A. 21- arguments:
4624(c) is infirm because it allows admission constitutionally evidence of circumstances without consid-
probative aggravating evidence,
eration for the rules of (2) statute Kansas is invalid
because it does not standard. incorporate Gregg prejudice
However, we do not find Bartholomew I and Bartholomew II per-
suasive. Oklahoma, Ed. 2d 114 S. 512 U.S. 129 L.
In Romano two His (1994), was tried murders. Romano
Ct. separately sentence. sen- in conviction and death trial resulted
first During trial, evidence of introduced his second
tencing prosecution Romano was sen- and death sentence. first murder conviction
his he second On to death trial.
tenced argued appeal, *120 death undermined of his first sentence of
admission of evidence for the of its
the determining understanding jury’s responsibility He also of death in the second trial. the penalty
appropriateness his conviction was later overturned out that first appeal.
pointed it as States framed the issue before
The United Court Supreme
follows: “ a has been sentenced of evidence that defendant ‘Does admission already capital sense case of
to death in another
undermine the sentencing jury’s
impermissibly
death, in
the
of the defendant’s
for determining
appropriateness
responsibility
”
The Court Eighth a threshold below (1) cases: States must establish
work capital is, that states must the death cannot be
which penalty imposed, the class of mechanism which narrows persons genuinely
provide and ca- the while for death arbitrary minimizing
eligible penalty decisions; (2) must ensure that sen- states sentencing
pricious record of defend- are based on the individual character and
tences crime,
ant, the of the without as well as circumstances limiting 7. 512 U.S. at The information.
consideration any mitigating
Court stated: limits, latitude to States their traditional “Within these constitutional ‘the enjoy shall be the method which those who commit murder punished.’
prescribe at rules This latitude extends to sentencing pro- evidentiary omitted.] [Citation
ceedings. down, we fashion “Petitioner’s seems request argument, pared Amendment, rules, under the Eighth evidentiary guise interpreting general at would of evidence proceed-
which admissibility capital sentencing govern however, will not do so We done in the and we today. have not so ings. past, state does establish a code evidence to Amendment supersede Eighth federal (Empha- omitted.]” rules evidentiary capital sentencing proceedings. [Citation added.) at U.S. 11-12. sis attention, cites, as focuses much do the cases on the he
notion as mentioned in “prejudice” briefly Gregg. Putting in context is Su- United States
quotation helpful Gregg, Court considered the death
preme constitutionality Georgia scheme. One of minor touched on an Gregg’s arguments issue.
evidentiary “The to the wide of evidence and petitioner objects, finally, scope argument at allowed We think cho- presentence court has hearings. Georgia wisely sen not to restrictions on the can at evidence that be offered impose unnecessary such a and to hearing approve open far-ranging argument. [Citation omitted.] So as the evidence introduced and the made at long arguments presentence defendant, do not it is not to restrictions. hearing prejudice preferable impose We think it desirable have much it as possible for information before added.)
when it makes the decision. sentencing [Citation omitted.]” (Emphasis U.S. 203-04. omits last sentence of the
Kleypas conveniently quotation
which is important message conveyed by Supreme
Court. twist mentions, however, Another that neither party statute in effect at time Georgia provided sentencing *121 to the of laws evidence.” Ga. Code Annot. 27-
hearing “subject § (1971) the Act of now (repealed superseded by at 27-2503). Ga. Code Annot. See Brown v.
appearing § Georgia, 644, 648,
235 Ga. (1975). Thus, S.E.2d 922 the Supreme
Court’s comment the should have as much information jury
as was made in the context of a statute which possible subjected
the to the laws of evidence. sentencing hearing Georgia
Romano is more to the and makes two helpful analysis important
statements about concerns the evidentiary against backdrop First, Amendment. the State has latitude in
Eighth great fashioning Second, rules
evidentiary capital sentencing proceedings. Amendment does not a basis for at the
Eighth provide inventing, level,
federal rules to restrict of evidence evidentiary admissibility
at a state capital sentencing proceeding. 21-4624(c)
K.S.A. evidence requires presented sentencing
be relevant to the of sentence have value. question probative
Evidence in secured violation of the Constitution is not admissible.
Further, the State introduce evidence of cir- only may aggravating to sen- defendant which were disclosed
cumstances prior to rebut is a fair and the defendant guaranteed opportunity
tencing, have as The statute ensures that sentencer statements.
hearsay information basic as while the defendant
much affording possible contention, we conclude that fur- Contrary Kleypas’
protections. the rules
ther of evidence restriction by applying reception the in- but not evidence in
of evidence to aggravating mitigating advis- of to the defendant neither
terest preventing “prejudice”
able Amendment. nor Eighth required of the statute’s failure to shield also complains in the form of a correctional
from evidence adjustment hearsay
checklist from Missouri Corrections. Department that introduction of this evidence
argues suggested on weaker inmates in
he was racist and prison. sexually preyed because that admission of the checklist was
He contends improper it and violated his
the information contained unreliable it right
to confrontation. our discussion
These are detail in greater arguments explored addressed here. misconduct and will not be
involving prosecutorial was intro- it to that the evidence
Suffice say Kleypas complains
duced rebuttal to evidence he himself offered mitigation in Bartholomew I and II acknowl- Even court
punishment. that the is entitled nonstatutory ag-
edged prosecution produce when is used to rebut matters raised evidence it
gravating 197-98; Wash. 2d at 98 Wash. 2d at
defendant in mitigation. of evi-
642-43. admissibility Kleypas’ arguments concerning trial fail.
dence murder capital during penalty phase Guilty 30. Effect of A Plea Under K.S.A. 21-4624
Issue a sentence of K.S.A. 21-4624 does not allow
Kleypas argues crime, while to a to be
death imposed upon plea guilty capital conviction after sentence of death be imposed upon
allowing *122 exercise of trial, his thus a and chilling encouraging guilty plea himself not to incriminate
state and federal constitutional rights guilty.
pleading he to the crimes for which did not
Kleypas plead guilty to chill his consti- the statute did not
convicted. Clearly, operate
tutional becomes instead that he has rights. argument Kleypas’
been for these ato death punished exercising rights by exposure
sentence which he received. ultimately admits that he failed to raise this issue in the trial court.
However, 21-4627(b) K.S.A. court, authorizes this when consid- a death to “notice errors
ering penalty appeal, unassigned appear- of record if the ends of would be served Be-
ing justice thereby.”
cause this cases, issue is to arise in future we will consider it likely
here. bases his that K.S.A. 21-4624 is unconstitu- argument
tional on the seminal case of United States v. 390 U.S. Jackson, 20 L. Ed. 2d 88 S. (1968). There, Ct. 1209 the United
States Court invalidated the death Supreme penalty provisions
the Federal Act because could Kidnaping only jury impose
death sentence. The Act allowed those who or waived pled guilty trial to with their lives. jury escape
The Federal Act Kidnaping provided pertinent part: “ “Whoever commerce, in interstate . . . knowingly transports who any person has been . . . . . . and held for . . unlawfully ransom . or kidnaped otherwise (1) . . . shall be death if the has not punished been liberated kidnaped person unharmed, recommend, and if the (2) verdict of the shall so or jury by impris- life, onment for term of if the any death years is not im- ” 1201(a), 18 U.S.C. at
posed.’
ates an offense death “ifthe verdict of the punishable by jury shall
so recommend.’ The statute sets forth no procedure imposing
the death a defendant who waives the penalty upon right jury
trial or one who U.S. 571. upon pleads guilty.”
The Court concluded: Act, “Under therefore, the Federal the defendant who Kidnaping abandons the to contest his before a right executed; is assured that he cannot guilt juxy defendant to seek a that, ingenuous stands enough forewarned acquittal if finds him life, and does not wish to his guilty he will die. spare Our is to decide whether
problem the Constitution the establishment permits of such a death to those penalty, defendants who applicable assert the only contest right their before a is, guilt course, inevitable effect of jury. such provision assertion of the Fifth discourage Amendment not to and to right plead guilty
1045 a trial.” 390 U.S. Sixth Amendment demand deter exercise jury right
581. that the death
The Court determined “needlessly penalty provision a and thus in- the assertion of constitutional right”
penalizes later, 583. few the Court
valid. 390 U.S. at A months analyzed in Bank Act and contained the Federal
similar Robbery language States, United 392 U.S. See v.
reached the same conclusion. Pope 1317, (1968).
651,
Ed. 2d
K.S.A. 21-4624 present It clear of K.S.A. 21- existed in is from language Jackson. which also
4624(b) that defendant waive trial by jury may capital However, where defendant
waives by jury. pleads sentencing and he or she is still thus trial sentencing by jury,
guilty, waiving Thus, death the court.
subject by imposition penalty
Kansas, murder will be a defendant who guilty capital pleads court to the same standards
sentenced by imposed according the same those sentenced and faces range pen-
upon are
alties. See K.S.A. 21-4624. arguments contrary Kleypas’ Thus, is no
without merit. there needless guilty encouragement cases, on the state there is no effect chilling
pleas capital self-in-
and federal trial constitutional rights against
crimination. Right The to Life Under the Kansas Constitution
Issue 31. vio- of the death Kansas’ argues adoption Constitution Bill of
lates 1 9 of Kansas Rights. §§ is a of law of a scheme constitutionality statutory question 260
over court unlimited review. State which this has Myers, 669, 676, (1996), cert. denied U.S.
Kan.
(1997). A scheme statutory presumed of its If there is
doubts must resolved in favor validity. valid, the
reasonable to construe statute constitutionally way do violate the constitution
court must so. A statute must clearly Scherzer, State v. 254 Kan.
before it be struck down. may
A. Section relies most 9 of the Kansas Constitution heavily §
Bill of This section states: Rights. offenses, “All shall be bailable sufficient sureties persons except capital
where or the evident Excessive bail be re- shall not proof presumption great. nor excessive fines nor cruel unusual or inflicted.” quired, imposed, punishment first draws distinction between this and language
of the Amendment to the States United Constitution which Eighth
states: “Excessive bail not be shall nor excessive fines nor cruel required, imposed,
and unusual inflicted.” punishments se does not
According Kleypas, although capital punishment per Amendment,
violate the it does violate 9 of the Kansas Eighth §
Constitution Bill of Rights.
Section 9 of the Kansas Constitution ofBill in Rights prohibits
fliction of cruel unusual the State. The punishment prohi
bition is directed at the kind of primarily punishment imposed McCloud, than its duration. State v.
rather 257 Kan. P.2d 891
324, cert. denied Nonetheless, U.S. 837 (1995). 516 Kansas courts
have held that the of a sentence be so excessive as to length may
constitute cruel or unusual
State v. McDaniel &
punishment.
Owens,
172, 185,
228 Kan.
usual involves that shocks the conscience punishment punishment ” or which Scherzer, seems inhumane or barbarous.’ 254 Kan. at
939.
This court has on numerous occasions faced the issue of whether of a sentence constitutes cruel or unusual length particular See, in a State v. of contexts. 251
punishment variety e.g., Tyler, 616, 644-46,
Kan. 840 P.2d (1992) (consecutive 413 to sentences 111 to 330 not cruel and unusual State
taling years punishment);
v. 194, 202, 228 (1980) (sentence Kan. 612 636 P.2d not Weigel,
cruel and unusual because it than those longer given Freeman, State v.
defendant’s 223 362, 368, 574 Kan. accomplices);
P.2d (1978) (statute 950 minimum term fixing mandatory prison
without State, v. not cruel unusual); 207 Kan. parole Cippola
822, 824, (1971) (Habitual P.2d 1391 Criminal Act sentence of cruel or unusual does not constitute infliction
enhancement pun-
ishment). has considered the this court
Less question frequently See, is cruel or unusual. the nature
whether punishment Scherzer, at 939 decision to 254 Kan. State (legislature’s
e.g., another was arrest for one of crime not for
allow house type State v. 201 Kan. cruel and unusual Kilpatrick, punishment); (1968) cruel and
6, 18-19, 439 the neck is not P.2d (hanging by White, 514, 515-17, State v. 44 Kan. 25 Pac.
unusual punishment); (1890) at hard labor not se cruel or unusual (imprisonment per 9).
under § contexts, this court has not drawn distinction
In both generally a sentence is cruel or unusual
between the of whether analysis state constitution and whether a sentence is cruel
under the See, 251 Kan.
unusual under the federal Constitution. Tyler, e.g., “cruel and
at consecutive sentences did not violate 644-46 (lengthy found in 9 of the Kansas Con-
unusual § punishment prohibition (death Bill of 201 Kan. 18-19
stitution *125 Rights”); Kilpatrick, 9 because did not violate Amendment Eighth §
hanging unusual; no of state and is not cruel and analysis separate
hanging Scott, 1, 5, 667 State v. 265 Kan. 961 P.2d
federal In provisions).
(1998), we stated: in a manner we have the our Kansas Constitution “Although right interpret construed, omit- than the United States Constitution has been [citation different ted], of both we have not done so. The wording [Citation omitted.] traditionally identical, of both at issue is and we will look to constructions clauses pro- nearly our conclusions herein.”
visions in reaching treatment of this court’s historical
Kleypas argues despite the Kansas two the framers of interchangeable, provisions unusual” in- chose the “cruel or
Constitution deliberately phrase reason not
stead of “cruel and unusual” for some by Kley- specified and cannot but which is nonetheless ignored.” “significant,
pas clear from records available that Kansas founders
It is present to model the Kansas Convention of 1859 decided the Wyandotte Ohio, and Bill of that of its Preamble
Constitution after including Convention, 39-40, Larimer, Constitutional Wyandotte pp.
Rights. time, (1920). At the Ohio Constitution
678 prohibited Const, cruel “and” unusual Ohio
infliction of See punishment. 1,
1851, 9. little art. There was or no discussion of 9 of the § § save
Kansas Constitution Bill of that the “or” Rights, suggestion
between cruel unusual be with “nor.” The replaced suggestion but never in the final version of adopted appeared apparently Larimer, fact, 288.
the constitution. section of the only p. 1,
Bill of debated was Rights extensively referring § equal rights life, which was the basis liberty,
including pursuit happiness, Larimer,
for a contentious debate. 697. slavery p.
There is in the available constitutional nothing history
convention which reason the choice of an suggests significant of an Further,
“or” instead “and” between cruel in 9. and unusual § 9 itself references offenses” in the context of
§ “capital declaring
them nonbailable where the evident or proof presumption that this reference does not confer consti-
great. Kleypas argues
tutional stature the death but its upon penalty merely recognizes However,
existence at the time of the section’s even the adoption.
mere of its existence the framers that the recognition suggests itself was not at the time considered “unusual.”
punishment also cites two cases in other states in which state con
stitutions infliction of “cruel or unusual” prohibiting punishment
were construed invalidate death legislatively imposed Anderson,
schemes. In 628, 100 Cal. 3d Cal. People Rptr.
493 P.2d cert. denied U.S. (1972), the California Su held that Court Anderson’s death sentence violated the Cal
preme
ifornia Constitution’s cruel or unusual against prohibition punish decision,
ment.
reviewed its constitutional on the cruel or unusual history punish constitution,
ment in its state noted the absence of dis provision
cussion or debate on the “cruel or unusual language regarding pun
ishment” at the convention, constitutional noted that the delegates
relied on constitutional which models featured “cruel and unusual” and concluded that the court could not assume the
provisions,
framers chose the “or” 6 Cal. 3d disjunctive option haphazardly.
at 634-48. also
The court it what called “incidental references” to analyzed
the death in the of the California Constitution. The penalty body
1049 than references did no more reasoned the court acknowledge nineteenth 6
existence of century society. capital punishment and difficult its to confront resolve 3d at 638.
Cal. duty Recognizing issues, its historical the court
constitutional acknowledged practice con- on the state an Amendment analysis Eighth superimposing at 6 3d 639- Punishment Clause. Cal. Cruel or Unusual
stitution’s (1) context, the death be: the court held Within this
41. penalty effects, as dehuman- as well its and
cruel in psychological physical (2) in its unusual waning pop- infrequent application
izing; 6 at 649-57. the world. Cal. 3d in other states and around
ularity death Court invalidated its
The Massachusetts penalty Supreme v. District basis in District similar Attorney for Suffolk Watson, (1980). N.E.2d 1274 In 381 Mass. declaratory
action, a determination the Suffolk District Attorney sought Cruel or Unusual Punishment
whether the state constitution’s at 649-50. The 381 Mass.
Clause prohibited capital punishment. be cruel
court held that the death unconstitutionally penalty would standards of
cause it offended decency contemporary 661-62, 665. inflicted. 381 Mass.
necessarily arbitrarily Massachusetts subse the voters of California and
Interestingly, death amended their state constitutions clarify
quently within the does not constitute cruel or unusual punishment
penalty Frierson, 25 Cal. v. of the state constitution.
meaning
California
Massachu
(1979);
142, 184,
158 Cal.
setts N.E.2d Mass. have dubbed Anderson state constitu
Commentators “aggressive the activist state bench
tional which using lawmaking” “exemplifies short, liberal state constitution agenda.” promote “state was a constitutional fine chutzpah.” example
opinion Deci State Constitutional The Most Noteworthy
Latzer, Essays: State Constitutional L. Rev. 1733
sions: Alb. Chutzpah, states’ courts have
Individual on other attempted jurists high and Watson the death the lead of Anderson
follow by attacking of whether their on state constitutional regardless grounds cruel cruel and unusual
state constitutions punishment, prohibited different or contained
or unusual altogether. language punishment, See Tennessee unsuccessful.
These efforts have been entirely
1050
Dicks, 126, (Tenn.) (Brock, 615 S.W.2d 132-42 C.J., dissenting), (1981);
cert. denied
2d
Hopkinson Wyoming, (Wyo. (1982). cert. 455 denied U.S. 922
C.J., concurring dissenting),
Other courts have Anderson Peterson rejected outright. challenges 335, (Miss. 1972)
v. 268 2d (“The So. 336 Anderson Mississippi, which an excellent on the
opinion, essentially subject symposium consideration, merits serious but a careful capital punishment, of it and some of the source material which isit based
study upon
does valid.”); us its conclusions are v. Anderson persuade
State, 502, (Tex. Crim.), 932 S.W.2d 509-10 cert. denied 521 U.S.
1122
We note that most courts state constitutional facing challenge death have not in an different from analysis engaged Amendment, under the required Eighth regardless of their state constitution’s cruel and/or unusual
phraseology pun Indeed,
ishment See, clause. in little at all. many engage analysis Alabama, 460, Harris v. (Ala. 352 So. 2d 475-77 Crim.
e.g, App.
1976);
Arkansas,
463,
Graham v.
462,
253 Ark.
(1972); Dickerson, Delaware v. 761, (Del. 1972); 298 A.2d 767-78 v. Florida, 826,
Raulerson (Fla.), 358 So. 2d 828-29 cert. denied (1978);
S.E.2d 650
cert.
(1982);
denied
Indiana, 1214, 478 (Ind. 1985), N.E.2d 1219-20 cert. denied 475 (1986); Edwards,
U.S. 1098 Louisiana v. 881, (La. 419 So. 2d 889
1982); Mallett, Missouri v. S.W.2d 527, 539 (Mo.), 732 cert. denied (1987);
Neb.
(1981); Ramseur, 123, New 168-82, v. 106 524 A.2d Jersey N.J. (1987); 188 Garcia, 777, New v. 771, Mexico 99 N.M. 664 P.2d
969, cert.
(1983);
Oklahoma,
denied
P.2d 743 Crim. 500 Pennsylvania v. Zettlemoyer, 16, 76-77, (1982),
Pa.
(1983); McDowell, 508, 516, 224 South Carolina v. 266 S.C. S.E.2d (1976); Austin,
889 738, 741 (Tenn.), Tennessee v. 618 S.W.2d cert. (1981); Texas,
denied
(Tex. Crim.
Gray Virginia,
(1987);
U.S. 872
(1987),
denied 484
cert.
Camp
Washington
31-35,
(1984),
cert. denied
bell, Wash. 2d *128 43, 63-64 v. 664 P.2d (1985);
U.S. 1094 Wyoming, Hopkinson 908 denied 464 U.S. cert.
(Wyo.), Punishment the Cruel and Unusual
We decline interpret of in a Bill 9 the Kansas Constitution found in of
Clause Rights § in the Amendment from that found different
manner Eighth result, we conclude that As States Constitution.
the United cruel and unusual does not constitute
death punishment penalty Constitution. se under Kansas
per 1
B. Section 1 of the the death violates § Kleypas argues
Finally, states: of The Constitution Bill
Kansas Rights. provision which and inalienable natural are of rights, among “All men equal possessed life, and the of
are liberty, happiness.” pursuit the Fourteenth from that of distinguishes language Constitution, states in which the federal
Amendment part 1:
Section life, without due of State shall any person liberty, property, any deprive “[N]or law.” of
process not which does that, federal version unlike the argues law, the above lan- of of life without due
allow process taking does in our state constitution contemplate simply
guage circumstances. He'contends the State under of life by
taking an absolute confers him die Kansas Constitution right upon
to life. a considerable the Kansas Constitution
The framers of spent ofBill 1 of the of time
amount Rights. § debating proposed however, issue debate, in the slavery. clearly grounded concern that the
Larimer, raised the One 271-85. participant pp. exhibited the higher-lawism,” “poison language
proposed the reach individuals from the effect of
would have insulating an inalienable because it law liberty.
criminal right provided over into one
Larimer, of the debate evolved 276. This p. point Larimer, slave laws in Kansas. 276- enforceability fugitive pp.
79. Another limited the debate that the lan- participant by stating did not that the of the State shall not authority
guage “propose crime,
hold the of men if have committed but they persons simply law,
that this exists and is inalienable right prior person is, it—that he cannot sell it or himself of it.”
holding dispossess
Larimer, 280. Samuel who p. Kingman, proposed language stressed that he chose the words because of
ultimately adopted,
their to those in the Declaration of similarity Independence
that he did not wish of these ideas.” Lar- “change clothing
imer, 283. p.
We note that novel, somewhat has Kleypas’ argument, though See,
been other state courts. v. Ruiz Ar- rejected soundly e.g.,
kansas, 144, 152-53, 299 Ark. (1989); S.W.2d 297 v. Missouri
Newlon, (Mo. S.W.2d 1982); 612-13 Slaughter
Oklahoma, (Okla. P.2d 861-62 1997). Crim. *129 would have this court stretch of the ven-
Kleypas meaning
erable words in of state Bill of far their § Rights beyond
intended This we decline to do. We conclude Kansas’ purpose.
death scheme does not violate the or the letter of penalty § spirit
1. Findings Mitigators
Issue 32. Failure to Make Written as to that the Kansas death scheme violates
Kleypas argues penalty
the federal and state Constitutions because it does not require to which if it factors found to specify writing any mitigating
exist of the trial. during sentencing phase argues Kleypas
such failure renders trial and review of the meaningful appellate
sentence his to due and his impossible, violating right process right
to be free from cruel and unusual punishment. 21-4624(e)
K.S.A. if its verdict is a unanimous requires jury, death,
recommendation of to designate writing statutoiy ag- circumstances it found a reasonable doubt.
gravating beyond 21-4624(f)
K.S.A. directs the trial court to review the verdict
of death to determine whether the verdict is supported Further,
evidence. K.S.A. that this court 21-4627(c)(2) provides
shall determine whether the evidence supports jury’s findings of cir- to the
with aggravating weighing mitigating regard
cumstances. that the Kansas scheme first statutory requires suggests In cites circumstances. he of
written mitigating support, findings to 21-4624(e), which the court
K.S.A. weigh mitigating requires However, this does exist.” not “which are found
factors equate circum- written findings regarding mitigating requirement 21-4624(e) does not written find- K.S.A.
stances. Clearly, require
ings. in the alternative that lack of requirement argues found to exist is a a written list
that the mitigators jury provide death fatal of Kansas’
constitutional infirmity validity penalty v. Woodson North Car-
scheme. Two cases relied by Kleypas, 944, 280, (1976);
olina,
49 L. Ed. 2d
Gardner U.S. do his factors found
(1977), argument mitigating support be written.
to exist must Woodson, States Court considered the the United Supreme whether a death sentence under statute imposed
question con- a death sentence for broad of homicides category
requiring unusual as defined
stituted cruel and Eighth punishment Amendments. 428 U.S. 287. The Court found
and Fourteenth stan- death scheme violated
the mandatory contemporary and thus fit the definition of cruel and unusual
dards of decency
Further,
punishment. in its determination whom sentence death
the jury to allow consideration of and failed
whom particularized spare 428 U.S. at and record each individual defendant.
the character
303-04. Gardner, an verdict of life
In returned advisory impris- trial court the death based in
onment. The part imposed which was contained in information presentence report re- The United States Court
disclosed to parties. Supreme of law be-
versed, that Gardner was denied due holding process that he death sentence was based in on information
cause his part 430 U.S. at or 351.
had no deny explain. opportunity
1054 assertion, neither case stands for the
Contrary Kleypas’ prop- state
osition that must its with findings respect mitigating
circumstances. Nor the other cases are cited by Kleypas persuasive. Leslie, 38, v. 708 (1985), Arizona 147 Ariz. P.2d 719 the Arizona Court did hold that “the better is for the trial
Supreme practice record, a
court to on the fist of all factors offered de- place, in
fendant and then his reasons for mitigation explain accepting However, them.” 147 Ariz. 50. the Arizona statute at
rejecting Leslie
issue in the verdict to set forth expressly required findings
as to the existence or nonexistence of aggravating mitigating
factors, a that is not in the Kansas statute. requirement present
Further, the Ninth Lewis, Circuit limited Leslie v. 38 Jeffers 411, (9th 1994), F.3d 418 Cir. that Arizona law does not finding the sentence to itemize and discuss item of evidence
require every is but not where it is clear mitigation; listing helpful necessary
the trial court considered all
evidence.
mitigation
McCormick,
reliance on Smith v.
(9th
Kleypas’ 1990),
Cir. for the same reasons. Montana similarly misplaced
law the trial court to written of fact re- required present findings determinations of circum-
garding aggravating mitigating
stances. trial court’s failure to discuss certain evi- mitigation
dence in its Circuit, to the Ninth violated the findings, according
statute and rendered the
a death sentence in-
findings supporting
complete. Again, require-
ment. to no cases which have held that the failure to
Kleypas points a written list of factors found worked a consti
require mitigating
tutional violation. To the those courts which have consid contrary,
ered the issue have found no such constitutional See requirement. Rice, 401, v. (4th
Rook 783 F.2d 1986); Cir. v. McQueen (6th 99 F.3d Cir. 1996); v. Scroggy, Blodgett, Jeffries 1180, 1196-97 (9th F.3d 1993); Cir. Parker, 27 F. Skaggs Supp. 1998).
2d (W.D. Written with to mit Ky. findings regard circumstances are not mandated either Kansas statute
igating Constitution,
or the States United arguments Kleypas’ are without merit.
contrary *131 Injection as and Unusual Punishment Cruel 33. Lethal
Issue method execution lethal in- that Kansas’ of by argues failed Amendment because Kansas has the violates Eighth
jection lethal ren- for execution
to a by injection, protocol specific adopt determine would whether lethal to it injection
dering impossible of In the absence such cruel and unusual
constitute punishment. to must be as- examination, the method
an Kleypas, according unconstitutional. and unusual and thus to be cruel
sumed 22-4001, K.S.A. in effect
With prior regard protocol,
provided: act, out a sentence “(a) of this the mode of carrying Subject provisions of a substance substances state shall be intravenous of death in this by injection in a manner. to cause death swift humane
in a sufficient quantity “(b) sen- shall out of each of corrections carrying The supervise secretary therefor, which shall be con- shall determine the tence of death and procedures laws of corrections act the other of state. The sistent with this secretary in executioners and other assist one or more necessary shall persons designate death as in this section. out the sentence of provided carrying “(c) of corrections with assistance in order to the secretary selecting provide to be in out a sentence or substances administered of substance carrying type manner, a in swift and humane secretary of intravenous death by injection of shall advise the one whom a of three shall persons secretary, panel appoint a of shall whom shall be and one whom a one of toxicologist be pharmacologist, also advise the corrections The shall be an panel secretary anesthesiologist. the call to K.S.A. 22-4015. The shall meet matters related panel upon concerning duties, and, members of their official for the panel of the secretary performance allowances, subsistence and other mileage expenses shall paid compensation, thereto. K.S.A. 75-3223 and amendments in provided “(d) in warden one of of corrections may The writing secretary designate du- under the institutions secretary’s supervision perform correctional . . .” this section . ties secretary by imposed upon (b) subsection in 1999 in statute was amended
The adding by confi- executioners be identity kept requirement (c) as follows: subsection
dential rewriting by completely or substances shall select the of substance of corrections “The secretary type out sentence of death intravenous injection to be administered carrying and environment shall health certify humane manner. swift and secretary selected that the substance or substances of corrections
to the secretary manner. If the result in death in swift and humane of corrections will secretary to be ad- or substances desires substance corrections change secretary *132 certified ministered from those of health and environ- previously secretary ment, die substance or substances also shall be certified as proposed provided 22-4001(c).
this section.” K.S.A. 1999 Supp.
The of Corrections earlier this an exe- Secretary year adopted
cution Since is directed to the Sec- Kleypas’ argument protocol. failure to establish a we do not need to address
retary’s protocol, of Kansas’ method of execution this time. constitutionality Penalty
Issue 34. under Death International Law final argument
Kleypas’ regarding constitutionality
death Kansas’ death statutes violate inter penalty penalty (1)
national two law on international law and grounds: Customary treaties international (2)
specific prohibit capital punishment; law and international international treaties
customary specific pro unit
hibit reinstatement of the death penalty by governmental
once it We has been abolished. find this to be without argument
merit. The clear of federal and state dictates that weight authority
no international law or international customary treaty prohibits
State of Kansas from the death as a invoking penalty punishment crimes.
for certain See v. 361, 106 492 U.S. L. Kentucky, Stanford 306, 109 2d (1989); Ed. S. Ct. 2969 White v. 432, 79 F.3d Johnson, (5th 1996);
439 Cir. United Woods, Mexican States v. 126 F.3d 1220, (9th 1997); Ghent, 1223 Cir. v. 43 Cal. 3d California
778-79, 82, 739 (1987); 239 Cal. P.2d 1250 v. Rptr. Domingues
Nevada, 783, 785, 114 Nev. 961 P.2d (1998); 1279 New v. Jersey
Nelson, 487, 512, 155 (1998); 715 A.2d Texas, Hinojosa N.J. (Tex. 1999). S.W.3d Crim.
Constitutional Issues —Conclusion
The Kansas intended to create a constitutional death Legislature intent, In order out we have construed K.S.A.
penalty. carry
21-4624(e) to that the circumstances must out- require aggravating circumstances in order for a death sentence
weigh mitigating
to be This construction makes it to vacate imposed. necessary Kley- sentence and remand for new However,
pas’ sentencing hearing. that,
we conclude our construction of K.S.A. 21-4624(e), given statutes the Kansas constitutional as set out in
death passes
muster. ISSUES III —SENTENCING
PART errors arise final during pen- Kleypas’ assigned group under K.S.A. 21- sentencing proceeding
alty separate phase be sentenced to should
4624(b). determined The jury contained
death. Given our weighing equation interpretation be vacated and a new 21-4624(e), sentence must
in K.S.A. Kleypas’ However, to address we choose conducted.
sentencing hearing that have the reoc- issues raised by Kleypas potential
sentencing to the trial court for the new sen-
cur in order give guidance *133 Therefore, issues: we will the following analyze hearing.
tencing a Failure to Move for
State’s Separate Sentencing Hearing the Verdict
Verdict Forms and Instructions Regarding Prior Conviction of Circumstances
Admission Regarding of Prison Conditions to Allow Evidence
Failure
Instruction on the Definition Mitigation Phase Instructions Prevented
Whether the Jury Penalty Circumstances
from Considering Mitigating that for of Sentences
Failure to Inform Might Jury Imposed
Other Convictions Instruction to Give
Failure Inconsistency Limiting Regarding Atrocious, Heinous, or Cruel Manner
Between Aggravating Circumstance Arrest
Circumstance and Avoiding Aggravating Phase in the
Prosecutorial Misconduct Penalty Sentencing a to Move for Hear- 35. State’s Failure Issue Separate
m is of his trial that the entire contends penalty phase a State to move for because the failed
unlawful sentencing separate 21-4624(b). K.S.A. conviction his required upon
proceeding to do so the State’s failure
He imposition precludes argues a death sentence. 25, 1997, verdict returned
On finding Kleypas July to return trial court ordered murder. The
guilty capital On 29, 1997, for July sentencing proceeding. July capital sworn, State’s after the first witness was immediately that the be dis-
objected requested juiy proceeding He based his the State’s failure to move
charged. objection upon 21-4624(b)
under K.S.A. sentencing separate proceeding
determine whether he should be sentenced to death. The State that the notice had been
argued required given arraignment 21-4624(a). alternative, to K.S.A. In the the State
pursuant orally 21-4624(b)
moved to K.S.A. for a pursuant separate sentencing The trial court overruled the
proceeding. objection, finding
notice had been the State. given by 21-4624(b)
In relevant K.S.A. convic- part, provides “upon murder,
tion of a defendant of the court motion of capital upon or district shall conduct a county attorney, separate sentencing to determine whether the defendant shall be sentenced
proceeding added.)
to death.” is It not to confuse this (Emphasis important
motion with the notice of K.S.A. 21- requirement requirements
4624(a). A failure to with the notice comply following requirements 21-4624(a)
of K.S.A. of the death precludes imposition penalty: murder, “If a defendant is with or district charged capital county attorney intends, shall file defendant, wxitten notice if such conviction of the attorney upon request determine whether the defendant separate sentencing proceeding
should be sentenced to death. Such notice shall be filed with the court and served on the defendant or the defendant’s not later than five attorney, after the days time of such notice not and served as arraignment. required by If filed subsection, the or district county such a attorney may request sentencing *134 murder, and the defendant, convicted shall be proceeding sentenced capital if of law, as otherwise and no sentence death shall be provided by here- imposed of added).
under." (Emphasis
The State filed its notice under the of K.S.A. 21- provisions
4624(a). However, out that the State failed Kleypas correctly points
to move for a after his conviction separate sentencing proceeding
of 21-4624(b) murder under K.S.A. before the sen- capital separate commenced. Does this failure invalidate the
tencing proceeding
separate sentencing proceeding? that the State’s failure the
Kleypas argues precludes imposition
aof death sentence and that he now must be sentenced the a
court for term of The State its failure to years. acknowledges
1059 21-4624(b) but of K.S.A. with the motion argues provisions comply of K.S.A. notice
that this unlike provisions mandatory provision, of law and our
21-4624(a), The is one is directory question only. 843, 847, Lewis, 953 P. 2d State v. 263 Kan. is unlimited.
review a the issue involves determination (1998). The resolution of 21-4624(b) is of K.S.A. man-
of whether the language procedural or
datory directory. be a statute should deemed criteria for whether determining Deavers, v. State Kan. is established in or directory
mandatory
(1993):
167,
U.S. 978
(1992), cert. denied 508
on a basis and the criterion mandatory case-by-case requirement such is essential or is whether with preserve directory compliance requirement 168, 174, (1982). 232 Kan. P.2d of the rights parties. Rogers, Griffin is a is or it whether a directory, mandatory determining legislative provision is essential rule that where strict with provision compliance general of the of of affected and to the validity proceeding, rights preservation parties a mode of is but fixes where proceeding mandatory, provision provision done, to secure and is intended and a time which an official act is within business, order, is directory. dispatch public provision system, of a statute or ordinance are would that the Factors which indicate provisions (1) an act shall be words are: mandatory negative requiring presence (2) a time than that done in no other manner or no other designated, pro Paul v. City
vision
or other
for
noncompliance.”
penally
consequence
1, 2,
Manhattan,
212 Kan.
We conclude motion requirement does not establish The statute
is spe- mandatory. directory, motion
cific time within which separate prosecution’s made; rather, the motion must be require- proceeding
sentencing
ment intended to secure the systematic dispatch orderly found in K.S.A. Unlike the notice business. provisions public 21-4624(b) for a
21-4624(a), are no in K.S.A. there pen- provisions its lan- with or other By express
alty consequences noncompliance. 21-4624(b) fixes mode of K.S.A. directing proceeding
guage, The State’s
State to move for a sentencing proceeding. separate to the defend- caused no so in this case
delay moving prejudice aside the to set court’s motion
ant. The trial denial Kleypas’ was not error.
sentencing proceeding
Issue 36. Verdict Forms and the Instructions Verdict Regarding that the verdict forms and the trial court’s in- argues
structions the verdict were in that in- concerning improper they
structed the that a unanimous decision was in order jury required life sentence. He that this is to Kansas impose argues contrary
law. We have reviewed the trial court’s instructions the concerning and the
verdict verdict forms the conclude provided juxy are deficient. seriously they verdict,
We with a recitation of the statute begin regarding 21-4624(e),
K.S.A. which provides: “If, vote, unanimous finds reasonable doubt that one or jury beyond
more of the circumstances enumerated K.S.A. 21-4625 and amend- aggravating and, further, ments thereto exist that the existence of such circum- aggravating stances circumstances which are found to outweighed by any mitigating is exist, death; otherwise, the defendant shall be sentenced to the defendant shall be sentenced as law. its The if verdict provided is unanimous recom- jury, death, mendation of a sentence of shall the foreman designate writing, signed by of the tire circumstances which it found jury, statutory rea- aggravating beyond If, deliberation, sonable doubt. after a reasonable time for is unable to jury verdict,
reach a shall dismiss the a sentence of judge jury impose impris- onment as law and shall commit the defendant provided by custody cases, of corrections. In die secretary court shall follow the nonjury requirements of this subsection in the sentence to be determining imposed.”
We note that to our decision pursuant regarding weighing must find the circumstances out-
equation, jury aggravating circumstances rather than that the
weigh mitigating aggravating
circumstances are not circumstances. outweighed by mitigating
However, does not affect the substance of our of this analysis
issue. The with the verdict form lies not with major problem given
its recitation this statement is weighing equation, although incorrect our construction of the
certainly given weighing equation Rather,
above. with the verdict form major problem given
the manner in it which to reach and its requires report
decision. under our murder scheme sentencing proceeding capital
has but one To determine whether the defendant should purpose:
be sentenced to death. 21-4624(b). See K.S.A. Under K.S.A. 21- two are Either the will unan- only options contemplated: *136 one or a doubt that more reasonable aggra- beyond
imously agree that such and further exist circumstances aggravating
vating circum- or circumstances
circumstance outweigh mitigating the de- to exist and it sentences found or circumstances
stance death; and the to so find or the fails
fendant unanimously jury to death. sentenced
defendant is not our decision in State verdict is illustrated
The nature
by
825,
(1994), a
case
under the Stafford, pre-death a dur- the trial court excused a situation where
we examined juror could on the that deliberations juror grounds
ing sentencing error, to be reversible this action
not reach a decision. finding
we noted: a has been from cases in which replaced. "This case differs somewhat prior juror in the neither a results defendant For a hung jury being determining guilt, jury and a leaves case undecided subject convicted nor jury hung acquitted; statute, context, a is not undecided hard 40 an jury. By
retrial. In the hung jury 21-4624[5]), (K.S.A. a a results in sentence imprisonment hung jury Supp. Thus, to cause a who jury for life with replace juror may eligibility parole. vote to 40 sentence is unanimous recommend hard to be unable reach aof verdict.” the defendant deprive case, the trial court in this No.
Instruction by explained given
the two jury, stating: options deliberations, verdict form shall upon
"At the conclusion sign your you
which you agree. verdicts: alternative “The verdict forms provide following are one or more reasonable doubt that there "A. unanimously Finding beyond circumstance(s) circum- any they [outweigh] mitigating aggravating death; stance^), the defendant and sentencing "or circumstance(s) any mitigat- doubt [outweigh] "B. Reasonable aggravating circumstance(s) that the defendant should be sentenced provided by ing
law the Court.” be confronted that it would No. 15 informed
Instruction the two choices mandated two verdict forms
with reflecting a rea- 21-4624(e): It would either find
K.S.A. beyond unanimously circum- one or more there are doubt that
sonable aggravating circumstance(s),
stance^) and they [outweigh] mitigating it
in which case would verdict form the de- sign sentencing
fendant death and on the verdict form the designate aggravating found; or it would fail to
circumstances make such finding, the verdict
which case it would form the defendant sign indicating to death.
should not sentenced
However, the verdict forms in this case did not give
those two The first verdict form stated: options.
“We, sworn, oath, affirmation, do our unani- jury, impaneled upon *137 a reasonable doubt that find circum- mously beyond following aggravating stance^) have been established the evidence and by [outweigh] mitigating (The circumstance(s) found to exist. shall Xan in the juror presiding place square circumstance(s) exist.)
in front of such found to aggravating That the defendant convicted of a
“[ ] which the de- previously felony harm, fendant inflicted bodily dismemberment great disfigurement,
death on another. That the committed defendant the crime in order to
“[ ] avoid or a prevent lawful arrest or prosecution. atrocious, That the defendant committed the crime in an
“[ ] heinous especially or cruel manner as these terms are defined in No. Instruction 11. so, therefore, sentence the defendant to death.”
“[A]nd unanimously
Thus, the first verdict form stated the first of the two accurately however,
choices. The was with the second verdict form problem, which should have it that was to be
given jury provided if the did not find the existence of
signed jury unanimously aggra- circumstances which circum-
vating outweighed any mitigating Instead, “We,
stances. verdict form stated: the jury, impaneled sworn, affirmation, do our oath or deter- upon unanimously
mine that a as sentence law be the Court.” by provided imposed by
Thus, the second verdict form informed the erroneously jury
that it had to a sentence other than death unanimously agree
should be This to Kansas law and further di- contrary imposed. above, contradicts Instruction No. 15. As noted K.S.A. 21-
rectly
4624 does not conclude that a require jury unanimously
death sentence is unwarranted in order to sentence the defendant death; rather,
to a other than must fail punishment jury only conclude a reasonable doubt a that death unanimously beyond
sentence is warranted. from the this case were taken forms used in
The verdict directly (PIK). PIK 3d 68.14-B- Kansas See Crim.
Pattern Instructions have advised trial courts to follow PIK 1; 68.17. We PIK Crim. 3d “ have been devel- instructions
and for reason. pattern good committee bring accuracy, clarity, knowledgeable by
oped ” Dias, 331, 335, instructions/ State Kan. uniformity jury However, second verdict form used in
this provided also The verdict form was unclear in Kansas.
to reflect law it should do if it did not reach failed to what
that it inform jury verdict for life. The verdict for death or unanimous unanimous in that it contradicted In-
verdict form was directly jury confusing what the verdict form No. which informed
struction was inconsistent with Kansas law The verdict form
should contain.
and was misleading confusing. with verdict form the trial brought problem The trial court attention at the
court’s sentencing hearing. recog- existed and cure
nized that attempted problem problem that if instruction which informed the an additional
by issuing verdict, would be sentenced
it to reach a failed provided used the court in Wash- law. similar to the instruction This is *138 Benn, Restraint 134 Wash. 2d in In re Personal
ington Benn, a (1998). was verdict form which P.2d 116 jury given de- in mind the crime of which the
asked the “Having question: are convinced a rea-
fendant has been found you beyond guilty, are not sufficient circum-
sonable doubt there mitigating was then with three
stances to merit leniency?”
jury
provided
“NO,”
TES,”
IS UNABLE TO UNAN-
and “THE
options:
JURY
Su-
IMOUSLY AGREE.” Washington that because the verdict form Court found jury gave
preme verdict, the instruction was of a nonunanimous challenged
option 2d at 932. 134 Wash.
constitutional. Benn, in the case the corrective instruction
In contrast jury form itself still did not was an instruction. The verdict hand just it could a nonunanimous a which method juiy register
give law, Kansas one has
verdict. It is clear that under ability juror a reason- of the death having penalty negate imposition doubt about 21-4624(e)
able its See K.S.A. propriety. (unanimity However, the death under the verdict
required impose penalty). case, a
form used in this was unable to his or her juror register
reasonable doubt. Even the trial court informed the though jury
that its failure to reach unanimous verdict would result in the death, of a sentence other than the verdict form
imposition pro-
vided no for the to return other than unanimous verdict. way jury
The sole is to determine whether purpose penalty phase
the defendant should be sentenced death. The erroneous verdict
form affected the heart of this decision because it very incorrectly
stated the standard that the was to its jury apply considering circumstances,
decision. such Under the verdict form materially to a fair trial. we Had deter-
prejudiced Kleypas’ right already
mined new the use of this sentencing hearing required, instruction would also death sen- require vacating Kleypas’ tence and for a new See Kubat remanding penalty hearing. phase Thieret, State v. (7th 1989); 867 F.2d 372-74 Brooks, Cir. 148, 162,
75 Ohio St. 3d N.E.2d 1030 decision,
In accordance with our we further hold that the fol- second verdict form should be used in addition to the first
lowing
verdict Kansas, form in all death cases in PIK replacing
Crim. 3d 68.17:
“CAPITAL MURDER —SENTENCE OF DEATH —VERDICT FORM FOR
SENTENCE AS PROVIDED BY LAW
“SENTENCING VERDICT “We, sworn, die do our oath or state jury, impaneled affirmation upon
we are unable to reach a unanimous verdict the defendant to death.” sentencing
Such an instruction reflects the law in Kansas and the accurately The instruction does not confuse the
responsibility juiy. need for decision life to be unanimous.
concerning any regarding within the verdict form is the that a
Implicit single concept juror block a death verdict and the verdict form allows a
may juror effect to his or her determination that death is not an
give appro- sentence.
priate *139 Regarding
Issue 37. Admission of Circumstances Prior Conviction that the trial court erred in evidence of argues
Kleypas allowing
the circumstances his 1977 conviction for the murder underlying violated the contends that such evidence He Bessie Lawrence. 21-4625(1), as his and Four- as well of K.S.A. Eighth
provisions States Constitution under United
teenth Amendment rights Bill 18 of the Kansas Constitution 9 and
and his under §§ rights
Rights. of evidence of the a to limit the filed motion production
Kleypas of the to the admission circumstance conviction” aggravating
“prior a considera- After of the conviction. comprehensive entry
journal law, it would not allow case the court ruled that
tion of although to be some murder conviction relitigated, second-degree prior would be conviction circumstances prior underlying discretion a witness to the court’s
admitted into evidence subject witness basis. he was convicted of offered previously stipulate a conviction was murder and that this felony
second-degree However, re- the trial court death on another.
which he inflicted
fused to force the State stipulation. accept the State 21-4625 identifies and limits what
K.S.A. may prove of a circumstances capital phase during
aggravating al- we now consider circumstance
murder case. The aggravating State to defendant
lows the establish “[t]he previously inflicted which the defendant
convicted bodily great felony
harm, on another.” K.S.A. or death dismemberment disfigurement,
21-4625(1). his circumstances that the facts and underlying argues in He conviction are irrelevant
1977 murder inflammatory. con fact of the 21-4625(1) to allow K.S.A. only prior
terprets circumstance, that once he
viction aggravating prove circumstance, other information
offered to stipulate murder was relevant. Kleypas, According
concerning Old have forced to his
State should been citing stipulation, accept 574, 117 States, 172, 136 S. Ct. U.S. L. Ed. 2d v. United
Chief 644 of assault with dan- was convicted
In Old the defendant Chief, firearm, firearm use of a
gerous possession weapon, trial, he moved for conviction. Before with felony
anyone prior state- limit to a its evidence
an order requiring government
ment that Old Chief had been convicted aof He offered felony.
to that he had been convicted of a stipulate prior felony. gov- refused to
ernment the its accept stipulation, insisting right the case its own The district court with the way.
prove agreed and the Ninth Circuit Court of affirmed. The
government Appeals Court, however,
United States reversed: Supreme of a trial discretion under Rule . . . scope authorizes exclu- judge’s “[T]he of sion relevant evidence when its value is ‘probative substantially by outweighed issues, of unfair confusion of the or or danger prejudice, jury, misleading time, considerations of undue waste of cu-
by
needless
of
delay,
presentation
mulative evidence.’ Fed. Rule Evid. 403.”
The Court to the real risk of unfair pointed prejudice, noting a
such risk be “will substantial whenever the official record offered the Government would a a lure into arresting of bad character enough juror sequence reasoning.
aWhere
a
conviction was for
crime or one similar to other
prior
gun
charges
pending
prejudice
especially
case the risk of unfair
would be
. . . .”
obvious
In order to the Court concluded: mitigate against “Given these of the element of status and ad- of peculiarities felony-convict it, missions and die like when used to there nois difference prove cognizable between the of an admission and of the evidentiary significance legitimately pro- bative of the official component record would prosecution prefer place evidence. For of the Rule 403 purposes weighing probative against functions prejudicial, evidence are competing distinguishable only the risk case, inherent in the one and absent from the other. In this as in wholly other in which conviction is for an offense conviction prior likely support (hat on some reasonable conclusion was improper ground, risk only
unfair did prejudice the discounted value substantially outweigh probative conviction, record of and it was an abuse of discretion admit the record when an admission was available.” U.S. at 191.
Before error, the merits of claimed some addressing Kleypas’ of how circumstances fit within Kansas’
background aggravating
scheme of is Kansas’ death capita] punishment necessary. statutory Florida; similar to that states those similar having scheme are sometimes referred to as the “Florida
statutory type”
in that limit the circumstances that they aggravating sentencing or a to a consider list. See National judge may statutory Judicial Cases State Trial and Conference Judges, Capital
College Because the Florida
Benchbook, (1994); K.S.A. 21-4625. 6-2 considered, ev- to be circumstances
scheme limits aggravating is relevant under scheme criminal
idence of only history prior cir- either as it
insofar statutory establishing aggravating goes *141 a one. or
cumstance rebutting mitigating scheme, states which followthe Florida those sentencing
Among toas whether is a difference of
there testimony regarding opinion a conviction circumstances of defendant’s
the may prior underlying where the de to an circumstance
be admitted prove aggravating See to circumstance. offers
fendant stipulate aggravating Gillies, State, (Fla. 1989); v. 135 So. 2d State
Rhodes v.
547
1201
Davis,
(1983);
v.
Ariz. People Rose, 172, (1994); S.E.2d
(Colo. 1990); State v.
339 N.C.
451
211
1982);
State,
(Okla. Crim.
Com. v.
Brewer v. App. Gaskins, (1998); v. 284 786 State 554 Pa. A.2d
Rompilla, (1985); State S.W.2d
S.C.
(Tenn. 1994). Gillies, was Court held that the Arizona testimony Supreme that to circumstance admissible establish the then-aggravating of a had been convicted
the defendant felony involving previously (since to use violence on another
the or threat of changed person that at 511. The instead found offense”).
“a 135 Ariz. court serous of conviction itself: be to evidence the
the evidence should limited a defendant. due to criminal “This the statute guarantees process reading reliable, had his trial and a the defendant
Evidence of conviction having prior However, to his conviction. full which exercised his rights accompany panoply element of in a crime to establish the victim prior necessary drag appellant’s committed, of a after crime has been
violence outside the jury, long presence basic of due
violates the
tenants
process.
effect,
is,
what
trial on defendant’s
“. . . We cannot allow
second
prior
13-703(F)(2)
an
cir-
the existence of A.R.S.
conviction to establish
aggravating
§
cumstance.” for the admis- has established
Oklahoma judicially procedure that the de- circumstance
sion of evidence to its aggravating prove use the or of a convicted
fendant felony involving previously Brewer, Brewer,
threat of violence. See
Oklahoma Supreme “We hold therefore that the must be the the following procedure concerning 1981, 701.12(1) of 21 O.S. State’s in this and all future cases: allegation capital § First, as mandated 701.10 the defendant be due by must notice all given § second, State evidence in intends must re- present; aggravation judge die view evidence State in by its in camera to proffered support allegation felonies indeed ensure did involve the use threat of violence to a third, die court that the did upon convictions person; finding prior felony or threat involve the use of violence to the the defendant must be person, given conviction(s) opportunity personally stipulate prior felony alleged the state did involve die use or threat of violence to a Counsel person. defendant must not be allowed to for him. The must himself stipulate judge satisfy diat the defendant understands die nature of the appreciates proposed stip- ulation and the from eitiier an or a consequences potentially arising agreement refusal before he the defendant’s may decision. stipulate accept “If the defendant the State’s circumstances stipulates, proof aggravating must limited to introduction of the sentence felonies judgment prior with the defendant’s written that the felonies involved the along use stipulation or direát of violence If the defendant refuses to so person. stipulate, State shall be evidence sufficient permitted produce prove prior *142 felonies did involve the use threat of violence to the We person. emphasize trial courts should exercise informed prosecutors discretion in permitting the minimal amount of evidence to only the support circumstances. aggravating
We do not
authorize the State to
defendants for
today
re-try
crimes
past
during
the
of
cases.”
Similarly, Supreme “Evidence of a facts conviction to show that it previous in fact involved regarding
violence or the threat of violence the is admissible at a person sentencing in order to establish the hearing circumstance. aggravating [Citations omitted.] However, it is not admit evidence facts of the appropriate regarding specific conviction, crime the when the conviction on resulting previous its face shows it involved violence of or threat violence to the [Citations person. omitted.]” at S.W.2d 811. Bigbee,
The Tennessee Court in noted that while evi- Supreme Bigbee
dence the victim of the crime for which the defendant regarding relevant,
is
sentenced is
evidence
the victim of a
being
regarding
crime is not.
prior
Florida, as well as several other has concluded oth- jurisdictions, Bhodes,
erwise. In the Florida Court set forth follow- the Supreme evidence to show a stat- the admission of
ing governing principles that a defendant had been circumstance
utory aggravating a convicted of violent felony:
previously of trial introduce is in the testimony phase capital
“[I]t appropriate penalty conviction the use or threat the details of felony involving any prior concerning of conviction. to the rather than bare admission [Citations violence person events which resulted in the conviction assist concerning omitted.] Testimony of the defendant and the circumstances of tire the character jury evaluating can as to the crime so that the make an informed recommendation appro- sentence.
priate relevant, when that rise to line must be drawn gives testimony “[T]he or the value
violation of a defendant’s confrontational rights, prejudicial outweighs 2d at value.” 547 So. 1204-05. probative
Colorado, South Carolina also allow evidence Pennsylvania, of the crime where
of some of the circumstances underlying prior circumstance. Colorado has
such crime is statutory aggravating evidence
held that such evidence is of the relevant concern "part crime, character, the nature of the [and] background,
ing it allowed of the defendant” which is to receive
history statutorily Davis, 16-11-103(1)(b). Rev. Stat. Ann. 794 P.2d
under Colo. §
202. facts con- has held that Pennsylvania underlying prior to allow the to ‘"assessthe
viction are relevant
weight
given aggravating “ evidence because the "consideration Carolina allows such individual, of the offender and circum-
character and record offense constitutional stances [are] particular indispensable ” Gaskins, of death.’ inflicting
part process Carolina, U.S. Woodson North
K.S.A. sentencing proceeding, provides: *143 matter that the court
idence concerning any may presented sentence and shall include mat-
deems relevant question enumerated
ters to of the circumstances relating aggravating thereto and cir-
in K.S.A. and amendments 21-4625 any mitigating to the statute in Colo- is similar
cumstances.” This very language to Court allow
rado which the Colorado interpreted Supreme
admission of the circumstances violent felonies underlying prior
in Davis. See P.2d at 202. The above is included language
in the statutes of Arizona and Oklahoma. See capital sentencing 13-703; Stat., Rev. (1991),
Ariz. Stat. Okla. tit. 701.10 which § § contribute their Courts such evidence.
might Supreme excluding
However, Tennessee’s statute contains the same and its language Court excludes such See evidence. Tenn. Code. Ann.
Supreme §
39-13-204.
While there is merit in the of the position jurisdictions excluding
such evidence where the defendant offers to we are stipulate,
called of our upon interpret specific language legislature.
We conclude Kansas intended its use of the Legislature
broad K.S.A. 21-4625 allow some evidence of the language circumstances of convictions where the convic-
underlying prior
tions constitute circumstances. This conclusion is con- aggravating
sistent with the Kansas scheme which that the statutory requires ain
sentencing jury actually capital proceeding weigh aggra- circumstances circumstances in de-
vating against mitigating whether defendant should be sentenced to death.
termining in Kansas is more than a weighing process simple compar-
ison of the number of circumstances to the number of aggravating circumstances. The as well as the
mitigating quality quantity is circumstances relevant to allow the
aggravating mitigating to “assess the to be factor.” weight given aggravating
See Pa. at 394. A defendant with a Rompilla, prior history
which includes a heinous crime more of death perhaps worthy
than a who committed defendant a crime which was not heinous. Court,
As stated the Florida that evi- Supreme concluding
dence circumstances of the con- concerning underlying prior
viction admissible: so “This is because we believe the for and miti- purpose considering aggravating circumstances is to ain character of the defendant gating analysis as- engage certain whether the ultimate is called in his or her case. particular to commit violent crimes must be valid Propensity consideration for surely is a It matter that can contribute to decisions judge. sentence will which lead to uniform treatment and eliminate ‘total arbitrariness and help ” State, in the of the death capriciousness 346 So. imposition penalty.’ Elledge
1071
Florida,
242,
1997)
2d
v.
998,
(Fla.
49
Ed.
428 U.S.
L.
2d
1001
(quoting Proffitt
913,
[1976]).
See also State Taylor, to its decision from reaching Elledge support
(quoting passage result).
same ev- to introduce
We the State is and hold that permitted agree crime of the circumstances
idence prior underlying regarding in K.S.A. 21- contained
to circumstance satisfy aggravating ex-
4625(1), a defendant’s offer stipulate notwithstanding However, must trial courts
istence of the circumstance. aggravating and exclude evidence in the admission of such evidence cautious relevant, confrontational that violates defendant’s
that not its effect has probative outweighing
rights, prejudicial in case did not admitted
value. We conclude that the evidence
constitute error. prejudicial of Prison Conditions
Issue 38. Failure Allow Evidence to allow court contends that the trial erred by refusing
Kleypas testi- and the of future incarceration
evidence the conditions as what would be like life of Corrections Secretary
mony violated his that this refusal Kleypas argues Kleypas prison. would have constituted as the evidence Amendment
Eighth rights struc- would be a evidence highly by showing prison
mitigating
tured environment. commenced, trial months before
Approximately the conditions of evidence
moved for admission regarding a life the Kansas correctional
effects of sentence in system. Kleypas in an ef- of Corrections
also Secretary subpoena attempted would be about what life to obtain and information
fort provide before trial months
like for Approximately prison.
commenced, and also trial the motion court denied quashed for the of Corrections testify Secretary appear subpoena life.
regarding prison its conclusion based
The trial court excluded evidence upon it because evidence evidence mitigating proper Two of the defendant. characteristics
did not bear on the individual See conclusion.
other have reached similar states People recently Ervin,
v.
48, 97,
22 Cal. 4th
91 Cal.
2d
(2000); 309-310, 257 Va. . (1999) S.E.2d 642 *145 Cherrix, the defendant to introduce evi- sought mitigating
dence of an several Vir- through testimony expert penologist, officials, corrections a a and an in-
ginia sociologist, criminologist, a
dividual life sentence in the of the serving custody Virginia of Corrections life and its effect on
Department regarding prison
his “future that the court did not trial err dangerousness.” Finding
in evidence, Court stated: excluding Virginia Supreme the United States Constitution the defendant in a “Although guarantees capital a case to evidence to the it does not right present mitigating sentencing authority, exclude, irrelevant, limit ‘the traditional of a court to evidence not authority character, record, on the defendant’s or the circumstances of his bearing prior Ohio, 19.2-264.4(B) offense.’ Lockett v. 438 U.S. 605 n.12 Code § determine,
vests the trial court with the discretion to to the rules of evi- subject
dence the evidence adduced which be in governing admissibility, may mitigation of die offense. [Citation omitted.] record shows that “The the evidence Cherrix to introduce involved the sought establish, nature of life. The inmate’s general to prison proffered testimony sought based on the inmate’s what life would be like personal prison experience, prison for Cherrix if he a received life sentence. The officials from of Department Corrections would have testified of the to con- system regarding ability penal tain Cherrix and the cost to the of an inmate’s life sentence. Cherrix’s taxpayers counsel stated that the of the and the testimony expert penologist, sociologist, would be similar to of die diat inmate and corrections officials. criminologist As observed,
die trial court none of this evidence concerns the history experience of the defendant. We with the conclusion of trial court that a ‘what agree in the person not may expect relevant evidence. Ac- penal system’ mitigation we will affirm the cordingly, trial court this evidence.” judgment excluding
sertion, none the evidence addressed trial Cherrix’s proffered to life, conform or his in
ability experience conforming prison
as the defendant’s evidence South Carolina], did Skipper [v.
U.S. at 4.” Va. at 310 n.4. evidence life was essential as
Kleypas argues prison part
of his evidence that would he well presentation mitigating adapt
to life in his of this mit- prison. According Kleypas, presentation failure” without this evidence “doomed circumstance
igating that he would function he could evidence
because although present environment, this would not over- a structured
well in highly prison a held was not
come prison highly generally perspective rather, but, a club.” The essence environment
structured “country conditions was is not that evidence prison Kleypas’ argument rather, but, it was allow
a circumstance necessary mitigating do that he would well to establish the circumstance
him mitigating
in prison. well and will in
Evidence that defendant is behaved prison well behaved is circumstance.
the future be Skipper mitigating Carolina, 4-5, 1, 106 2d S. Ct. 1669 South 476 U.S. L. Ed.
(1986) that “evidence that defendant would pose (stating must be considered if incarcerated] [but
danger spared potentially However, evidence that Kleypas sought pres
mitigating.”). life,
ent, is too far removed conditions of general prison *146 Such evidence ad as a circumstance.
relevant might mitigating to evidence in counter actual
missible rebuttal produced Solomon, that life is in fact See A
State in easy. showing prison Death: A Punishment Capital Symposium
Quarter-Century of (1999) 555 Furman v. 12 Def. Since Georgia, Cap. Virginia J. Amendment that the mitigation rejection (noting Eighth effects the Fourteenth Amendment in no way argument
argument assertions). to be used rebut evidence may prosecutorial to counsel the defendant did seek introduce
We note that but its admission on the
such evidence in rebuttal grounds sought trial court did not err evidence. The
that it mitigating proper this evidence.
in excluding Mitigation 39. on the Definition of
Issue Instruction 13, Instruction No. contends defining mitigat-
Kleypas jury circumstances, allowed the juiy reject alleged impermissibly
ing the evidence without first circumstances considering
mitigating to the and that this is
favor of die circumstances Eighth contrary
Amendment, Amendments to as well as the Fifth and Fourteenth United States Constitution.
1074
As we have noted when previously reviewing challenges jury
instructions, this court is to consider all the instructions required whole, read as a and not to isolate one instruction. If
together,
the instructions state the law as properly fairly applied
facts of the case could not them, be misled jury reasonably
the instructions do not constitute reversible error even if are they Mims, erroneous. State v.
in some 506, 514, 264 Kan. 956 P.2d way (1998).
1337
Instruction No. 13 defined circumstances: mitigating circumstances are those which in fairness “Mitigating be considered as may or of moral extenuating reducing degree blame or which culpability justified death, a sentence of less than it does not or excuse the although offense. justify The determination of what are circumstances is for mitigating you jurors
resolve under the facts and circumstance of this case.” that the above the last argues sen-
Kleypas language, particularly
tence, allows the what determine unconstitutionally jury quali-
fies as a circumstance. that under the mitigating argues Amendment, must consider each claimed
Eighth jury mitigat- circumstance and the evidence to it.
ing support According Kley- is free to find that no evidence such a cir-
pas, supports little,
cumstance toor if circumstance, but give any, weight is not free to find that the circumstance is not a mitigating circumstance. In contention, of this cites Lockett support Ohio,
v. 586, 438 U.S. 57 L. 973, Ed. 2d 98 S. (1978), Ct. 2954
and its Oklahoma, v. 104, 455 U.S. 71 progeny, including Eddings 1,
L. Ed. 2d 102 S. (1982), Ct. 869 v. Penry Lynaugh,
U.S. 106 L. Ed. 2d 109 S. Ct. the above cases. In Texas, Kleypas misinterprets Johnson 350, 361, 125
U.S. 290, 113 L. Ed. 2d S. Ct. (1993), the Court
made clear: *147 “ ‘Lockett and its stand for the progeny that a only State not cut proposition may off in an absolute evidence, manner the presentation either statute mitigating instruction, or or judicial by limiting which it is relevant so inquiries severely
that the evidence could never be a at part decision all.’ sentencing [Citations omitted.]” in Lockett or of its that a consider
Nothing any progeny require jury
all circumstances; rather, possible mitigating they simply preclude such consideration. The sentencer
the State from may foreclosing law, consider, evi as matter of relevant refuse to
not mitigating However, free at the sentencer is U.S. 114.
dence. Eddings, to be are circumstances claimed
to conclude that some mitigating the sen circumstances.
not Eddings only precludes mitigating that not certain from it consider
tencer may determining legally In Ed evidence. See 455 U.S. 113-15. circumstances
mitigating was determined that he judge prevented
dings, sentencing aas mit from violent
law petitioner’s upbringing considering Court that this restriction violated circumstance. The found
igating
Lockett,
as evidence of the
was relevant
petitioner’s upbringing
In Buchanan Angelone,
702, 118 (1998), held Amend S. Ct. Court that Eighth facts does not be instructed certain
ment require jury discretion with
are jury regards mitigating mitigating. Complete Thus, a
circumstances evidence constitutionally jury permissible. to be itself circumstances it chooses
is free determine for what and whether the evidence of those circumstances is suf
mitigating
ficient. No. did not to find
Instruction restrict discretion jury’s circumstances or foreclose the
the existence jury’s mitigating the 31 cir- evidence. It listed
consideration mitigating expressly and
cumstances claimed as circumstances by mitigating further consider as instructed that the
further jury mitigat- “may circumstance(s) character, other of the defendant’s any
ing aspect record, which or other of the offense aspect
background, and that find in either you guilt penalty phase presented The trial instruction
to be relevant.” court’s fairly properly for a claimed constitutional law no basis
stated the provides
deprivation. Penalty 40. Whether the Phase Instructions Prevented
Issue
Jury Considering Mitigating Circumstances. from that the instructions given argues prevented did circumstance
from considering any mitigating He that under the instructions find existed. contends
unanimously
1076 could have determined given, sentencing jury reasonably
that it must on the existence of cir- unanimously agree mitigating
cumstances. v. 367, 384,
In Mills U.S. 100 486 L. Ed. 2d 108 S. Maryland, (1988), 1860
Ct. the United States Court vacated the Supreme death sentence because it found that the verdict form
petitioner’s
had from relevant mit- potentially prevented jury considering find evidence that the did not to exist.
igating juiy unanimously
The Court found verdict form suggested had
it find each circumstance. unanimously mitigating that,
Court stated under the verdict form: hypothetically, “ circumstances, 'If eleven that there are six jurors agree the result is mitigating that no circumstance is found. there is mitigating Consequently, nothing weigh circumstance found and the is death against aggravating even judgment ” eleven think the death though jurors 486 U.S. at penalty wholly inappropriate.’
373-74. that,
The Court further found all 12 hypothetically, jurors might that some circumstances were and even
agree mitigating present
that those circumstances were sufficient to mitigating outweigh any exist, circumstances found to but unless all 12 could
aggravating that the same circumstance
agree mitigating present,
would never in the 486 permitted engage weighing process. at
U.S. 374.
The Court thus concluded that a death sentence should be va
cated if there was a substantial that reasonable probability jurors, instructions receiving
upon judge’s attempting complete
the verdict form instructions, based on those have may thought could those consider circumstances which they only mitigating found to exist. 486 at U.S. 376-77. If the
they unanimously jurors
were led to believe that could not each consider they individually
certain circumstances because there was not unanimous mitigating as to circumstances, the existence of those then “some
agreement were from ‘factors which call for
jurors prevented considering may Ohio,
a less severe v. U.S., 605, Lockett 438 penalty,’ peti
tioner’s sentence cannot stand.”
Fulcomer, (3rd 1997), 132 F.3d Cir. cert. denied 524 U.S. (1998). Caro North in Mills was reaffirmed in
The decision McKoy
lina, S. 433, 108 L. 2d 110 Ct. 1227 U.S. Ed. *149 to a mit held that it is unconstitutional the Court
McKoy,
require
to be
igating consider, the and the court
In the case we now during parties conference discussed Mills in the to
an instruction satisfy attempt instruction,
its following requirement. parties agreed 12:
which became Instruction No. all facts and circumstances
“It is that not necessary jurors agree upon particular of
in mitigation punishment. are “If as a determine that there facts circumstances in you juror mitigation circumstances, the of of sufficient to evidence aggravating punishment outweigh death.” not return verdict of then must you in brief this advances the his before following synopsis
Kleypas
court: 12], counsel
“In order to this instruction No. defense [Instruction clarify cryptic the that jury charged:
proposed shall circumstance found unani- ‘Each individual juror weigh aggravating to exist circumstances found that individual mously any against mitigating to exist/
juror denied this instruction.”
The trial court
This his instruction synopsis misleading. Kleypas proffered but, rather, instruction” [previous] prior “clarify cryptic No. 12. After the Instruction parties agreed adoption No. the court denied instruction
Instruction Kleypas’ requested No. 12. it was covered under Instruction
because already Thus, denial. instead of no
made objecting objection brief, and No. 12 as claimed his
Instruction agreed his of Instruction No. 12 fashion the replace
helped language instruction.
proposed 23 that and set forth in issue
Because the discussion holding to mandate death
it is constitutionally impermissible circum- finds
where the aggravating mitigating it is likewise
stances are necessary equipoise, disapprove second sentence instruction
hold language improper determine that there are facts states: “If
No. you juror
or circumstances in sufficient to out- mitigation punishment circumstances, the evidence of then must
weigh aggravating you
not return a verdict of death.”
This instructs the that before it could language erroneously juiy
not return a verdict of death it would have to find the mitigating
facts or circumstances facts and circum- outweigh aggravating
stances.
The first sentence of instruction No. “It is not necessary
all facts and circumstances in jurors agree upon particular mitiga-
tion of is a correct statement of law and satisfies punishment,”
Mills and Whether this sentence far McKoy requirements. goes itself can be determined the other
enough by only by examining
instructions to consideration relating aggravating But, facts and circumstances. instruction mitigating dealing
with the consideration of circumstances (1) should state mitigating *150 need to be to the satisfaction of the individual
they only proved in the decision and not
juror reason- juror’s sentencing beyond (2)
able doubt and circumstances do not need to be mitigating
found all members of the in order to be considered in an jury
individual decision. juror’s sentencing
The three cases cited and amicus curiae the National by Kleypas
Association of Criminal Defense Fulcomer, Lawyers, Frey 916, (3d 1997),
F.3d
922-23
Cir.
cert. denied
(1998);
Kordenbrock v. (6th 919 F.2d 1990) (en Cir. banc); Scroggy, Thieret,
and Kubat v. (7th 867 F.2d 1989), Cir. are claimed to (unanimous
show that Instruction No. 8 a reasonable doubt beyond
burden on the State as to circumstances), Instruction aggravating
No. and Instruction (verdict No. 15 form discussed provision 36)
in issue No. emphasize requirement unanimity regarding circumstances while the distinction aggravating failing clarify
between the standard for circumstances mitigating aggravating
results in a to believe it must be unanimous its jury likely finding circumstances. This was not the of the mitigating clearly import
first sentence of Instruction No. but we discuss the briefly of the three cases cited to us.
holdings
In the court instructed that “The Crimes Code Frey, jury: pro-
vides that the verdict must be a sentence of death if the unan- jury and no miti- one circumstance at least finds aggravating
imously circumstance, one or more if the finds unanimously jury
gating circum- circumstances which outweigh any mitigating
aggravating 922. The Third Circuit Court of found 13 F.3d at
stances.” Appeals would conclude from this that
that it was jury reasonably likely find circum- that it had to
instruction unanimously mitigating
stances, other instructions referenced where expressly especially for circumstances but made
unanimous aggravating requirement was circumstances mention that
no mitigating requirement at 922-24. 132 F.3d
different. Kordenbrock, trial court instructed the expressly a reasonable had be found circumstances beyond
aggravating of the standard for circum- made no mention
doubt but mitigating banc, Court of en found that The Sixth Circuit
stances. Appeals, because it created likelihood that Mills
this violated jurors miti- them to also find the instructions
would
require
interpret
a reasonable doubt.
gating Kubat, una- the court’s instructions
10. Similarly, emphasized circumstances and did not inform jurors mitigating
nimity doubt, a reasonable thus not have to be found
did beyond violating at 372-73. 867 F.2d
Mills. cases, the in this case was to these three
In contrast specif- the first sentence of instruction No. 12 instructed by
ically circum- with regard mitigating
unanimity required Kordenbrock, and Kubat do not
stances. Kleypas’ Frey, support
argument. No. second sentence of Instruction we
While disapprove *151 instruction was sufficient
12, sentence of the first agreed-upon believe that the concern that
to address unanimity jury might It instructed as to circumstances. mitigating explicitly required as to facts and not be unanimous that it need mitigating jury
circumstances. result, no error in we hold there was
As a Kleypas’ failing give instruction, sentence of No. 12 the first Instruction
requested is dis- sentence of Instruction No. 12 and the second
approved,
approved.
1080 Jury Might
Issue 41. Failure to Inform of Sentences be Im- for Other Convictions
posed that the trial court erred in to instruct the argues
Kleypas failing as to the of the sentence that would be for the
jury length imposed sentence,
murder absent death and also erred in to instruct failing that he would be sentenced for two additional felonies jury
which could be run to the murder conviction. consecutively Kley- also that the trial court should have informed the
pas argues jury
as to exact total term of to which he would have imprisonment
been sentenced absent a death sentence. Carolina,
In Simmons v. South 154, 168-71, 129 512 U.S. L. Ed. 133,
2d 114 S. Ct. (1994), 2187 the United States Court Supreme
held that it was unconstitutional to the defendant’s deny request
to instruct the that he would not be where jury eligible parole
the State had that the defendant should be attempted argue put
to death because of his future The Court found dangerousness.
that the denial of such an instruction the de effectively prevented
fendant from
the State’s
length imposed sentence,
sent death is that counsel such Kleypas’ objected just
an instruction at trial. The trial court offered to an instruction give would be sentenced to life in with eli- prison parole or, in 25 at the discretion of the
gibility years judge, might
sentenced to the hard 40. The defense felt that there was no really of life with in 25
possibility refused to parole eligibility years
have the instructed Thus, on the error of the court subject.
on this was invited and cannot now be subject com- by Kleypas Borman, See State v. 476, 480, 264 Kan.
plained appeal.
P.2d also that the should have been instructed on argues
the sentences he would receive for his other convictions. In felony contention, of this he cites cases from other
support jurisdictions
which he claims have done so: State v.
Loftin,
N.J.
(1996);
A.2d 677
Clark v.
118 N.M.
(1994); State, 575 So. (Miss. 2d 1 1990). However, Berry
1081 Clark do not substantively argument. Berry support Kleypas’ the be informed
Clark stands for the jury only proposition the defendant either of incarceration the by way facing length instruction from the rebuttal
of a defendant’s
by
arguments
mons, at the defendant’s U.S. 168-69. holds 512 Berry criminal and thus make him a habitual crimes will designate
prior
him habitual criminal should for hearing parole, ineligible before deliberations on the advised of fact
held and
jury
death
begin.
Martini,
with State
(1993),
Jersey potential from the will receive for convictions
sentences defendant arising Martini, as the conviction.
same trial capital-murder N.J. are to instruct the if in New also 313. Courts jury Jersey required will be likelihood that consecutive sentences is a reasonable
there at 372. on the counts. Loftin, non-capital
imposed
N.J.
New
are
man-
such as those
not
Instructions
required
Jersey
Further,
Simmons.
See
dated length before to be served defendant
incarceration parole eligibility Amendment under
is not a circumstance Eighth mitigating about the character or it not a fact defendant’s
because background Kansas law does not the circumstances the offense.
or about New and we decline to such as that in for Jersey,
provide system sua court We conclude that the trial such a system sponte.
impose on the sentences which err in instruct
did not jury failing additional convictions. would receive his felony no of a the trial court has to inform the absence duty request, case of the term imprisonment jury capital-murder death would be sentenced if were
which a defendant imposed. the trial court must instruction is
Where such an pro- requested, a defendant alternative number with the
vide years death. serve in if not sentenced to
would be required prison a defendant has been found where guilty charges
Additionally, murder, must trial court
in addition request upon capital terms of for each with imprisonment
provide possible
additional advise the that the determination charge jury such oiher
whether sentences shall served or con- consecutively to each other and the sentence for the murder conviction
currently a matter committed to the sound discretion of the trial court. Limiting Regarding
Issue 42. Failure to Give instruction Inconsis-
tency Heinous, Atrocious, Aggravating Between or Cruel Manner Avoiding Aggravating
Circumstance Arrest Circumstance that two of the ad- circumstances argues aggravating
vanced the State in his are sentencing separate proceeding po- and, therefore, inconsistent the trial court in-
tentially required
struct the on the He that the inconsistency. argues following
two circumstances are inconsistent both address they
motive for “The defendant committed the crime for killing:
defendant’s self or another for the or purpose receiving money value,” other 21-4625(3), K.S.A. and “The thing monetaiy
defendant committed heinous, the crime in an atrocious especially manner,” 21-4625(6).
or cruel
K.S.A.
cites two cases to
his
for the
support
argument
necessity
instruction: State v.
700 A.2d
limiting
Cooper,
N.J.
(1997),
Barreras,
and State v.
181 Ariz.
In factors in the were that Cooper, aggravating penalty phase
(1) the crime was (2) and senseless and the crime was depraved
committed to avoid arrest. The court found that these two factors inconsistent,
were existed, one assumed no motive while the
other set forth circumstances, motive. 151 at 382. Under the N.J. concluded that the trial court should not have submitted Cooper
both factors but also concluded a instruction limiting
could not find both factors was sufficient to cure the error. 151 Barreras, at 382-84. In the trial court found that the murder N.J.
had been committed in an heinous and manner especially depraved
because, in the murder was senseless and the murder was part,
made to eliminate victim as a witness. The Arizona Supreme
Court concluded that the witness elimination factor aggravating
was not the evidence but also its doubt supported expressed
that the two factors could exist at the same time. 181 Ariz. 523. factors involve and Barreras relating aggravating
Cooper viz., that the was senseless and
motive of the killing killing, eliminate the victim. In both to avoid arrest was made
the killing However,
cases, factors were inconsistent. clearly aggravating case
neither Kleypas’ argument. supports heinous, atrocious, Kansas, or cruel manner aggravating i.e., toward the motive for the is not
circumstance killing, targeted but, rather, on was its focus is the manner
that the senseless killing We conclude that the which the was committed. alleged killing not exist under the facts of this case. No does limiting
inconsistency State was not
instruction necessary. relying Kleypas’ heinous, atrocious, or cruel to establish the
motive for killing Instead, State relied on
manner circumstance. aggravating *154 the victim to establish that and mental suffered anguish by
physical fails. circumstance. Kleypas’ argument
aggravating Penalty in Prosecutorial Misconduct the Phase
Issue 43. that certain conduct the State the by during pen- alleges as well as numerous statements and arguments during
alty phase, misconduct. Ac-
its constituted closing argument, prosecutorial him a fair the misconduct denied
cording Kleypas, prosecutorial be over- and that his sentence requires
sentencing proceeding sen- determined that we have
turned. already Kleypas’ Although for a new sen- and the matter remanded
tences must be vacated errors with we choose to address the claimed hearing,
tencing in detail. Because this is the misconduct
regard prosecutorial statute, it im- case in Kansas under the new
first death penalty standard of review for claimed misconduct the highlight
portant de- and the and educate both prosecutors
during penalty phase will be held in as to the standard which
fense they attorneys and comments
both their conduct during penalty phase.
Standard Review Kansas is of a in
The sentencing proceeding purpose separate should be sentenced
“to determine whether the defendant 21-4624(a). the critical K.S.A. We cannot
death.” overemphasize victims, defendant, of such determination
importance
and all to Kansas citizens. Because of the life and death nature of have to refrain prosecutors proceedings, heightened duty to inflame
from conduct designed passions prejudices and which the State
jury. by process proceedings imposes fair
death sentence must be and free of error consistent prejudicial
with the United States Constitution the United by interpreted
States Court. Supreme
The standard review claim of misconduct upon prosecutorial of a murder trial is similar to the
during penalty phase capital Yet,
standard there are subtle differences applied guilt phase.
which need to be identified before we consider the alle- specific of the defendant.
gations cases,
In all the standard of review in whether al determining statements made
leged improper prosecutor closing during First, ais we must determine whether
argument two-step process:
the remarks were outside the considerable latitude the prosecutor Second,
is allowed evidence. we must determine discussing error, is,
whether the remarks constituted that whether the plain
comments were so as to gross flagrant prejudice the accused and him a fair trial. State v. Mc
against deny
Corkendale,
278-79,
In our determination whether the remarks were prosecutor’s
so as to the defend- gross flagrant prejudice deny
ant trial, his constitutional to a fair we the harmless right apply
error errors, federal constitutional as stated analysis
United States Court in 386 U.S. California, Supreme Chapman
18,
705,
24, 17
824,
L. Ed. 2d
87 S. Ct.
reh. denied
(1967). A constitutional error be declared harmless where the may
State a reasonable doubt that the error beyond proves complained did
of
not contribute to the verdict obtained.
though language reviewing
is able find a reasonable doubt error, that the when beyond whole, little,
viewed in of the record aas had if likelihood light any,
of the result of the trial” is somewhat different than the changing used in we have held that our is standard es- Chapman,
language same in See v. State
sentially expressed Chapman. Fleury, 888, 893, (1969)
203 Kan. 457 P.2d 44 test for (adopted Chapman
1085 that it occurs “where the error and stated harmless constitutional little, likelihood of defect had if
error or any, changed having See, 279; State trial”). 267 Kan.
result
e.g., McCorkendale,
939, 959,
(1999); State v. Za
v. Kan. Lumley, 690,
mora,
684,
(1990); State v.
247 Kan.
231 Kan. the use of the States Court has
The United Supreme approved error trial errors harmless analysis analyze occurring
Chapman Satterwhite of murder trials. See
during
penalty phase
capital
249,
284,
(1988);
Texas,
U.S.
Ed. 2d
Clemons v. 494 U.S. 108 L. Mississippi, However, the Court also noted that
Ct. 1441 has applica than non- is somewhat more in
tion of analysis complicated Sattenohite,
death cases or in the trial. In guilt phase capital
the Court stated: Moreover, is “It to avoid error in capital sentencing proceedings. important of a of an error in the evaluation of capital sentencing phase consequences is to the sentencer. case be more difficult because die discretion that may given Nevertheless, we believe that court can make an intelligent judgment reviewing af- about whether the erroneous admission of have testimony might psychiatric
fected a
Similarly, that state in this is intended impression appel- “Nothing opinion convey in or harmless-
late courts are or should necessarily engage reweighing required Our error when errors have occurred in proceeding. analysis capital sentencing are some that such holding only procedures constitutionally permissible. In. situations, a a case make state court conclude that in may appellate peculiarities or harmless-error impos- analysis extremely speculative appellate reweighing difficulties We have noted that courts face certain sible. may previously appellate Nev- in first instance. [Citation omitted]. sentencing determining questions courts, ertheless, that state Su- decision is for including Mississippi appellate case, U.S. at 754. Court to make.” 494 preme
Several also noted that the commentators have legal application difficult and limited in the the harmless error is more analysis McCord, Is Death of a murder trial. See
penalty phases capital It Should Harmless Error Analysis? Purposes “Different” Court Louisiana
Be?: An Assessment United States and Supreme Mitchell, Law, (1999); Case 59 La. Law Rev. 1105 Wizardry
1086 Brain, Heart, Harmless Error: When Review- Courage Required Sentences, (1994); Carter, 4 Kan. & Pub.
ing Capital Pol’y J.L. in Harmless Error Phase a Case: A Doctrine Penalty Capital Misunderstood and Ga. L. Rev. 125 Pro- Misapplied,
fessor Carter noted that the arises because of the differ- difficulty
ence in a must exercise judgment jury during penalty phase and the dis- guilt opposed phase, corresponding greater
cretion: “In contrast in which the factfinder [to must reach guilt phase, decision exist], as to whether certain facts the sentencer in a case must first find capital whether certain facts exist and then value to those facts. The apply judgment in or must decide whether the
judge evidence is phase convincing that an circumstance exists and whether aggravating circumstances any mitigating exist. These assessments are judge essentially comparable factfinder’s task in the in if the elements the crime exist. guilt phase deciding sentencer, however, is asked to do more. The sentencer is asked to take the
facts found —the circumstances —and balance aggravating mitigating them each other. The is against The sentencer balancing must make virtually unguided. circumstances) value whether one of facts judgment group (aggravating as, (the the same or less than another of facts
greater, circum- group mitigating stances).” Ga. L. Rev. 148-49.
Further, of what is referred to as the applicability commonly test,” evidence as stated the United States Su
“overwhelming Court in 395 U.S. 23 L. Ed.
preme Harrington California,
2d 89 S. (1969), Ct. 1726 is more difficult and complex errors
addressing assigned during occurring penalty phase. the Court found that the consideration of the over
Harrington, nature of the defendant’s was a valid consideration
whelming guilt
under and that harmless error be found where the Chapman may
evidence the defendant was against “overwhelming,” although
courts should be cautioned from too much to this giving emphasis
consideration.
evidence is also consideration the Kansas version of the Chap
man Follin, harmless error 28, 45, See State v. 263 Kan. analysis. (1997)
termining granted pros
ecutorial misconduct is whether the evidence the defendant against *157 or likelihood the that there was little no
was so pros- overwhelming trial). the result of the remarks
ecutor’s changed prejudicial the claimed whether misconduct determining prosecutorial of the trial had little no likelihood the of
in chang- phase to evidence verdict, the court is consider the the obliged jury’s
ing McCorkendale, 267 Kan. at as a whole. See of the record
in light must determine the court
279. In so necessarily considering, the verdict is so overwhelm- the evidence in favor of
whether jury’s the error had little or no likelihood of the changing jury’s
ing Carter, in the Phase
verdict. See Harmless Error Penalty Cap- of L. Ga. ital Case: A Doctrine Misunderstood Misapplied, Thus, in which the misconduct be at 134-38. one
Rev. may way is finds that the harmless where an court
found be appellate circumstances, of of the
evidence in favor the existence aggravating circumstances evidence that these
and the outweigh aggravating circumstances, miscon- so that the is
the overwhelming mitigating verdict. or no of the
duct had little likelihood changing jury’s Kansas, is to reveal noted that in
It must be jury required it to exist. See K.S.A. 21- circumstances found
what mitigating
4624(e) aggravating designate writing (requiring exist, same but not for the it found
circumstances requiring Thus, circumstances). of the “overwhelming
mitigating application error harmless test” as
evidence Chapman component all circumstances claimed assumes
analysis mitigating court’s decision with exist. The the defendant regard appellate nature of. the evidence will depend upon overwhelming the evidence that the court
whether the may aggravating say is so over- circumstances
circumstances mitigating outweigh or no likelihood that the misconduct had little chang-
whelming verdict. the jury’s
ing that must
Thus, and the ultimate the standard review question to whether misconduct
be answered with prosecutorial regard of a trial was harmless whether
the penalty phase capital doubt that the to find reasonable
court is able beyond prosecu- whole, had misconduct, as a viewed in the of the record
torial light
little, ultimate conclusion if likelihood changing jury’s any, circum- weight aggravating mitigating
regarding determination,
stances. In this nature of the ev overwhelming considered, ais
idence factor be its is limited. although impact
Also,in the determination as to whether an error was harm making
less, isit that the for the important recognize question reviewing
court is not what effect the constitutional error might generally but, rather, have a reasonable what effect it
expected upon
had the actual verdict in the case at hand. Sullivan Loui upon
siana, 275, 279, 124 182, 113 508 U.S. L. Ed. 2d S. Ct. 2078 words, whether,
“The in other is not in a trial that occurred inquiry, error,
without the would have been [verdict death] surely
rendered, but whether rendered in this [death verdict] actually
trial was
unattributable
the error.”
Further, even if instances of misconduct are harm- prosecutorial themselves,
less error in and of
their cumulative effect must be
See
Valdez,
State v.
266 Kan.
analyzed.
(1999) that cumulative errors be so toas (noting may great require
reversal). aFor cumulative error the focus is on the net analysis, effect the total misconduct had on the
prejudicial prosecutorial ultimate verdict. The is whether the total effect of
jury’s question
the cumulative exist, misconduct found to viewed in of the light whole, little,
record as a had if likelihood of any, changing jury’s
ultimate conclusion regarding weight aggravating circumstances.
mitigating mind,
With these standards in we now turn to the ar- specific raised the defendant:
guments During
Prosecutorial Misconduct Examination of Witnesses
As evidence, of his forth part mitigating Kleypas brought expert
witness a show as circumstance testimony designed mitigating
that he would do well in a structured ar- prison setting. Kleypas’ concern certain asked in
guments questions prosecutor these witnesses.
cross-examining
A. Cross-Examination of Dr. Othmer Othmer,
Dr. a testified that he had psychologist, diagnosed Kley- from several or sexual fantasies involv- suffering
pas paraphilias either innate Dr. Othmer
ing objects nonconsenting partners. and that not control his could
testified that paraphilias Kleypas out” these increase in would lead an
alcohol “acting paraphilias. Othmer, his- was no indication in there to Dr. Kleypas’
According Dr. Othmer while in he acted on his paraphilias prison.
tory which for the because that this was triggers paraphilias,
opined tes- females, alcohol, Dr. Othmer were
were drugs, missing. removed, the likelihood those that with
tified Kleypas triggers was low. extremely prison
causing problems cross-examination, whether asked prosecutor
During with for someone be a device
weaker male could Kley- triggering Dr. sexual identification if the had problems. problem person
pas’ saw no indication that in answered that he
Othmer Kleypas. is someone said: “I understand but the then question
prosecutor a sexual identification who has
with this problem, type paraphilia Dr. Othmer an- be a device?” a weaker male
could triggering was over- but Defense counsel
swered: objected “Theoretically”. an then
ruled. The question, attempted rephrase prosecutor sustained, was and the matter counsel was from defense
objection
dropped. that the contends asking prosecutor improperly whether weaker male could trigger regarding
question would insinuate that an sexually
paraphilia attempt He weaker males in
assault argues prosecutor prison. *159 no for this There a faith basis
lacked really ques- question. good to rebut was the indeed
tion that Kleypas’ attempting prosecutor to establish behavior
evidence of trying by good prison probable to his a males due would be weaker
that para- danger Kleypas a had is whether the good prosecutor only question
philia. such a basis for
faith question. asking Cravatt, 314, 330, (1999), 679 we v. 979 P.2d
In State 267 Kan. rule, assertions counsel not make as a
noted that may general basis a faith to a witness absent
fact in form good questions Wilkins, be true. See State matters to the asserted for believing Marble, Kan. State v. 39, 45, (2000); 21 P.3d 520
269 Kan.
App.
(1995); ICRPC
rev. denied
2d Text, Graham, 406); Evidence:
3.4(e) (2001 Ct. R. Annot. Kan. Problems, 1989). In order (2d ed.
Rules, Illustrations p.
for the a have faith basis for prosecutor good asking question cross-examination,
that he asked on prosecutor required a (1) have faith basis for had a sexual good believing Kleypas (2) a
identification weaker male would be a indeed problem device for a with a and sexual
triggering person Kleypas’ paraphilias
identification problem.
However, did not object Kleypas prosecutor’s question of a basis lack faith belief. We underscored the neces- good such an for in Cravatt: “An overruled at
sity objection objection
trial would a have basis for It review. would also have provided the State to its basis for the above
required proffer questions.” 330.
Kan. at While it is true that the State must be to establish ready faith basis its its to do so is good questions, responsibility so, an which asks it to do and where there
triggered objection Wilkins,
is no such
does not exist. See
269 Kan.
objection,
duty
45; Cravatt,
If the had faith basis for prosecutor good believing Kleypas
had sexual identification and that a weaker male problem might
serve as a device for someone with triggering Kleypas’ paraphilias
and sexual identification would have been questions problem, relevant of Dr. Othmer’s
highly credibility opinion Kley- would do well in The failure of the defendant
pas prison. object
and to of a faith basis trigger prosecutor’s proffer good pre-
cludes of error on this issue. finding
Of more concern this court is another asked question its cross-examination Dr. Othmer. The
prosecutor during pros-
ecutor noted that Dr. Othmer had said that was a alcohol triggering
device. The then asked if was it true that the prosecutor prison
records indicated that had tested for alcohol. Dr. positive
Othmer indicated that he had not been aware of such specific
incident but Larned records had indicated that had pre- “had a in a controlled environment.” At
viously drinking problem asked: “So did tell us then that point, prosecutor why you
he did not have indications of around these being triggering
devices?” Defense counsel but was overruled. The objected pros-
ecutor then resubmitted the at which defense coun- *160 question point
sel that there was no basis faith for again objected, arguing good incident counsel noted that Defense particular question. but to did not in referred
to which the prison happen prosecutor Missouri was on work release in while
instead occurred Kleypas “Your at a bar. The then was
and explained: working prosecutor was in he
Honor, is the defendant and prison point prison he out and he has access alcohol. and on work release goes
got that he has no the doctor made the statement is—he
This says and he does.” The trial court he’s in
access while clearly prison counsel’s
sustained defense objection. was dis- his
With prosecutor clearly trying questioning, for Othmer’s that
credit Dr. opinion triggers Kleypas’ para- that be removed in the would inferring prison setting by
philias to alcohol in had access prison bringing up point
Kleypas was in had tested for alcohol positive prison. Kleypas is, knew, did as the clearly Kleypas prosecutor
problem but rather tested while for alcohol
test prison positive positive This was was on work release. cross-examination
he attempted was faith basis and
made without good improper. Gentry of Dr.
B. Cross-Examination about which took
The next during Kleypas complains place point one of of Dr. Gerald
the cross-examination Gentry, Kleypas’ psy- examination, On redirect Dr. testified that
chiatric Gentry experts. some mental from the suffered had damage “anticipation fear of which him pain” accompanied watching beatings recross, his father. On
his brothers Barry prosecutor Disney that the of fear or the
stated: “So would agree you anticipation Gen- of harm can cause severe mental distress?” When
anticipation would, then stated: “So would care that it Disney you
try replied as to the severe mental distress an amount of venture opinion when the defendant was in her feeling [C.W.] apartment hours?” Defense counsel one and a half three objected redirect, stated: “I think it is trial court beyond scope
sustained.” what the motive in
It to tell exactly prosecutor’s impossible either, was. was an It suggests,
asking question of C.W.’s in order remind suffering
attempt pain
to inflame the or it was an jury by attempt prosecutor gamer a
additional from defense witness the State’s testimony support circumstance that the murder was committed alleged aggravating cruel, atrocious, heinous, an manner. In either especially
event, the itself was We caution that a question improper. prose-
cutor who outside the of the examination seeks to an scope gain awith is intended to inflame and
advantage question arguably close to reversible er-
impassion perilously committing
ror.
C. The Prison Checklist Dr. Park as testified an witness expert regarding Kleypas’ James He testified that he had reviewed the Mis-
adjustment prison.
souri of Corrections files and records on Department Kleypas
found no evidence of sexual assaults and violence. his In opinion,
if sentenced would once abe prison, Kleypas again good pris- cross-examination,
oner. On asked Dr. Park about prosecutor
a correctional checklist that was in Missouri adjustment Kleypas’ records. The checklist contained a list of behaviors and was
prison official the numbers which corre-
completed by prison circling to the behaviors exhibited the inmate. check-
sponded Kleypas’
list had circled the attributes inmates,” “victimizes weaker “an ag- race,”
itator about staff, tries to con staff “continually “plays against another,”
one and “tries to form asked [clique].” prosecutor
Dr. Park to that those attributes were circled and re- then verify
ferred to them in Defense counsel closing argument. objected
the use of the checklist but was overruled. contends that the should not have been al prosecutor
lowed to use the checklist in cross-examination to his establish bad
conduct in because the were unreliable and un prison allegations and, further,
corroborated instruction should have limiting
been that the evidence in the checklist given informing
could be used for the only purpose impeaching credibility witness, not as evidence of bad conduct in Kleypas’ prison. contentions, of these relies on our decision in support Hinton, v.
State 206 Kan. (1971), P.2d 910 as well aas case, Rose,
New 454, 548 State A.2d 1058 Jersey N.J. to admit that it is stands for the
Hinton improper proposition cross-examination of of bad character fact
evidence during Instead, such evidence should witness.
a defendant’s character only of the character witness affect the
be admitted to credibility with such evidence. witness is familiar whether the character
asking as a is sanctioned test of at 506. This cross-examination
206 Kan. that if the witness has under the
the witness’ theory credibility *162 evidence, as to the de- the witness’ with the opinion
familiarity faith, be sound or in and if
fendant’s character not may good good then the witness
the has no with the evidence witness familiarity 206 at the defendant. See Kan. not be familiar with
may actually
506.
We stated Hinton: in allow the to trial in whether to attorney “The prosecuting judge determining witness, the defend- the character when
cross-examine defendant’s challenged by ant, out of of the and he should conduct jury, presence preliminary inquiry
should himself: satisfy rumor, “(1) of the That is as to the fact of the matter there no subject question is, arrest, misconduct of the conviction or other pertinent previous defendant; arrest, “(2) exists that the conviction or other That reasonable likelihood previous have been bruited about the or com- misconduct would neighborhood
pertinent trial; commission of the offense munity alleged prior conduct, it,
“(3) occurred nor the rumor That neither the event nor concerning offense; at a time too remote from the present
“(4) and the rumor concerned the That the earlier event or misconduct specific trial; and for the accused is on trait involved in the offense which form, “(5) is, in the ‘Have That the examination will be conducted proper etc., heard,’ ‘Do omitted.] know.’ you [Citations
you should be reached to allow the “If the conclusion is interrogation, at the conclusion of the cross-examination
informed of its exact
either
purpose,
witness,
at
the close of the
in the
made
the character
or
charge
case.”
Unlike the situation guilt than to be defendant rather
innocence imposed. a defendant of a where
In the capital proceediiig penalty phase circumstance, evidence of a prosecution mitigating
presents
1094 to cross-examine defense witnesses as to relevant facts
permitted
introduce relevant evidence
order to rebut
existence
in
Rose,
502-03;
circumstance. See
at
Com.
mitigating
N.J.
Ford,
Lord,
(1994);
Pa.
Wash. 2d
ner in which the was elicited and the manner in which testimony
it was referred to in that the was arguments closing prosecutor information rebut factor
using Kleypas’proposed mitigating
that he would well function rather than to use prison attempting
the information as evidence that the defendant was a bad person
and should be sentenced to death.
The checklist used to Dr. Park included in the impeach
documents which Dr. relied on in Park his forming opinion result, As a it was for the
Kleypas’ amenability prison. proper to cross-examine Dr. Park as to evidence without fur-
prosecutor Rose,
ther (inci- its See 500-01 establishing accuracy. N.J. dents relied on by expert proper subject expressing opinion cross-examination, instruction). Thus, subject limiting Kley- the need for corroboration of the truth of
pas’ argument regarding fads. checklist
However, there is a as to whether the trial court was question to a instruction that the information in
obligated give juiy stating
the checklist could be considered for the only purpose rebutting
the circumstance that could function well in mitigating instruction, The court in a Rose found need for such an
prison.
noting: case, “In the aof the function the has been penalty phase capital jury shaiply defined the The must if by determine the State has be Legislature. jury proved factors, reasonable doubt the existence of if yond the de any aggravating fendant has the existence of factors. The must proved then any mitigating jury the factors the only factors.
weigh aggravating against only mitigating N.J.S.A. 2C:11-3c(3). The not is in its add to other evi jury permitted, weighing process, dence of defendant’s conduct to the it to the past weight assigns aggravating factors, conduct, nor to consider other evidence of defendant’s to the past except factors, extent to offered rebut as from the it mitigating detracting weight assigns to the factors.” 112 at 507-08. mitigating N.J. law,
The Rose court stated that under New where relevant Jersey
evidence is admissible for one and is inadmissible an- purpose to restrict the evidence its to is the
other judge required purpose, The court found and instruct accordingly. jury scope
proper to instruct the incumbent
that it was jury judge upon to rebut the be used could
information mitigating proffered only evidence. 112 circumstance, as not additional aggravating N.J. Further, did not matter whether court found it
506-08. instruction, information, as an such
the defendant requested school, in misconduct the defendant’s
which included high past to acts of violence addition his against physical
army, jail, was reason for and his racial
former buying shotgun, girlfriends an instruction sua as such
so sponte. inflammatory require at 505-07.
N.J. the sentencer’s States Constitution does not United The prohibit trial of murder
consideration capital during penalty phase factors related
information not aggravating mitigating directly character of the de is relevant
as as information long Florida, the crime. the circumstances of
fendant or Barclay 1134, 103 (Stevens, (1983) Ct. 939, 967, 77 Ed. 2d S.
U.S. L. Therefore, is whether under Kansas the question concurring).
J., is instruction
law such limiting required. the consideration of Kansas law limits
As in New aggra- Jersey, State, and the listed circumstances those jury
vating bad acts the defendant to use evidence other permitted in- circumstances.” jury “nonstatutory aggravating pattern “In make this clear
structions for Kansas by instructing jury: sentence, consider those
the determination only aggra- you may 3d in this instruction.” PIK Crim. set forth circumstances
vating this case. This
56.00-C. Such an instruction given that it not use evidence informs the
instruction may adequately as an circum- rebuts a circumstance
which aggravating mitigating
stance. between New is the difference
Of further Jersey significance evidence instruct on with
Kansas judge regard duty *164 The New but not for another.
which is admissible for one purpose instruction was in Rose found that a Court limiting
Jersey Supreme 6, “When Rule which in its Evidence provides:
necessary light as to or for one evidence is admissible one
relevant purpose party
and is inadmissible as other or for another parties purpose, shall restrict the evidence to its and instruct
judge proper scope at 507. accordingly.” jury N.J. Kansas law states: “When relevant evidence is comparison,
admissible as to one or for one and is inadmissible party purpose
as to other for another parties purpose, judge upon request
shall restrict the evidence to its and instruct the proper scope jury added.) K.S.A. 60-406.
accordingly.” (Emphasis
We have held trial is such although judge required give
an instruction where of one of the applicable request parties,
the failure to do so when not is not error unless such requested Lolar, 682,
failure is erroneous. State v. 687-88, 259 Kan. clearly (1996); Knowles, 676,
P.2d 40
We conclude that the court was not to instruct the required jury of the evidence where failed to
regarding applicability such an instruction. Under the instructions Kan-
request pattern
sas, the is instructed that it tois consider juiy explicitly only circumstances listed. The
aggravating only statutory aggravating
circumstance which even concerns a defendant’s remotely history
is that the defendant was convicted aof in which previously felony harm,
the defendant inflicted dismem- great bodily disfigurement,
berment, or death on another. See 21-4625(1). K.S.A. re- circumstances concern characteris- statutory
maining aggravating
tics of the crime and we conclude that it is that a very unlikely
would to those circumstances be- assign greater weight aggravating
cause of a defendant’s It is also that the past history. unlikely
would use this information to discount the defendant’s proffered circumstances other than the circumstance
mitigating mitigating
which the information rebuts. The specifically jury presumed
follow the instructions of the court. State v. 251 Kan. Tyler, 840 P.2d
Syl. ¶
Another identified the use of the problem by Kleypas regarding
checklist is that he had shown in- according Kleypas,
formation incorrect. that the trial court erred Kleypas argues his motion for new trial In his mo- denying given showing. trial,
tion for a new submitted an from a affidavit Missouri *165 was the officer who officer. originally Countryman Mary
prison affidavit, 1988. In her checklist in the Countryman
completed the
stated following: was and I was W. when he an inmate was with “2. I familiar Gary Kleypas at Center. Fordland Correctional
correctional officer Mr. was to other inmates. saw indication that Specif-
“3.1 no Kleypas dangerous assaultive behavior his saw no indication of or homicidal part. I ically contact with. with he had
“4. seemed everyone Mr. Kleypas get along in activities. Mr. was racist or racist
“5.1 saw no indication that Kleypas engaged was out the it was.
“6. I not know the attached form filled way do why v. W. in State Kansas
“7. from the Gary Nobody prosecution at to discuss the attached form.” contacted me time assertion, does not the affidavit
Contrary prove Kleypas’ in was false. While
the information contained the checklist issues, it checklist as to the various
affidavit does contradict filled in was out no checklist why
provides explanation Therefore, it was. while the affidavit affects
the manner in which checklist, does not the checklist. it negate credibility
Rather, of the events 9 after it establishes view Countryman’s years was out.
the checklist filled a violation
A based on or false evidence is conviction perjured evidence in cases where the false
of due even process perjury Illinois, U.S. See
was not induced Napue prosecution.
264, 269,
2d
should be applicable penalty proceedings. especially
ever, fact that the evidence the affidavit does not establish and, err therefore, court did not
false trial denying Kleypas’ on this basis.
motion new trial Conditions
D. Prison misconduct committed argues prosecutor of a witness cross-examination defense by violating
through condi- of the trial court’s order in limine
terms regarding prison trial, motion defense
tions. Prior to the trial court ruled upon side could issues
counsel that neither bring relating prison up
conditions, evidence would allowed present although Kleypas his and the State would be allowed
regarding amenability prison
to rebut that evidence. a fire with the Missouri Haggard, safety specialist Depart- Joe Corrections,
ment of testified that he had supervised Kleypas
the Ozark Correctional Institute. testified that Haggard Kleypas
had been member fire for prison department responsible fire area. testified
helping departments surrounding Haggard
that was a worker and followed orders. He also tes- Kleypas good
tified that had assisted him with administrative and teach- activities and was instrumental
ing raising money training
materials and fire He identified ain fighting equipment. from that the fire crew was al-
picture yearly banquet fighting
lowed to have for an award ceremony. cross-examination,
On in the follow- prosecutor Disney engaged
ing colloquy: And were
“[Prosecutor]: allowed to they these to have ban- according pictures quets? Yeah. were allowed to have one a “[Haggard]: They If had an year. they organi-
zation —like the had an there. Jaycees they organization life; have “[Prosecutor]: cakes in They could prison just every typical day correct? Well, sort of.
“[Haggard]: were also allowed “[Prosecutor]: to have They clubs in is that cor- bridge prison;
rect? I no have idea.
“[Haggard]: Softball
“[Prosecutor]: tournaments? I’ve seen them softball. “[Haggard]: playing Were aware “[Prosecutor]: that the you defendant was associated with bridge
club?”
Defense counsel and the trial court sustained the ob- objected, Defense counsel then asked for a curative instruction
jection.
which would inform the that the had jury prosecutor improperly to that was an fife and further inform
attempted imply prison easy that life in was difficult. The trial court jury prison explicitly
found that the had violated the earlier order prosecutor prohibiting
evidence of conditions. The trial court stated that “it was prison
obvious” that the was to that prosecutor trying imply jury life was The that he had
prison easy. prosecutor agreed attempted The trial court was environment. an easy suggest prison that the a curative instruction informing jury prosecutor
gave was an en-
had easy suggest prison improperly attempted such an
vironment and instructed disregard implication. was violation cross-examination Haggard prosecutor’s misconduct.
of the trial court’s order constituted prosecutorial was
The cross-examination an attempt prejudice an environ- them easy prison
improperly suggesting as much. Such evidence was
ment, admitted and the prosecutor inadmissible, irrelevant, the defendant.
clearly prejudicial conduct,
We are disturbed especially greatly prosecutor’s case. the nature of this
considering During Closing Arguments
Prosecutorial Misconduct Right Regarding Si- Defendant’s to Remain
A. Comments
lent *167 made the state- following closing argument prosecutor
ment evidence: regarding mitigating remorseful, he’s the claim that he’s that The defendant also makes
“[Prosecutor]: had an He sat here for a whole month and Let’s talk about remorse. you’ve
sorry. to observe the defendant.”
opportunity the on the that
At the defendant that objected grounds pros- point, the had not observed remorse
ecutor was to that say jury preparing an and that was
on the of the defendant implication part to silent. The court
the defendant’s Fifth Amendment remain right to the the the and instructed
sustained disregard objection jury
remark. Constitution, as well to United States
The Fifth Amendment the the Constitution Bill of
as 10 of the Kansas right Rights, protects § not to and forbids his
of the defendant exercise testify privilege v. silence. on the defendant’s
comment by prosecution Griffin 1229, 106, Ct. 609, 615, L. 2d 85 S. U.S. 14 Ed. 380 California, 47, Ninci, 21, (1965); v. 262 Kan. U.S. 957 State
reh. denied 381 error when the lan- A commits P.2d 1364 prosecutor a such character that intended or was of used was manifestly
guage would take it to be comment on the failure necessarily
of the accused to
In the case at statement was not prosecutor’s directly However,
related the defendant’s was failure it indi testify. related in that it was
rectly appears prosecutor preparing that the had view the defendant dur
argue opportunity the trial and the defendant did not to be remorseful.
ing appear
Such comment is a violation of a defendant’s Fifth Amend equally
ment to use evidence right prosecutor attempting
of the defendant’s courtroom behavior where the defendant has Carroll, See United
exercised States his not to right testify. Schuler, 1208, 1209-10 (4th v.U.S. 1982);
F.2d Cir. 813 F.2d (9th
979-82 United States v. 1987); Cir. 489 F.2d Wright, (D.C. 1973). However, Cir. the line of was cut questioning
off from defense counsel by prompt objection riding court. trial
The defendant also of another comment made complains while circumstances of In dis-
prosecutor discussing mitigation. defendant, stated: the de-
cussing prosecutor “Essentially
fendant beat brothers so I killed two women. says my daddy my
Nowhere in this record has the said defendant himself that long
this was—that his father —”
Defense counsel conference was held at again objected
the bench. Defense counsel that the comment was directed argued
toward the defendant’s not decision When if asked he testify. comment,
had “Yes, Honor, stated: Your prosecutor comment on the defendant not That ais com- testifying.
ment on the fact he has been nine evaluations and through
another trial and has never said a word about not that.” causing
The trial court stated: “I’m to overrule the ultimately going objec-
tion but don’t reference that.”
It is not clear the what comment entirely prosecutor’s actually
concerned. the to state Apparently, prosecutor getting ready
that the defendant not had testified that his father beat anywhere
either him or his context, brothers. on the this could Depending
have been an comment on the defendant’s to re- improper right the court action trial silent. Once
main prevented again, prompt from misconduct occurring.
any prosecutorial Mitigating Regarding Circumstances
B. Comments the instructed contends that the repeatedly prosecutor and also instructed the evidence jury ignore mitigating ar- the crime. evidence must excuse justify
mitigating Fourteenth that these comments violated Eighth
gues 1, 2, Constitution, as well as United States
Amendments §§
9, of Constitution Bill of Kansas Rights. a detailed
The resolution of this issue analysis requires and Fourteenth Amendments regard- Eighth
requirements Ohio, 586, v. 438 U.S. In Lockett circumstances.
ing mitigating 973, (1978), States
604, 57
2d
Supreme sentencer, in all but that the and Fourteenth Amendments Eighth require “[T]he case, as a rarest not be from mitigating kind of considering capital precluded the circum- character or record and
factor, a defendant’s any any aspect as a sentence less offense the defendant basis
stances proffers
than death.” therefore, Court, down an Ohio statute limited
The struck U.S. at 608- consider. 438 circumstances could
mitigating judge
09. Oklahoma, 455 U.S.
Lockett was followed by Eddings the Court over- 102 Ct. 869
L. Ed. 2d S. Eddings, court declined death where the
turned sentence sentencing did excuse because it not
consider certain evidence in mitigation
the crime. The Court reasoned: the sentencer from considering any State not statute may preclude “Just law, consider, as a matter factor, sentencer refuse neither may mitigating instance, had as if the trial it was judge relevant evidence. In mitigating on his evidence Eddings proffered instructed disregard mitigating review, sentencer, deter- the Court of Criminal may
behalf. Appeals evidence. But give to be relevant they may
mine weight given mitigating U.S. their consideration.” such evidence from it no weight by excluding
113-15.
Thus, in Court the held that sentencer must consider Eddings, evidence,
all relevant or not evidence whether the mitigating “sug- an the absence for of the crime of murder.”
gests] responsibility
The rationale the in Court Eddings employed Skipper Carolina, 1, 106
South (1986), 476 U.S. 90 L. Ed. 2d Ct. S.
wherein Court overturned a death sentence because the trial
court refused to allow to defendant to the present testimony his character and future conduct if sen
jury regarding probable to life
tenced The Court stated: it is true that prison. "‘Although such inferences would not relate cul specifically petitioner’s committed, for the crime he there is no [citation
pability omitted] but that such inferences would in the sense
question "mitigating’
that
serve "as a
basis for
sentence less than death.’
they might
[Citation omitted.]”
Lockett, it make clear sentencer Eddings, Skipper
must be allowed to consider all relevant evidence and mitigating
that such evidence need not excuse or the crime or in fact justify
relate defendant’s as it serves as basis culpability long
for a sentence léss than death. The defendant’s is that argument it should not prosecutor improperly argued jury
consider certain circumstances because did not ex- mitigating they
cuse or or crime were not circumstances at justify mitigating
all. contends it that was for the to ar improper prosecutor that certain claimed were circumstances in fact not
gue mitigating this from con
mitigating. According Kleypas, prevented jury effect the evidence in of the circum
sidering giving support
stances. made several statements in which Clearly, prosecutor
he find several claimed urged jury mitigating Kleypas’ However,
circumstances were in fact while mitigating.
seems to believe that these comments in some way prevented from these circumstances as considering mitigating, pros
ecutor’s was not argument regard improper. with what constitutes circum
charged determining mitigating 21-4624(e); Therefore,
stances. See K.S.A. PIK Crim. 3d 56.00-D. circumstances that certain for a
it is argue prosecutor proper circumstances. considered as
not be mitigating *170 to that certain
However, for a it is argue improper prosecutor be as circum- not considered should
circumstances mitigating do not excuse or the crime. because
stances justify “Mitigating they as be considered which in fairness are those
circumstances may or blame the of moral or reducing culpability
extenuating degree death, do than even a sentence less
or which though they justify 56.00-D. See offense.” PIK Crim. 3d or excuse the
not Skip- justify cir- who that U.S. at 4-5. A 476 argues mitigating
per, prosecutor or crime states the excuse the
cumstances must justify improperly
law. made several refer- the argument, prosecutor
During closing circumstances to the fact that claimed
ences Kleypas’ mitigating the The first stated that excuse or crime.
did not justify prosecutor a claimed brain defendant mitigator,
although damage caused “couldn’t that brain
defendant’s damage say” expert or the of Bessie Lawrence. C.W.’s murder murder
either previous Next, but was overruled.
Defense counsel objected prosecutor a and stated: “A of alcohol use as
noted claim mitigator Kleypas’ Mist cause Defense of Canadian did not this murder.” bottle
pint to this statement. the claimed
counsel did not object Regarding that did well in stated:
mitigator prison, prosecutor did well make murder of the fact he
“Does that .W.] [C prison was to this statement. The severe?” No
less lodged objection pros- was a claim that his
ecutor then referenced Kleypas’ paraphilia defendant’s did not kill “The [C.W.].” stating: paraphilia
mitigator, to comment. The went on was no this
There objection prosecutor even if had which he ask the
to jury schizophrenia circumstance, “Does that lessen what a
claimed mitigating did not this statement. did?” Defense counsel
he object were
These statements clearly prosecutor improper of miti- lack
reflect understanding concept complete statements, these circumstances. By argued prosecutor
gating evidence should not be considered unless mitigating crime; was an erroneous standard or
it excused justified comments, for these choos- State little
law. The offers justification
1104 instead that this court not should address
ing argue many Baker, no was
them because State v. 249 lodged, objection citing (1991),
Kan. P.2d for the well known standard error cannot be
that reversible claim where no predicated upon This our objection lodged.
contemporaneous argument ignores McCorkendale, 263, 278, in State Kan. 979 P.2d
holding (1999), s that if the statements rise to level of prosecutor to a fair defendant’s trial and a defendant his right
violating deny her Fourteenth Amendment due reversible right process,
error occurs the lack of a despite contemporaneous objection.
State that the were statements taken generally argues prosecutor’s context,”
“out claim does little to the remarks. very explain
A related issue contention that the also Kleypas’ prosecutor
made comments evidence telling disregard mitigating
because it was related the crime. causally Regarding Kleypas’
claimed circumstance of brain due to cocaine mitigating damaged
use, the stated the that because did not prosecutor jury murder, the
use cocaine on “Cocaine didn’t enter night just screen,
into the The cocaine use was aall smoke aall picture.
distraction to divert attention Defense counsel im- your away.” but trial court the overruled the
mediately objected, objection, the stated: “That ais distraction divert prosecutor
whereupon attention the from defendant’s intentional and
your away premed-
itated actions.” the Similarly, regarding Kleypas’ schizophrenia, and stated: “Ladies the crux of this issue
prosecutor gentlemen,
about is it doesn’t matter and it is be- simply schizophrenia why,
cause the of was murder and intentional and [C.W.] planned
it was and severe distress emotional organized. Schizophrenia just
don’t enter the of into this murder.” There was no picture objection
to this statement.
Once comments reflect a mis- again, prosecutor’s complete about nature of circumstances. While
understanding mitigating
neither brain nor have caused damage Kleypas’ schizophrenia may murder, both conditions are relevant in the determination of
whether should reduce either the moral or blame as- culpability sense, are because general
signed Kleypas.
they mitigating
“
”
basis
serve ’as a
sentence less than death.’ See
’they might
comments,
his
told the
Skipper,
them
direct contravention
to consider
mitigators
Skipper Eddings, pros- misconduct.
ecutorial Expert Regarding Witnesses
C. Comments committed additional mis- argues prosecutor the evidence in
conduct in argument by mischaracterizing closing
an Kleypas’ experts improperly express- attempt impeach with of those ex- his credibility regard
ing personal opinion
perts. of occurred first instance
The during prosecu- complained Park, Dr. Dr. Othmer and two
tor’s discussion of testimony witnesses. The stated:
of Kleypas’ expert prosecutor know, we can tell about a bias a com- “You sometimes something person’s on the stand and how de- let and remember Dr. Othmer did he ment they slip brutal I made note of it because I found it so
scribe the murder [C.W.]. occurred. He said and the death He intruded the death he intruded
shocking. Well, he said on I it did and Mr. Park the outside defendant occurred. guess murder of Bessie bad to some The [Lawrence] did some people. things off as some bad to some are the defendant things murder doing [C.W.] passed describe would who can what I submit [C.W.] people happened people. belief.” terms aren’t in those worthy your simply but was overruled counsel based
Defense immediately objected that the comment was “on what the ev- assertion
the prosecutor’s the defendant.” shows about
idence comment told prosecutor’s prosecutor’s defense because those it should not believe the experts
opinion, *172 sanitized terms. A described the murders in prosecutor
experts or her belief or not his
should express personal opinion or evidence or the of the or
truth guilt falsity any testimony (KRPC) Professional Conduct Rules of
defendant. See Kansas 406),
3.4(e) (2001 Ct. R. Annot. 1 American Bar Asso- Kan. (ABA) Prosecution for Criminal Func-
ciation Standards Justice, Function, 1993). (3d 3-5.8 ed. Standard “The
tion and Defense to comment on the of not credibility allowing prosecutor
point the
of a witness prose- expressions personal opinion unsworn, are a
cutor form of unchecked not commen- testimony, Pabst, State v. on the of the evidence case.” 268 Kan.
tary
personal opinion credibility
clearly improper. also made other comments prosecutor relating Kleypas’ Preston, Dr. stated: “Dr. Pres-
experts. Regarding prosecutor
ton admits to he one cannot tell about the behavior you thing
of the defendant on the of the murder at his night by looking
brain.” Dr. stated: Regarding Lipman, prosecutor
“He was the one that was told not to defense his notes to the stand bring did what those notes have in them? had a about a notation conversation that had “They the Doctor with the de- Doctor, what
fendant did the tell defendant that he had been cocaine using on the he murdered night [C.W.].”
Defense counsel to this comment as a mischaracteri- objected but
zation was overruled. The then referenced Dr. prosecutor
Park, noting: “Mr. Park went from he California and went through expert through —he’s record for the defense. He said the defendant has an excellent prison record but wasn’t to tell about the of the file that the defendant going you part says
victimizes weaker inmates and he wasn’t to tell about you going part file that . . . defendant ‘was an says about the races.’ agitator prison “... was I the one that had that out in the of the defendant’s bring questioning
own expert.” defense counsel’s numerous were overruled.
Again, objections with to Dr. stated:
Finally, regard Gentry, prosecutor “It is curious that one Dr. could have a test Gentry, that had psychologist, given scale built It into it. is the MMPI test and the scales validity validity remember indicate —are an indication of whether the who takes the test is person lying not. And isn’t it that this is the one test that Dr. interesting didn’t Gentry give and what Dr. excuse for not this test? said He that a Gentry’s schizo- giving would . . . sit well, never the test. Remember he said—he phrenic said through it, he sit but, wouldn’t he would be ladies walls through climbing gentle- men, have seen the defendant here for you month and haven’t seen sitting you and, fact,
him the walls his behavior has been so here that climbing good defense now claims it is a And look his school records. He’s mitigator. nursing
1107 didn’t student, tests and he climb He took school he’s the honor roll. nursing take the MMPI because to tell us that he walls. Are really they trying couldn’.t scales.” were afraid of the or was it because validity of a they schizophrenia were overruled. counsel’s
Once defense objections again, be- above statements were that the contends improper
Kleypas to insinuate the evidence in an
cause mischaracterized attempt they from the were to hide information
that the defense trying experts of his He that this experts attempted impeachment
jury. argues
constituted misconduct. and in manner is wide latitude in
A language given prosecutor as it is consistent with long closing argument presentation be drawn from evidence adduced. Reasonable inferences may wide latitude in
the evidence and the given discussing prosecutor 669, v. 664,
the case. State
257
(1995). it is state facts argument closing improper See State v. are evidence or to the evidence. not in contrary White, v.
Heath, State 557, (1998); 583, 957 Kan. P.2d 449 264 Hill, 302, 950 See also
263 Kan. P.2d 1316 People (1998) 800, 823, Cal. 72 Cal. 2d P.2d 4th Rptr. to draw have wide latitude in-
(stating although prosecutors trial, the evidence
ferences from mischaracterizing presented misconduct).
the evidence is state-
With to Dr. Preston’s testimony, prosecutor’s regard tell one that he cannot
ment: “Dr. Preston admits thing you of the murder
about the of the defendant on behavior night brain,” accurate, was a reason- at his while entirely
by looking that he Dr. Preston testified
able inference from the testimony. in the flow
was unable to that because abnormalities Kley- say brain, Preston also would act in certain Dr. way.
pas’ was from the scan of brain
testified that there no tell way Dr. would cause. Pres-
what behavioral affect brain injury Kleypas’ was of the
ton did might type testify damage On the related to sexual violence.
manifest itself in syndrome
whole, however, was correct statement factually prosecutor’s did not mischaracterize testimony.
With of Dr. testimony prosecutor’s regard Lipman, that the defense
comments insinuated trying keep clearly *174 from the first Dr. was
information that jury, noting Lipman court,
asked not to his notes that the then bring by stating
notes had a notation in to the use them effect that did not Kleypas the date
cocaine on The first is one which insinuation question. draw, should be allowed to as Dr. con- prosecutor Lipman
firmed he was asked that not to the notes with specifically bring
him to the trial. cross-examination,
The second insinuation is more On troubling.
Dr. was asked whether him he was told Lipman using Kleypas
cocaine on the stated murder. Dr. that night Kleypas Lipman
had denied cocaine that using night. Contrary prosecutor’s statement, it is not known whether that information was in
closing notes. was
Dr. There evidence no that Lipman’s absolutely
defense to hide the notes fact in order attempted prevent fact,
from indi- reaching jury. prosecutor’s questioning
cated that the State was aware of the fact told that had Kleypas
Dr. that he was not cocaine the of the murder. using Lipman night
To that Dr. was to hide the information suggest Lipman attempting
was unwarranted the evidence and outside permissible
bounds of inference.
Dr. testified Park record that regarding Kleypas’ prison Kleypas
made an excellent to life in with few adjustment prison problems. cross-examination,
On a correctional prosecutor highlighted checklist in which “victimizes weaker in-
adjustment phrases
mates” and about race” were The contained. “agitator prosecutor Park Dr. was not tell the
argued during closing going
about the checklist that Dr. Park was information. implying hiding
While an such inference is within the it is wide lati- questionable,
tude to a that it is at least accurate given prosecutor factually
and consistent with the evidence. comments with to Dr. reason prosecutor’s regard Gentry’s
for not an MMPI test are more giving Kleypas During troubling. redirect,
defense counsel’s Dr. was asked an MMPI Gentry why
test was not to a normally given person suspected being par-
anoid He answered: schizophrenic. “There is an old school like what is the graduate joke goes something profile
of a on the MMPI and because the answer paranoid schizophrenic got you, did, she it an MMPI and if he or wouldn’t sit through schizophrenic paranoid it would be so interpret.”
would be distorted impossible at decision on stated that the time he made the then
Dr. Gentry MMPI, evi- he had to administer
whether enough diagnostic made that he had his from other
dence already diagnosis. testing comments, “He stated: said those brief
From prosecutor the test. Remember he would never sit through
schizophrenic it, well, he he wouldn’t sit would said
said—he climbing through told the that it had the . . . .” The then
the walls prosecutor observe in the courtroom and look
opportunity showed record and that never “climbing signs
Kleypas’ us stated: “Are to tell that he walls.” He then they really trying because of a it be- take the MMPI
couldn’t schizophrenia afraid scales?”
cause were they validity *175 to bounds the latitude it is within the of
Certainly, prosecutor’s even ask certain tests were or were not given why
question from test that the in- to draw an inference that
die provided jury been the one. It would have within bounds
ference reasonable was latitude to to the that
to the suggest jury Kleypas prosecutor’s the because Dr. was afraid of the MMPI test
not Gentry given However, the built-in scale. due to the MMPI’s
results validity Dr. not free to mischaracterize and was exaggerate
prosecutor Dr. to lend credence to that inference. Gentry testimony
Gentry’s does not the MMPI test that he
testified normally give persons because of ihey generally schizophrenics being paranoid
suspected results the and the test would distorted not sit test
will give through because he al- in case the test was
and that unnecessary Kleypas’ Dr. did to form a had information Gentry diagnosis.
ready enough the walls” if he adminis- that would
not say Kleypas “climbing test. those the MMPI
tered closing put argument prosecutor’s used standard as in mouth and then that
words Dr. Gentry’s to the conduct to his argument Kleypas’ support
comparison mis- did not have This argument Kleypas schizophrenia.
jury the evidence
characterized improper. Referencing Regarding Denigration Mercy and
D. Comments Thoughts
Victim’s the that certain statements made contends prose-
Kleypas itself consti- crime
cutor concerning during closing argument He
tuted misconduct. claims the com- prosecutor’s prosecutorial
ments to show mercy by urging denigrated concept jury that he showed to the same victim. mercy Kleypas that the
further claims his prosecutor prejudiced rights by referring
to an of the crime which contained facts “imaginary script”
evidence. contends that the committed Finally, Kleypas prosecutor focus on issues
misconduct irrelevant to the urging death of whether the should be
question imposed.
In his statements which concerning argument denigrated of certain statements made mercy,
concept Kleypas complains lack of to the victim. regarding prosecutor Kleypas’ mercy the victim’s stated: “Look describing injuries, prosecutor
these Do see in these Do any you leniency pictures. pictures. you
see at all in these contends that mercy pictures?” Kleypas
statement should not improperly suggested jurors they because he had not shown to the victim.
give mercy mercy
There is some over whether it is for a dispute improper prose
cutor to to a should show a de argue sentencing jury they
fendant the same that the defendant to the victim. mercy gave have
Some courts held that this is an type argument improper calculated to influence the sen
appeal sympathy Dixon, 743,
tence. See Lawson v. 3 F.3d (4th 1993); Cir. Rich State, 1107, 1109 (Fla. 1992);
ardson v.
604 So. 2d
State,
Crowe v.
592-93,
582,
(1995);
State,
Ga.
argument proper granted prosecutor about the effects of the crime as as the does
argue long prosecutor
not to the that it is from to suggest jury prohibited showing mercy
the defendant because he she to none the See victims. gave Ochoa, 353, 464-66, v. 19 Cal. 4th 79 Cal. 2d
People Rptr. (1998); Summit,
966 P.2d State v. 2d 454 So. 1108-09
(La. 1984);
Hackett,
78, 93-94,
Com.
558 Pa.
aIn it is for the to be able to evaluate capital important jury
whether defendant is As of the same deserving mercy. part however, it is to clearly
concept, proper prosecutor argue We hold it is for the that the mercy. proper
against granting is not the defendant the to that deserving jury’s argue
prosecutor actions, as the as the defendant’s because of long prosecutor
mercy the to the that it state law
does not jury by arguing improperly de- to the defendant because the from mercy
prohibited granting to the victim.
fendant showed none case, not the in this while
The statement expressly imploring he to the the same that showed to show mercy Kleypas
jury However, it
victim, did not this concept. sug- suggested implicitly Therefore, not find the could to the that mercy. jury
gest Summitt, Hackett, Ochoa, we com-
line conclude that the with latitude not and were within the afforded
ments were improper
the prosecution. raises a similar issue out that prosecutor pointing
Kleypas that the same victim
further mercy given suggested stated: “The jury,
given Kleypas. arguing prosecutor to let the defendant be sen-
defense will with attorney you plead but about this. When the defendant
tenced to for fife think prison and he was over house on March of 1996 over [C.W.’s] on the that
there —” At this objected, grounds point, to ask the same kind of was about show
prosecutor shown C.W. The court then ordered the had
mercy to make
prosecutor argument. above, whether such an it is
As discussed questionable argument, The would have been
even if made improper. prosecutor, and the court action defense counsel in trial objecting
prompt error from occurring. argument kept prohibiting statement, er- did not constitute the objection, up
prosecutor’s
ror. his contention that area
The next by Kleypas regarding argued has to do with the mercy concept denigrated prosecutor of what an during “imaginary happened script”
prosecutor creating have been.
the incident and what victim’s Kley- thoughts might introduced in creating script prosecutor
pas argues create, arouse, not in evidence
facts unduly attempted
inflame the jury. sympathy
The four statements which were made at Kleypas complains
different the to a points during argument. prosecutor’s Referring victim, of the stated: “When someone’s
picture prosecutor eyes [C.W.j’s closed
are are in this look almost picture, they peaceful. her, that was
But can bet when he her weren’t you beating eyes
closed and it was but There was no anything peaceful.” objection
to this and statement the statement does constitute miscon-
duct. A to allowed reasonable inferences from prosecutor argue
the evidence and it is to reasonable infer from the de- injuries
scribed that the suffered the victim was severe and not beating was the which statement.
“peaceful,” import prosecutor’s however, is a
There with the next of statements problem, group victim’s
complained by Kleypas. injuries, describing chair, stated that was when victim tied to a she
prosecutor and bruised her own in the An
struggled get away leg process. that there was no evidence how the bruise
objection regarding
occurred was victim, overruled. In reference to a photograph we stated: “What don’t see in this are prosecutor picture tears, fear,
tears. I’m sure there must have been tears of tears of and tears for her dreams that would unfulfilled.” Defense
pain, go
counsel and the trial court overruled after assured objected being that he would not further into matter. prosecutor go
Later, the stated: prosecutor suffered, “Also talk about the mental must have the un- [C.W.] anguish couch, as to her fate. He burst in her back certainty forced knocking against hall, her knife down that more 40 feet than down hall. point long long
Think of what she must have when he burst that door. thought Then through think she must have felt when she saw that knife. There is anguish song that came out several about men aboard years storm had ago sinking ship, struck knew down the men were to die ship going they going Well, and the writer said the turned waves the minutes to hours. song think of
how time have must seemed He was there one and a long half [C.W.].
to several hours. And that must seemed a have lifetime indeed it [C.W.]
was her lifetime. was It the rest of life. What did she he her think when burst in me, the door? Sure at she some can’t this isn’t point thought happening real, it can’t be And later as he was her she must happening. attempting rape have this is the worst I can survive. I this. have While thought just get through him, this, he was her she stimulate have endure orally must making just thought *178 to die. This at some she realized I’m it but going guy point get through [sic]
jest kill me. is to going Did she have a to think about her she have even one moment parents. “Did sister —” think of her brother and
moment to at but was over- this the
Defense counsel objection objected point
ruled. was to what the victim think- comments
Prosecutorial referring to on facts ask the are because they jury speculate
ing improper Combs, 278, 282-83, See State v. 62 St. 3d Ohio
not in evidence. to create is for the N.E.2d 1071 It
581 prosecutor improper to create and arouse the
an in order prejudice “imaginary script” State, v. See Urbin So. 2d 714
and of the sentencing jury. passion (error words
411, (Fla. 1998) for to 421 prosecutor put imaginary State, 1215, v. (Okla. mouth); 765 P.2d 1220
in victim’s McCarty defend- 1988) (error to that the
Crim. suggest App. prosecutor victim). the when he murdered
ant was and grinning laughing such comments the State
The during pen- argues allowing Haskett, trial not People citing improper,
alty phase (1982). Haskett, 3d 640 P.2d
Cal. 180 Cal. Rptr. it was im- Court ruled that not
the California necessarily Supreme the in the shoes of victim itself for the put prosecution
proper 3d at 863- on her. 30 Cal.
and the acts inflicted suffering imagine conclusion, the court stated:
64. In so reaching at are the passions jury inappropriate “Although appeals sympathy omitted], at decides question phase juiy [citation guilt phase facts, assessment but on the moral of which not resolution turns only jury’s death. It is be on whether defendant should put of those facts reflect they elements that the but sympathetic only necessary, jury weigh appropriate, the conscience. those that offend [Ci- defendant’s may against background is the of the most considerations In this one significant tations omitted.] process, of the offense from the victim’s Hence assessment nature crime. underlying 30 Cal. 3d 863- to the task of would appear germane sentencing.”
viewpoint 64. trial courts Court directed the the California Supreme
Accordingly, and
to strike a careful balance between probative prejudicial relevant on emotional allow evidence and
and though argument divert the that would but evidence or deny argument
subjects whether
from its role determining soberly rationally proper
the defendant should Cal. 3d at 864. The court death. put
concluded that the comment was relevant “insuf- prosecutor’s reversal. 30 3d at 864. Cal.
ficiently inflammatory” justify are
Prosecutors allowed introduce relevant evidence show
the victim’s mental and further to make anguish arguments
inferences from the that the evidence victim suffered such mental However, where relevant. cross the fine when
anguish, prosecutors make an to tell the what
they up imaginary script purports was victim where there is no evidence to such feeling, support At that becomes evidence that point, script. imaginary script
was not admitted trial. during allowed to describe the violence prosecutor correctly
of the murder and that took in with everything place conjunction
it, as well as the to that the victim could have suffered argue jury However, mental when the
great anguish. prosecutor began spec- toas the victim’s and an
ulating thoughts essentially making up victim,
eternal for the he crossed the fine into a blatant dialogue the to misconduct, emotions of the This constituted as
appeal jury.
did his the to that the victim bruised her while speculation jury legs to no where evidence as existed to the cause
trying escape actually
of the bruise.
The final made with to the argument by Kleypas regard prose-
cution’s is that the denigration mercy prosecutor repeatedly
showed the to victim the while if it saw picture jury asking
tears in her that this was eyes. argues Kleypas request obviously
not and, based on the instead, evidence as no dead victim can cry
awas naked and of the appeal sympathy prejudice jury. misstates what occurred. The did argument
Kleypas’ prosecutor
not ask the whether it saw tears in the rather he asked jury picture, it if saw in the jury leniency mercy injuries depicted by Later, the told the that there
picture. prosecutor although
were no tears there must have been tears obviously picture above,
at the time. As noted the tears speculation regarding
was not because the improper prosecutor necessarily speculated
that there were tears but because the then prosecutor purported
to However, know the victim’s no there was misconduct thoughts.
in the use of the prosecutor’s picture. During closing argument, to and use refer allowed
we have photographs prosecutors is not inflame the as die as
victims
unduly
passions
purpose
long
See State
it towards the defendant.
prejudice
279, 287-88,
s
Walker, 252 Kan. prosecutor case to of the in this show the nature
use injuries photograph that circumstance was relevant
inflicted support aggravating heinous, in an atrocious was committed murder especially
cruel manner. Kleypas Agitator as a Race Characterization
E. The im- that the argument, closing argues prosecutor,
Kleypas was a who “race told the Kleypas agitator” preyed juxy
properly that this characterization was
on weaker inmates. argues evidence and was unfair. based on the
This The is without merit. referring prosecutor argument Dr. of defense Park cross-examination
his Kley- expert regarding cross-examination, record. During prosecutor
pas’ prison contained a correctional checklist that
had adjustment highlighted about race.” “victimizes weaker inmates” “agitator phrases mentioned this checklist in then argument closing prosecutor circumstance he rebut adjusted alleged mitigating Kleypas’ life.
well to prison to characterize the an argument appeal attempts as an
racism; more Kley- appeal raising specter specifically, *180 if It was “violent race wars” sentenced start would prison.
pas conduct Rather, use of was a evidence it
not. proper Kleypas’ that did well in assertion he rebut prison society. Kleypas’ Alleged Suggestions to Kill that Could be Released
F. Kleypas
Again warned the that the jury improperly argues prosecutor
Kleypas be released kill thus could
that again, attempting Kleypas a death sentence into and intimidate jury imposing
frighten circum- to introduce
well as nonstatutory aggravating attempting also contends that future
stance of by using Kleypas dangerousness. us,” to the “God prosecutor suggested help phrase the death it for would
God imposing penalty. punish
It to make is references to defendant’s clearly improper po- Gibbons,
tential for future See State v. 256 Kan. dangerousness.
951, 963, It is also 889 P.2d clearly improper attempt
to introduce circumstance. See K.S.A. nonstatutory aggravating listed).
21-4625 circumstances to those It is (limiting aggravating
further to the that God would it suggest improper punish However,
for its actions in not the defendant to death. sentencing
the referenced did none those argument by prosecutor Instead, the
things. prosecutor argued: senseless, “Ladies and the death of Bessie Lawrence in 1977 was a gendemen,
brutal murder and the defendant convicted of second mur- tragic degree der in 1977 for the death of Bessie Lawrence he served about fifteen years us, and he out and within four he did it God prison got years within again. help he four murdered years again.”
These statements were made the dis- by prosecutor during
cussion of the circumstance had aggravating Kleypas previ- murdered and relate to another that circumstance rather than
ously future mis- dangerousness Kleypas. Kleypas’ argument
characterizes context the remarks and is without merit. Alleged Minimizing fury’s
G. Comments Responsibility contends that the committed misconduct prosecutor himself his actions had made the
arguing already
choice for the whether to the death jury regarding impose penalty. fhat these comments minimized the
Kleypas argues improperly sense of for the decision.
jury’s responsibility comments made at the outset
Kleypas complains following closing argument: prosecution’s “Choice, this of tire trial about choices. Choices that the defendant part has that the made and choices defendant has not. And now choice that must you Now,
make. we look at the crime the defendant committed and not necessarily the method he used but the manner which he committed that crime. we And crime, at
look the reason that he committed that to avoid arrest or prosecution. And we look the facts the crime and we look at the fact surrounding surrounding he the defendant and what has done in his And what we ladies and past. find, we is that the what discover has made the
gentlemen, choice us." defendant added.) (Emphasis *181 stated the that his
In argument, prosecutor closing summing up the his faced with been had already spending prospect victim, C.W., could him but he the because
life in identify prison to to make his to kill the victim
made die decision try good escape. to
Therefore, stated: had that the “[H]e opportunity prosecutor But he chose murder instead. rest of his life in the prison.
spend about the choice life in
He has made this Finally, prison.” prose- stated:
cutor the death is one of the hardest be told that “You imposing penalty things may do, that that are be true. But is the sworn will ever diat duty you may
you defendant has made choices and were it that decision. The undertake make made, be a in he could not for the choices he has today college graduate working he must answer those he did make choices now for the field of but nursing
choices.” to the above statements.
There were no objections 320, 328-29, U.S. 86 L. Ed. 2d
In Caldwell Mississippi,
231, 105 (1985), the United States Court held S. Ct. 2633 Supreme Amendment, “it is
that under the constitutionally Eighth imper on a made a death sentence determination
missible to rest by to believe been led
sentencer who has responsibility of the defendant’s death rests
determining appropriateness had, Caldwell in in
elsewhere.” closing argument, prosecutor its decision was not final and that the de
informed jury an an The Court noted that such
fendant would receive appeal. of bias towards the death an intolerable danger
argument presents death on vote for assump encourages would be corrected on error in its decision
tion that appeal. Further, the Court found U.S. at 330-31. prosecutor’s and, thus, Amendment violated the
comments Eighth specifically harmless error rule but rather the
were not subject general U.S. at 339-41. error. 472
rule for constitutional States Su construed United
Caldwell was later narrowly Oklahoma, 1, 9, U.S. L. Romano v. 129 Ed. Court. See
preme basic rule Cald 1, 114 S. 2d Ct. 2004 reaffirming “ stated that establish a Caldwell
well, Court Romano ‘[t]o must show that the remarks
violation, a defendant necessarily local the role described assigned jury improperly
1118 ” Adams,
law.’ 512 U.S. 9 v. 401, 407, at 489 U.S. Dugger (quoting 435, [1989]).
103 L. Ed. 2d
The at in the case hand did not prosecutor attempt improperly
describe the role to the He did not that some jury. assigned argue
other such as trial an court bore the party judge appellate Rather,
ultimate for fate. he responsibility Kleypas’ argued himself bore fate. for his Such an
Kleypas responsibility argument Bell, 320, (6th
is v. 1998); See Coe 161 F.3d 350 Cir. appropriate. 1164, v. 1238, 49, 13 Cal. 4th 56 Cal. 2d 920
People Jackson, Rptr. (1996);
P.2d 289, 318-19, 1254 v. 176 Ill. 2d 680 People Burgess, (1997); Scales, 1326,
N.E.2d 357 State v. 655 So. 2d (La. 1334-35
1995); v. Harris, (Mo. State 870 1994); S.W.2d 807-08 State 426, 443,
v.
(1995);
341 N.C.
Brimmer, (Tenn. 1994). 876 S.W.2d 85-86
The one case
Black,
relied
Buttrum
F.
upon Kleypas,
(N.D.
1989),
Ga.
(11th
ments that the defendant had her own prosecutor “signed
death warrant” and alone was for her death. The responsible pros
ecutor characterized the as one in the criminal jury “merely cog Thus, Buttrum, 721 F. 1316.
process.” Supp. prosecutor
did minimize the role of the in the refer improperly jury process, to the one in the That is different
ring jury only cog process.
than the in the case at hand which argument suggested should be held for his own actions. The Kleypas responsible comments were
prosecutor’s improper. Urging fury
H. Comments the Death Sentence for Impose
the Murder of Bessie Lawrence contends that the committed misconduct prosecutor his comments murder of Bessie
through regarding prior
Lawrence. He that comments argues prosecutor’s improperly the death for the murder of
urged impose
Lawrence as well as the murder C.W. circumstances, the
Regarding Kleypas’ alleged mitigating pros-
ecutor stated: what are “And circumstances that the defendant
claims death and the death of Bessie [C.W.] mitigate against asked the
Lawrence?” jury regarding Kleypas’ prosecutor what he did
mental illness: “Could outweigh possibly out- it and could it
[C.W.], manner in which he did possibly counsel’s Bessie Lawrence.” Defense the death earlier of
weigh overruled. latter comment was
objection (Tenn. 1994), State v. 885 S.W.2d cites Bigbee, committed misconduct. that the
his Big- proposition prosecutor
bee, murder been convicted the defendant had felony previously death sentence for mur- and was facing Montgomery County *183 the
der in Sumner closing argument penalty County. During an would be the death the that argued prosecutor
phase, not for in which to defendant only way
appropriate punish but also
Sumner for killing. killing County County Montgomery to court stated:
In this Bigbee improper, finding as an existence of the conviction the State prior “Obviously, may argue however, in of the death circumstance penalty; supports imposition aggravating case, with- that limit and this the State’s went strongly beyond implied, argument death as be sentenced to additional out that die defendant should flatly stating, tried, had been The defendant already conviction. previous punishment convicted and sentenced for crime. encouraging Argument separately S.W.2d at 812. was an additional impose punishment improper.” error, alone, have court that this
The noted standing might Bigbee it reversal other errors mandated
been harmless but combined with at 812. 885 S.W.2d
of the defendant’s sentence. our case. was different from situation in somewhat Bigbee evi to admit that it is not
Tennessee has determined appropriate conviction crime where the facts of
dence prior regarding specific that the circumstance
on its face satisfies the prior aggravating Bates, 804 S.W.2d is See State
crime relevant to prove. than Thus, to the crime other (Tenn. 1991). reference
879-80 prior contrast, as relevant. In occurred was
to state that it simply noted, crime allows some evidence Kansas prior
previously
to be introduced. case at in the statement
More importantly, prosecutor’s should be
hand, does not that in unlike Kleypas Bigbee, argue that the crime but instead for his argues mitigating
punished prior the death should not forth
circumstances outweigh by Kleypas put Lawrence. Bessie The fact that convicted Kleypas previously
of a in which inflicted death on another an felony Kleypas ag- Thus, circumstance. 21-4625(1). K.S.A. the death of
gravating circumstance,
Lawrence is an and it was aggravating entirely for the the relative of that
proper prosecutor argue weight ag- circumstance circum-
gravating compared Kleypas’mitigating
stances. The did not commit misconduct in this in- prosecutor
stance. Alleged Regarding Aggravating
I. Misstatement of the Law
Circumstance of Whether Committed the Crime Avoid Kleypas
or Prevent a Lawful Arrest or Prosecution contends that the committed misconduct
Kleypas prosecutor the law circumstance of
misstating regarding aggravating
whether committed the crime to avoid or a lawful Kleypas prevent
arrest or that the prosecution. argues Kleypas prosecutor improp- that certain evidence which occurred after
erly argued
the murder could be used show that committed the
murder in order avoid arrest and prosecution. evidence showed committed the arguing
murder in order to avoid arrest and prosecution, prosecutor evidence that knew he would be
highlighted Kleypas prosecuted
for the and that the victim could him. The rape identify prosecutor
also noted that started to tie the victim but then Kleypas up thought
better of it and killed the victim instead. the FinaUy, prosecutor
stated: “And the evidence of this is clear not the defendant’s own only by actions and
words and not what he did to that only by but what he did [C.W.] afterwards. night truck, He loaded his evidence of the up murder with him and fled taking town. off, He took he ran and he killed so that he could avoid arrest. [C.W.] There is no other conclusion that can be reached from this evidence.”
Evidence that loaded his truck and left town after Kleypas up victim, the while definite
killing proof Kleypas trying arrest,
avoid does not itself that he fact in killed the victim by prove
in order avoid or arrest for the crime of This prevent prior rape.
case is similar ato hard 40 case decided this court in State v.
Reed, 256 Kan. P.2d Reed attempted rape failed, and hid the the killed her and when
a woman body. attempt that this established the Reed in
The aggravating argued prosecutor that this ar- to avoid arrest. Reed claimed
circumstance killing However, this court misconduct. constituted prosecutorial
gument and noted:
disagreed did the crime the defendant the above remarks not identify in
“[T]he prosecutor to conceal his relate to the defendant’s efforts While evidence committed. may victim, relates to his con- circumstantial evidence also same murder of bears of the victim or directly upon cealment of kidnapping attempted rape arrest or circumstance of lawful prose- avoiding preventing aggravating at 566. cution.” 256 Kan. case at hand. While evidence same is true Kleypas not, alone, show that he after murder does town
left standing for it is relevant the murder to avoid arrest
committed rape, to avoid arrest for not It shows that
fact. only Kleypas attempted and, but the thus raises the inference
the murder Kleypas rape to avoid of a with the murder
committed flight, part plan, along
arrest for rape. should not in this that our Reed argues analysis apply
Kleypas First, before that the in Reed
case. he contends activity happened This is incorrect. Reed’s actions
the murder. hiding patently Sec- as did in this case. occurred flight postmurder, Kleypas’
body
ond, that our in Reed should not analysis apply argues Under stan- cases standard.
because higher capital require and, thus, however, fair
dard, the evidence is relevant game circumstances, the Given these
comment pros- prosecution. comment did not constitute misconduct.
ecutor’s Regarding Alleged Evidence the Law Misstatements Sup- J. Aggravating Heinous, Atrocious, Cir- or Cruel Manner
port
cumstance also misconduct that the committed prosecutor argues what law
in his jury by misstating regarding argument heinous, atrocious, or cruel could be used to
evidence support *185 that the circumstance. contends
manner Kleypas pros- aggravating the circum- told the that it could consider
ecutor improperly was com- whether the murder of the
stances determining rape atrocious, heinous,
mitted in and cruel manner in order to satisfy circumstance. this was mis- aggravating According Kleypas,
statement of the law and constituted misconduct.
The was instructed: circumstances are those “Aggravating
which increase the of the offense or add to its enormity guilt which is above and the elements
injurious consequences beyond
of the crime itself.” is that the Kleypas’ argument attempted rape
is not above and itself, the elements of the at- crime beyond is an element of the crime of murder. See
tempted rape capital 21-3439(a)(4). Therefore,
K.S.A. it was im- according Kleypas, for the that the could
proper prosecutor argue satisfy rape circumstance.
aggravating is devoid of merit. A review of the argument
Kleypas’ prosecu-
tor’s statements reveals that the was regarding rape prosecutor
not that the fact itself fulfilled die arguing rape aggravating but, rather,
circumstance that the violent and brutal arguing
manner in which the was committed to make the kill- rape helped heinous, atrocious, and cruel serious abuse
ing by causing physical Thus,
and mental was not anguish. argument improper.
K. Cumulative Prosecutorial Misconduct final misconduct are
Kleypas’ arguments regarding prosecutorial
that the cumulative misconduct on the war- part prosecutor
rants reversal of the death sentence and that the misconduct was
so that he should be to the death grievous again subject penalty.
We consider his first but his second argument, reject argument. in the record misconduct so as to
Nothing suggests grievous sup- a conclusion that should not
port again subject
death penalty.
Because we are the defendant’s sentence due to other reversing
errors for new we need not remanding sentencing hearing,
determine whether the cumulative misconduct prosecutorial However,
would be so as to also reversal. we note great require
that the instances of misconduct were numerous: The prosecutorial made an and false insinuation that
prosecutor improper
would and, thus, have access alcohol in have a prison trigger
his cross-examined a de- paraphilia. prosecutor improperly *186 of the The to inflame the an in
fense jury. attempt passions expert to and tried in- a motion in limine violated improperly
prosecutor de- would be an life for the
sinuate easy jury prison to misstated the law the
fendant. The jury improperly prosecutor circumstances must excuse justify mitigating
by implying also to valid.
the crime be The prosecutor improperly urged because were not circumstances they mitigating
jury disregard crime, Kansas law. related to the contrary prose-
causally his belief that
cutor flien experts expressed Kleypas’ improperly their in a man- and mischaracterized
were not believable testimony that the were hide made it seem
ner which experts attempting made an
evidence from prosecutor imag- jury. Finally, up the victim was to tell the what which purported
inary script even there was no evidence as occurred the crime though
feeling Instead, the was mere the victim’s speculation thoughts. script calculated to inflame the
on the of the sympathy prosecutor, part
and of the jury. passions misconduct the instances appear
Many prosecutorial the law
stem from misunderstanding regarding imposition be as intentional. and cannot characterized
of the death penalty
Others, however, in and can would be any improper proceeding on the to secure be
only put prosecutor explained pressure case.
the death profile high review, it is discussion of our out in our standard
As pointed of the and
difficult consequences prosecutor’s judge impact com- case. It must noted that the in this
improper arguments that, comments, instructions or rather than were
ments just ar- was instructed that such the court. The made juiy
rulings however, mean, This does not evidence. were not
guments While none of the instances of have effect. did not pros-
they isolation, misconduct, so have been taken
ecutorial may preju- sentence, us to reverse his so as to
dicial to require misconduct effect
net cumulative very might prosecutorial an additional basis for reversal.
well have provided
Conclusion murder, convictions ag- attempted rape, capital
Kleypas’ bur- sentences for are affirmed. His aggravated
gravated burglary are vacated and remanded for resent-
glary attempted rape vacated, His sentence of death for murder
encing. capital
the matter is remanded with instructions to hold new capital
sentencing hearing. I in all J., dissenting: join majority opinion
Davis, respects *187 on the issue I dissent from the
except equipoise. respectfully conclusion that the the within Kansas
majority’s weighing equation statute,
death 21-4624(e), K.S.A. violates the Eighth
Amendment to the United States Constitution because it mandates
death where circumstances and circum- mitigating aggravating
stances are found to be The equal (equipoise). provisions express 21-4624(e) K.S.A. mandate the of a death sentence imposition
where “the existence of such is circumstances not out- aggravating circumstances which are found exist.”
weighed by any mitigating
Yet, the the of the majority changes language express legislature that death be mandated where circum-
say may only aggravating
stances circumstances to exist. outweigh any mitigating found The reverses the the majority weighing equation adopted leg-
islature 21-4624(e) in K.S.A. with the idea that the intent of the is to be carried out in constitutional manner. There is
legislature
no based on the question, express language legislature,
it intended to mandate the of a death sentence where imposition
the existence of such circumstances is not aggravating outweighed circumstances found to exist. The
by any mitigating precise ques-
tion was to the attention of the brought legislature testimony by
the who recommended that the statute attorney general, provide
for the circumstances to the cir- aggravating outweigh mitigating
cumstances before death sentence The may imposed. legis-
lature the rejected suggestion attorney general adopted
our statute. present however,
The the with its majority, replaces express language
own based its conclusion that this new language upon language
carries out the the intent of in a constitutional manner. legislature
Because the new mandated is language by majority contrary intent and expressed language adopted by legislature 21-4624(e),
K.S.A. I believe invades majority province of intent, of a In the face clearly expressed legislative legislature. as unconstitutional this clear strikes only language majority what
but legislature exactly language opposite adopts Constitution, the of the statute offends the
stated. If the language solution, and let so hold in my judicial opinion,
appropriate court’s consistent with the resolve the matter opin- legislature
ion. however, from the ma- I dissent
More respectfully importantly, contained in K.S.A. that the conclusion equation weighing
jority’s Thus, I conclude that there
21-4624(e) is would unconstitutional. it is in that constitu-
is no need to change weighing equation the Kansas Amendment as
tional under the Eighth expressed Arizona, U.S. Walton v. in accordance with
Legislature 2d S. Ct. 3047
111 L. Ed. contained in holds that the equation majority weighing Consti- 21-4624(e) United States and Kansas
K.S.A. violates the of death when the it mandates a sentence
tutions because aggra- are found to be in circumstances
vating mitigating equipoise. *188 21-4624(e)
K.S.A. states: “If, vote, a doubt that one or finds reasonable unanimous jury beyond in K.S.A. 21-4625 and amend-
more circumstances enumerated aggravating and, further, that the existence of such circum- ments thereto exist aggravating circumstances which are found to stances is not by any outweighed mitigating death; otherwise, exist, the defendant shall the defendant shall be sentenced
be law.” sentenced provided by be sentenced to
The statute that the defendant “shall” provides circumstances do
death finds that the where mitigating if circumstances. Theoretically, outweigh aggravating and were to determine that the somehow mitigat- aggravating balanced, would be the defendant circumstances were
ing equally death, would not
sentenced to as the outweigh ag- mitigators which has is whether a equation weighing gravators. question
Qie It is this result is unconstitutional. ques- potential produce is unlimited.
tion of law over which review appellate decision, has re- this court
As noted in previously majority was uncon- this same
jected weighing equation argument in State of a 40 decision
stitutional in the context hard sentencing
1126
v.
54,
However,
269
(2000).
Kan.
correctly points Spain premised part
on the cases are of limited concept noncapital precedential
value in cases due to the to which analyzing capital greater scrutiny cases Thus, must be held. See 269 at Kan. 59-60. Spain,
capital
the result in is not and the must instead Spain controlling, question
be lens of the strictures analyzed through specialized
United States Constitution with to a sentence of death. regard
The United States Court has a number of Supreme imposed on the States must limit
requirements capital sentencing process.
and channel the discretion of and in order to minimize judges juries
the risk of v. and action. arbitrary Georgia, wholly Gregg capricious 153,
428 U.S. reh. denied 859, 2909, 49 L. Ed. 2d S. 96 Ct.
U.S. (1976). time, At the same the sentencer must be allowed
to retain sufficient discretion to consider the circum- particular
stances of the crime and the characteristics of the defendant. See U.S. Carolina, 196-98; Woodson v. North 428 U.S.
Gregg, 304,
280,
944,
49 L. Ed.
2d
which this be which re- may accomplished through process the sentencer to certain
quires weigh aggravating mitigating
circumstances in order to determine
whether
defendant should
Florida,
sentenced to death.
v.
242, 259-60,
U.S.
Proffitt
913,
49 L. Ed. 2d
which the sentencer to determine whether cir- required mitigating
cumstances were sufficient to circumstances outweigh aggravating and channeled discretion). the sentencer’s
adequately guided
While the Court has numerous on the imposed requirements discretion, of the sentencer’s the actual
guiding channeling circumstances has left been
weighing aggravating mitigating In Zant the states. 462 U.S. 77 L. Ed. Stephens,
up *189 235,
2d
(1983),
tution does not a State to standards in require adopt specific the in its consideration and
structing jury aggravating mitigating
circumstances.” in Franklin v. 164, 487 U.S. Similarly, Lynaugh,
179,
155,
101 L. Ed. 2d
(1988),
“[W]e specific balancing
1127 factors in a sentencing proceeding capital aggravating gating
is constitutionally required.” v. theme in continued this Court Pennsylvania,
The Blystone 255, 110 (1990), S. Ct. 299, 108 L. Ed. 2d 1078 U.S.
494 Boyde 316, S. Ct. Ed. 2d
v. California, 494 U.S. 108 L. was whether the In Blystone, weighing equation question where cir the death
which made mandatory aggravating penalty constitu circumstances was
cumstances outweighed mitigating was, ruled that it “The
tional. The Court requirement stating: cases is satisfied
individualized by allowing sentencing capital 494 U.S. at to consider all relevant evidence.” mitigating the constitutional defined Court noted: “Within limits
307. The cases, States their traditional latitude
our enjoy prescribe murder which those who commit shall
method by punished.” at U.S. 309. whether was the same that in
In Blystone-. Boyde, question scheme, which death when
that State’s death required ag- penalty circumstances and circumstances outweighed mitigating
gravating circumstances life when aggravat- mitigating outweighed
required circumstances, was constitutional. The defendant argued
ing even if it have freedom death must reject penalty cir- circumstances
found mitigating aggravating outweighed Court, however, stated: is no such con-
cumstances. “[T]here in the of unfettered discretion
stitutional sentencing requirement are to structure and consideration and States free
jury, shape rational and ‘in an effort achieve a more evidence
mitigating ” U.S. at 377. of the death administration penalty.’ equitable statute which the Court faced a both Boyde, Blystone death when
mandated mitigators. aggravators outweighed however, case decided in with third death
This changed,
penalty
Arizona,
stitutionality penalty in this case. In order determinative of
is ultimately question decision in Walton context, it the Court’s necessary
place led to the decision.
detail events which up in Walton sen- that the statute issue
The Arizona provided if one or more “shall” death ag-
tencing judge impose
1128 circumstances is found and the circumstances
gravating “mitigating
are held insufficient call for leniency.” majority places great the difference between the of the Arizona
emphasis upon language
statute and statute. 21-4624(e) the Kansas K.S.A. provides
death is mandated where circumstances are not out aggravating circumstances. What the fails to
weighed by mitigating majority is (and
note that the Arizona Court still in Supreme interpreted to mean the same as that stated
terprets) weighing equation by
the Kansas statue: The death shall be where the penalty imposed are circumstances
aggravating
outweighed by
mitigating
Ysea,
State
372,
See
375,
circumstances.
191 Ariz.
(1998) (“If the finds one or more of the factors judge aggravating 13-703[F],
listed in the defendant is death and if the § eligible, factors are not factors listed
aggravating outweighed mitigating 13-703[G], Gretzler, State v. death.”); sentence is § resulting 42, 53-55,
135
Walton,
(1983);
Ariz.
at 687 (“The Arizona Court J., dissenting) Supreme has indicated that defendant’s will evidence
repeatedly mitigating
be deemed substantial to call for if the ‘sufficiently only leniency’ factors those in
mitigating ‘outweigh’ aggravation.”).
The issues in Walton as the result of a developed controversy
over
whether
formulation of the
violated
weighing equation
Walton,
In State v.
United States Constitution.
571,
159 Ariz.
(1989),
statutory arguing, the burden of on the de-
impermissibly places proof mitigation
fendant” and “it does not a reasonable doubt require proof beyond
that the factors ones.” The aggravating outweigh mitigating
Arizona Court these Supreme summarily rejected arguments. However,
Ariz. at 584-85. less earlier, than months the Ninth
Circuit Court of had been more to an attack on Appeals receptive Ricketts,
the Arizona scheme. See Adamson v. 865 F.2d statutory (1988). Adamson, the court held the death Arizona scheme unconstitutional: “While the statute does it nonetheless require the sentencer balancing, deprives
of the discretion mandated the Constitution’s individualized re- sentencing This because in situations where the quirement. mitigating aggravating balance, or, circumstances where mitigating are in give circumstances circumstances, below die but still fall weight aggravating court reservation Thus, a sentence less than death. court from bars the imposing statute *191 as it can mandate individualized can sentencing operate
presumption preclude sentence, in the context of criminal we note that and death ‘[p]resumptions as been viewed constitutionally [Citation have traditionally suspect.’ proceedings 865 F.2d 1043-44. omitted].” similar to the is
The above majority opinion holding strikingly the Ninth and Walton created with case. Adamson
this split, death scheme unconstitutional the Arizona
Circuit penalty holding to be Court found it constitutional.
while the Arizona Supreme Court certiorari in Walton in States
The United granted Supreme between Walton and Adamson. See the conflict
order resolve
Walton, U.S. at 647. Walton of the decision which are
There are two important parts case: issue in this Parts III and IV. In Part the resolution this that the Arizona stat-
III, the addressed Walton’s contention Court it Amendment because burden
ute violated the imposed Eighth
on to establish circumstances defendants sufficiently mitigating Court with
substantial call for leniency. quickly dispensed
this argument, stating: does not lessen method of the burdens of
“So as State’s allocating proof long or in this case element of offense State’s burden charged, prove every circumstances, a defendant’s constitutional the existence aggravating prove the burden of circum- are him not violated proving mitigating rights by placing U.S. at 650. to call for stances substantial leniency.” sufficiently III, alone, instructive, is not Part determinative
While standing issue, with the burden of mit- as is more concerned
our it proving rather than the circumstances mitigating weighing
igating circumstances.
aggravating
However, IV, Walton Court addressed the in Part equipoise The Court framed the issue fol- raised Adamson.
question that because “Walton insists statute]
lows: [Arizona’s provides death one or if more
the court ‘shall’ aggravat- impose held circumstances are are found circumstances mitigating
ing the statute creates an unconstitu- to call for
insufficient leniency, 497 U.S. at death is the sentence.”
tional proper presumption viz.,
651. This is the that a statute argument, equipoise requiring of a death sentence is unconstitutional where the imposition circumstances do not or are
mitigating outweigh equal ag- circumstances. The Court
gravating rejected argument, stating:
“Our recent decisions in foreclose this sub- [Blystone] [Boyde]
mission” and that “States are free to structure and noting again consideration of evidence ‘in an effort to achieve
shape mitigating ” a more rational and administration of the death equitable penalty.’
Thus, the Court in Walton that it found was not unconstitutional
for a statute to mandate death where circumstances aggravating
are found and circumstances are insufficient to call for mitigating is, under Arizona’s where the
leniency, interpretation, aggra- circumstances are not circum-
vating outweighed by mitigating
stances. That this was the Walton holding majority *192 Blackmun, demonstrated the dissent in Walton. clearly Justice Brennan, Marshall, Stevens, dissented, and ar-
joined by Justices
guing: “If the are circumstances in the mitigating aggravating equipoise, [Arizona] statute that the trial The requires impose assertion that judge capital punishment. a sentence of death in such a case runs counter to may imposed the directly Amendment
Eighth
sentence must rest
requirement
capital
‘deter-
upon
mination that death is the
ain
case.’
appropriate punishment
specific
[Citation
tion circumstances un- equipoise aggravating mitigating
der the United States Constitution. Wal- Contrary majority,
ton it makes clear that as as the statute does not long preclude
sentencer from evidence, relevant considering mitigating spe-
cific method of circum- balancing aggravating mitigating
stances is left
States. See
The Ninth Circuit Court of has that Walton Appeals recognized
overruled its Adamson decision regarding constitutionality Lewis,
the Arizona 614, statute. See v. (9th Adamson 955 F.2d 619 1992).
Cir. Illinois, The Court of in case handed down Supreme Walton, the Walton in
immediately prior presaged reasoning the Adamson and that its statute
rejecting holding argument
1131 the miti death unless because it mandated was unconstitutional circumstances. circumstances aggravating outweighed
gating Thomas, (1990). 57 The Illi 561 N.E.2d 137 Ill.2d v.
People Court has United States court found: “The
nois Supreme appar 494 U.S. 137 to rest in 299].” this [Blystone, argument
ently put Court, Walton, Later, 2d at 542. the Idaho
Ill. citing Supreme miti defendant
found its statute which provide required circumstances circumstances which outweighed aggravating
gating death, was State v. 123
in
to avoid
constitutional.
order
Hoffman,
638, 646-47,
Idaho on this issue echos the made
The
arguments
majority opinion
v.
the cases of State
and his reliance
Biegenwald,
upon
(1987);
v.
P.2d
834
1993). are None of these my particularly persua- opinion,
sive. 1987, and is thus was decided in
Biegenwald pre-Walton. re- of the New statute examined Biegenwald Jersey
language if defendant to death it found an sentence the
quired that was one more factor not by any
aggravating outweighed fairness” factors. The court found that “fundamental
mitigating doubt where that the defendant the benefit get
required (the factors) were
“the for his misconduct mitigating explanations of that misconduct as the culpable aspects significant
equally However, (the factors).” 62. Biegenwald aggravating N.J. to the United States fairness”
court did “fundamental key traditional concern for
Constitution but rather “New Jersey’s and its con- with offenses” defendants rights charged capital *193 meant to enact
viction that the legislation legislature actually factors. the factors to outweigh mitigating aggravating
requires to Court then See 106 58-67. The Biegenwald proceeded N.J. of what statute
rewrite the New say exactly opposite Jersey However, in this unlike the said. majority opinion language
case, on Court based its decision the New signif- Jersey Supreme indicated that the
icant which might history legislature legislative it in- been confused at what
have actually weighing equation notion of fun- based New
tended use. Biegenwald, Jersey’s
damental fairness and a tortured statutory provides interpretation,
little, if for a conclusion any, authority weighing equation
which violates the requires mitigators outweigh aggravators
United States Constitution. two cases some only post-Walton providing support are Both cases address the
majority Hulsey Young. precise raised and conclude that the mandat-
question weighing equation death where circumstances do not
ing mitigating outweigh aggra- circumstances is unconstitutional.
vating awas federal district court case decided Eastern
Hulsey
District of Arkansas. In habeas cor- Hulsey, petitioner sought relief from the former Arkansas death statute which
pus penalty
had been amended at the time of trial. The court found that the
Arkansas death statute was unconstitutional because it
mandated death if circumstances did mitigating outweigh ag- circumstances. 868 F. at 1103. The court was con-
gravating Supp.
cerned the situation would violate due following process: “If a tire found circumstances in neither mitigating aggravating equipoise, other, or, one more than the could not probative come to about conclusion fairly them,
what balance existed between would be the death they obliged impose sentence since the circumstances would not be found to mitigating outweigh 868 F. at 1101. aggravating.” Supp. the court in did not
Remarkably, Hulsey attempt distinguish Walton,
or even which, above, mention as noted addressed this issue in Part IV of Instead, relied on
precise opinion. Hulsey Adamson, in the case Walton in reasoning abrogated reaching
its decision. The court stated: Hulsey Circuit, of the Ninth the death “Following logic burden presumption claims shifting into one may whether the collapsed inquiry: weighing equation as drawn ‘offends federal due process death.’ The Court by effectively mandating
concludes sentenced, that under the Arkansas statute under which petitioner it does.” 868 F. at 1103. Supp.
It is whether with highly questionable, my opinion, Hulsey, Adamson,
its reliance on would have survived review. appellate
However, the State’s was dismissed appeal Hulsey Eighth
Circuit Court of because the State had failed to file Appeals timely
1133 F.3d 118-19 See its notice Hulsey Sargent, appeal. 1994).
(8th Cir. the Colo- Court the Colorado
In interpreted Young, Supreme law, statute enacted in 1988. Under
rado death pre-1988 penalty that find that the statute the Colorado aggravating required factors and then not
factors were outweighed by mitigating in order to was the
further decide that death appropriate penalty a 1988 law ehminated last death sentence. The step
impose factors were a death sentence where the
and mandated aggravating court, The in de- factors.
not Young outweighed mitigating unconstitutional, con- statute the death very
claring penalty the ehmination of the final
cerned with stating: step, for and im- result of decision that the relevant considerations “The against case is that the are in the death penalty particular equipoise
position the death sentence is determine with and appro- cannot reliability certainty A statute that under the standards applied by legislature. requires priate for fur- to be in such circumstances without death necessity penalty imposed deliberations, 16-ll-103(2)(b)(III), at odds as does section ther fundamentally and reliable conclusion
with die certain requirement procedure produce death should be ... A death sentence imposed penalty imposed. is arbi- violates and and such circumstances certainty reliability requirements in contravention basic constitutional [Citations principles. traiy capricious at 814 P.2d 845. omitted.]” Walton, that Walton
The court Young distinguished contending could a death sentence
did not consider the whether question are in when mitigators equipoise. aggravators imposed do believe that the n.9. The court stated: “We
P.2d be read contain States Court cases can
United fairly Supreme death can be when that the imposed suggestion to be considerations
sentencer finds mitigating aggravating above, Wal- However, at 846. as noted balanced.” 814 P.2d
equally
ton death the Arizona statute which mandated the pen- approved did where the circumstances not outweigh ag-
alty
mitigating
See
gravating scheme. Arizona’s court sentencing Young misinterpreted decisions, United States Court Young reviewing Supreme those must also determine whether
court stated: “The sentencer factors, factors are outweighed by aggravating
mitigating *195 1196; 1083, or, S. 110 Ct. at 110 S. Ct. at stated
Boyde, Blystone, Walton, are sufficient call for S. 110 Ct.
alternatively, leniency, Thus,
at at 3056.” 814 P.2d 846. the court the Ar- Young lumped issue in Walton with the statutes in
izona statute Boyde the circumstances to
Blystone requiring aggravating outweigh
the circumstances to A death. correct mitigating impose interpre- statute Walton
tation of the Arizona in demonstrates that Arizona
law the circumstances to the required mitigating outweigh aggra- circumstances in order to death sentence. Had
vating reject viz, the Arizona court statute,
Young correctly interpreted way Walton,
it was it would have had difficult time interpreted Walton from the Colorado statute.
distinguishing event, court did not decide base any Young ultimately Rather,
its decision on the United States Constitution. court
decided that if it was in its of federal wrong understanding prec-
edent, it would hold the Colorado scheme violated sentencing it, therefore,
the Colorado Constitution and invalidated the scheme
on state constitutional
It should be noted Colorado in reaction to Legislature decision, a new death statute which still Young passed penalty
authorizes the death where circumstances are penalty aggravating circumstances,
not it does not outweighed by mitigating although scheme,
mandate it. Under the Colorado after that the finding are circumstances not cir-
aggravating outweighed by mitigating
cumstances, a then determines whether the death panel judges is the for that case.
penalty appropriate punishment particular
Colo. Rev. Stat. 16-11-103. The Colorado has Court § Supreme
determined this satisfies the it identified procedure problem v. State See 723, (1999). Thus, 975 P.2d 736 it Young. Dunlap, that the Colorado Court’s to the statute
appears Supreme objection
at issue in was not that it authorized death where the Young ag- circumstances are cir-
gravating outweighed mitigating but, instead,
cumstances that it mandated death in that situation. Walton, case,
Since there has been one which held only Hulsey,
that a scheme for a sentence of death where statutory providing circumstances do not circum-
mitigating outweigh aggravating
stances barred the United States value Constitution its in the decision language Young provides highly questionable. case, but the ultimate decision in for the
some majority support but, on United States Constitution was based not
decision Meanwhile, Arizona, Idaho,
rather, Constitution. Colorado conclusion. reached the
and Illinois have opposite Walton, Court has reaffirmed the United States
Since Supreme the states to the abilities of enact statements
its earlier regarding Alabama, U.S. In Harris schemes.
their own weighing (1995), S. Ct. 1031 the Court faced the L. 2d Ed. statute was Alabama’s death uncon whether
question trial it standards
stitutional because failed give judge or verdict life death. jury’s advisory
accepting rejecting *196 violation, “We no have
The Court found rejected reemphasizing: and ‘a method for
the notion that balancing specific mitigating is constitu factors in sentencing capital proceeding aggravating ” U.S. 512. also at The Court stated:
tionally required.’ and how State should
“What is served by implement capital punishment purpose the extent that those involve
its scheme —to only questions capital punishment we, no Our matters over which as have issues —are judges, jurisdiction. policy to determine review extends whether only policy judicial legitimately power enactments, its choices of community, through legislative expressed comport U.S. 510.
with the Constitution.” 513 522 U.S. 139 L. in Buchanan Angelone,
Similarly, (1998), 702, 118 Ct. 757 the Court found that the
Ed 2d S. Eighth to be not instructed
Amendment did sentencing juiy require them, to or how stating: mitigators apply particular cases have established that the sentencer not “In selection our may phase, consider, not refuse to constitution- may any from precluded considering, However, the state may evidence. relevant [Citations omitted.] ally mitigating so it consideration as does not structure the mitigation long
shape jury’s relevant evidence. [Citations mitigating giving preclude effect from that restrictions on the concern has been Our consistent jury’s sentencing omitted.] able determination not the jury being give mitigating preclude effect from evidence. and held that the state must
“But have never affirmatively we gone further in which consider manner
structure in way juries mitigating particular added.) evidence." (Emphasis
The United States Court on the make Supreme opinions subject
it clear that as State’s scheme allows the sentencer to long give evidence,
effect Amendment is satisfied. Eighth mitigating Walton,
In the Court a statute similar to K.S.A. substantially upheld constitutional,
21-4624 as the fact it that mandated death despite
where the did circumstances not mitigating outweigh aggra- Walton and continues has followed circumstances. Arizona
vating on Walton its statute. and Idaho have relied Illinois apply constitutional, statutes hold their
Boyde notwithstanding also contain a which re-
they Kansas-type weighing equation are not
quires outweighed aggravators by mitigators. only -Walton case has which held a statute violates
post affirmatively
the United in States Constitution death where the mit- mandating do circumstances not circum-
igating outweigh aggravating
stances, mention Walton is in that it does Hulsey, unpersuasive Adamson, which Walton
and instead relies on abrogated. Young,
the Colorado Court decided the matter based on the Supreme
Colorado Constitution rather than the federal one and misinter- the Arizona scheme that result.
preted sentencing reaching reasons,
For all above Walton dispositive I would hold that
of the issues raised here and that the contained weighing equation 21-4624(e) K.S.A. does not violate the United States Constitu-
tion. also contends that the should be held weighing equation
unconstitutional under the Kansas Constitution. Based upon *197 decision, no to there was need address this
majority argument. dissent,
Based there would be a need to address my upon Kleypas’ However, so,
claim. in I note that court has never “[t]his doing
extended
to our citizens
the federal
greater protection
beyond
State v.
59,
54,
269 Kan.
guarantees.” result,
As a I the conclude that in contained equation weighing 21-4624(e)
K.S.A. does not violate the Kansas Constitution.
McFarland, the in dissent. joins C.J., foregoing I concur with Davis’ dissent. I J., dissenting: Abbott, Justice no
have dissent, with Davis’ I which quarrel anything Justice
1137 would add the I to be excellent. consider merely following
thoughts. 210.6(2) Penal Code Law Institute Model American § draft) circum-
(1985) 1962 official mitigating requires (adopting Model Penal circumstances. The
stances outweigh aggravating a a or before either before
Code judge, hearing provides if one of the the sentencer finds indicates
and the language death the it still circumstances may penalty impose
aggravating no suf- finds there are circumstances it “further
unless mitigating me, re- To substantial call for obviously leniency.”
ficiently forth with evidence of come the defendant mitigating
quires call for It substantial to
circumstances leniency. simply sufficiently cir- circumstances to the outweigh aggravating mitigating
requires death from
cumstances being imposed. prevent the cases set forth below. discussed Davis has thoroughly Justice on them.
I would rely 511, Arizona, L. Ed. 2d 110 S. 497 U.S. Walton v. (1990), Court stated:
Ct. does not a State’s method of the burdens lessen “So allocating proof long or in this case element the offense State’s burden to every charged, prove circumstances, a constitutional defendant’s existence aggravating prove the burden of circum- are not on him violated proving mitigating by placing
rights at 650. to call for 497 U.S. substantial stances leniency.” sufficiently basis that the Walton distinguish
Kleypas attempts sentenc- sentence if the does not mandate death
Arizona statute balance. The court finds the mitigators equal aggravators
ing Ricketts, v. in Adamson Circuit Court Ninth disagreed Appeals 1988) (en banc) that “under the (9th Cir. F.2d 1011 noting unless miti- statute, sentence will the death
Arizona imposed circumstances,” and circumstances outweigh aggravating
gating circumstances where
“in situations mitigating aggravating court . the bars the from balance . . statute
are in
imposing
n.50, 1043.
sentence
(1990), cert.
Bean,
2d
In People (1991), concluded: the court 499 U.S.
denied at this alone have burden of stage, defendant does not balancing
“The persuasion movant, so death bears State penalty, for the seeking party
1138 that, states, burden of as the statute there are
primary no persuading jury factors sufficient to die the sentencer from sentence mitigating preclude imposing of death for which the is defendant 137 Ill. 2d at [Citation omitted.]” eligible. 139.
Further, facts, “because this is not of it is im process intangibles, balancing proving defendants a ‘burden.’ After State as movant
proper
speak
has
having
the death sentence
attempted
should
defend
persuade
imposed,
ant
dissuade
from
so.
may
Whether defendant
attempt
doing
attempts
burden,
him;
to dissuade
he
decides to take
this
jury,-whether
die
up
up
law does not
him to take it
was convicted and received 40 hard sentence. His sentence was remand,
vacated and remanded. On the trial court found one ag circumstance, and one and found them to be
gravating mitigating The trial court K.S.A. 1999 21- equal weight. interpreted Supp.
4635(c) to 40 hard sentence when and miti require aggravators were in to a was sentenced term of 40
gators equipoise. Spain years See State v. 54, 58,
without 269 P.3d Kan. 4 621 Spain, parole.
On 21-4635(c) violated state and fed- appeal, Spain argued
eral constitutional cruel unusual prohibitions against punish- cases,
ment. He relied on death v. Sar- Hulsey penalty including (E.D. 868 F. 1993); 1090 Ark. 814
gent, People Young, Supp. (Colo. P.2d State v. 1991); 834 Biegenwald, N.J. (1987), State,
A.2d his here, as did it support argument.
relied on Walton.
This court out that the court in pointed Young interpreted
Colorado Constitution to broader under its provide protection
cruel and unusual clause than offered punishment Amendment United States For Constitution.
Eighth
reason, noted, this court Walton. 269 Kan. at Young distinguished Walton,
59. In stated: court discussing Walton, “In five the Arizona death justices statute did agreed create an unconstitutional in favor of the death The statute at presumption issue penalty.
in Walton of the sentence of death required if imposition circum- aggravating “ were stances established and there were ‘no circumstances mitigating sufficiently ” substantial’ to warrant leniency. [Citations cho- omitted.] Although language *199 or not the terms does include ‘outweigh,’ the Arizona ‘weigh’ sen Legislature by in of the is a that results the statute imposition
what weighing process prescribes to are not of sufficient if the circumstances death weight tip mitigating penalty balance toward leniency. the noted, Court its own consti- the Colorado “As Supreme interpreted previously States than the United to tutional greater protection comparable provisions grant contrast, Thus, this court Walton was not In constitutional controlling. provision. to citizens the our beyond has never extended protection guaran- greater federal added.) 269 at Kan. 59. tees. omitted.]” (Emphasis [Citation
This cases not reaffirmed that death are court controlling penalty said, at this court the cases. 269 Kan. 59. That
in hard 40 quoted from Walton: key passage
following “ of the of does not lessen as a State’s method burdens ‘So long allocating proof or in this case to element of offense the State’s burden every prove charged, circumstances, of a defendant’s constitutional
to the existence aggravating prove on him burden of circum- are violated not by placing proving mitigating rights ” Walton, to call for 269 at 60 substantial Kan. leniency.’ stances sufficiently (citing 650). U.S. at 497 stated, in Fourth Circuit Court of
As the
Appeals
summarizing
relevant
Court
Supreme
philosophy:
be
in
death
need not
structured
“The
involved
procedure
imposing
penalty
trial. See
a
need
avoid
a
unfair
favor defendant but
fundamentally
only
creating
Florida,
3418,
(1983).
939, 103 S.
The
v.
U.S.
Ct.
Walton echoes philosophy in Walton Arizona statute area. While the
this wording statute, is the same. of the Kansas identical
not operation Court’s bears United States analysis repeating: Supreme does not lessen a State’s method of burdens
“So long allocating proof this case of the element offense the State’s burden charged, prove every circumstances, a defendant’s constitutional existence aggravating prove are violated him the burden of circum-
rights placing proving mitigating Walton, substantial to call for stances 497 U.S. 650. leniency.” sufficiently issue, it is
With clear Kansas’ framing simple 21-4624(e)
statute muster. K.S.A. constitutional passes requires
State to one or more of the circumstances be- prove aggravating a reasonable doubt. There is no burden on the defendant
yond circumstances; consider it mitigating jury may
prove anything
considers circumstance of whether it has mitigating regardless 21-4624(f) K.S.A.
been or not. the court to re- “proven” requires a death
view sentence to ensure it is by jury imposed supported *200 fact the evidence. The that a death sentence results where ag- and are to be found does not
gravators mitigators equipoise to
lessen State’s burden the existence of cir- prove aggravating
cumstances. fails to how the Kansas scheme explain precludes evidence,
sentencer from much less considering any mitigating
how the Kansas scheme forces the to such evidence. disregard allows, the Kansas scheme under 21-4624(e), K.S.A. con-
Clearly of
sideration circumstances found to exist. any mitigating Scalia’s in Walton concluded pointed concurring opinion Justice discretion and individualized as set forth in guided sentencing
the cases cannot be reconciled. The treatment of the majority’s however,
Arizona that in an weighing equation, suggests attempt
to harmonize the two the Court has fashioned a objectives, safety effect, Ohio,
valve sorts. in Lockett v. of In while 438 U.S. holding
586, 973, 57 L. Ed. 2d 98 S. (1978), Ct. 2954 that the substance
of evidence cannot be restricted a determination mitigating beyond relevance,
of its the Court in cases short of an subsequent stops to the defendant’s of miti
“anything goes” approach presentation evidence to states fashion the procedure
gating by allowing
method which is evidence considered. This is evident mitigating
in Zant v. 862, U.S. 235, 462 77 L. Ed. 2d 103 S. Ct. Stephens, v. Franklin (1983),
2733 164, 487 U.S. 101 L. Ed. Lynaugh, 155, 108 (1988),
2d S. Ct. 2320 where the Court refused require v. and in 494 U.S. Blystone Pennsylvania, weighing equation, 255, 110
108
2d
S.
v. California,
(1990),
L. Ed.
Ct. 1078
Boyde
(1990),
Boyde and it refused delve into of weighing equation, type
particular instead on the more basic of the
the mechanics focusing equation, allowed to all the sentencer was consider of whether
requirements evidence.
relevant mitigating Amendment Court’s Eighth jurisprudence development nature of state’s that the
on this issue weighing suggests precise is of the issue. The weighing equation part pro-
equation decision, and as as it of the death
cedural long makeup allows which full consideration rele- within scheme
operates evidence, broad it is left discretion
vant mitigating states.
individual Walton, Court did more than approve Supreme simply It con the Arizona wording weighing equation. particular decisions what its earlier firmed suggested Eighth —that the substance death
Amendment would applied pen discretion and individualized con ensure decision guided
alty
sideration, but that aspects, weighing equation procedural will of See them, be left state would legislatures.
among 967, 980, 750, 114 U.S. 129 Ed. 2d L. California,
Tuilaepa *201 that the States are not constrained (1994)
S. Ct. 2630 (reiterating a scheme a of
to kind mandatory requiring jury sentencing “adopt found, it a certain to death if
to a defendant sentence example, facts, or found more fac or number of
kind statutory aggravating factors”); Buchanan v.
tors than statutory mitigating
Angelone,
(1998) (“Our
269, 276,
2d
U.S. on the sentenc has been restrictions
consistent concern jury’s able to the from determination not being jury give
ing preclude . . . we evidence. But have relevant
effect mitigating held that the state must struc further and
never affirmatively gone in manner which consider miti a the
ture in juries way particular v. 1512-13 evidence.”); 978 F.2d Campbell Blodgett,
gating 1992).
(9th Cir. thus
The renders dichotomy unimportant substance-procedure distinction,
the as raised between the Arizona by Kleypas, approved and the Kansas
weighing equation weighing equation. can
The balance of be characterized as arguments Kleypas’ gen- “tie,”
eral about the inherent unfairness a of complaints allowing balance,
or found to be in to result aggravators mitigators equal
in a of couches this sentence death. “tie State” the goes of a a terms of death and burden him
argument presumption that his should be life visceral of this spared. prove appeal the Amendment.
argument simply supported Eighth stems
Much of from of the likely appeal thinking sentencing terms the State’s
decision in burden of a during guilt phase clear, however,
trial. that the It is guilt phase sentencing phase Ramos, are distinct and different rules. In subject California 992, 77 1171, 103 2d Ct. (1983), U.S. L. Ed. S. the United
States an Court between two rejected analogy Supreme phases,
noting “the fundamental difference between nature of the determi- guili/innocence nation . . . and the nature of the life/death at choice . . . penalty phase. conviction, a In must itself that the elements returning jury satisfy necessary of the crime have been reasonable doubt. particular proved beyond fixing however, there is no similar ‘central issue’ from which the attention
penalty, jury’s diverted. Once finds the defendant falls within the may jury legisla- for the defined death tively eligible did category persons penalty, respon- circumstance, dent’s of the truth determining alleged special then is factors free consider to determine whether death is the myriad 463 U.S. 1007-08. appropriate punishment.”
If the Kansas death scheme meets the Amend- penalty Eighth
ment discretion and individualized sen- guided requirements details of the should not weighing
tencing, equation operate
defeat the balance of death law under federal Con-
stitution. That the Kansas not differ weighing equation may may
from that of Arizona is of little it is matter consequence; pro-
cedure left discretion States.