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July 22, 2016, Appellate Court Digests
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Kansas Supreme Court – Criminal

Constitutional law; Criminal procedure; Death penalty; Jury; Statutes
State v. Cheever
Greenwood District District Court – Affirmed
No. 99,988 – July 22, 2016

GUILT PHASE: Cheever convicted of killing sheriff; death sentence imposed.  Regarding guilt phase of trial, Kansas Supreme Court reversed, finding Cheever did not waive Fifth Amendment privilege against self-incrimination by presenting voluntary intoxication defense to capital murder charges, thus State’s rebuttal expert witness (Welner) should not have been allowed to testify. U. S. Supreme Court disagreed, holding Welner’s expert opinion testimony was admissible.  State v. Cheever, 295 Kan. 229 (2012), vacated and remanded 134 S.Ct. 596 (2013). Scope of Welner’s rebuttal testimony is considered on remand, as well as impact of subsequent legislative amendment stating felony murder was not a lesser included offense of capital murder.

ISSUES: (1) Proper rebuttal testimony, (2) Felony-murder instruction

HELD: Admission of Welner’s testimony, which revolved around Welner’s statement that Cheever emulated an outlaw lifestyle, and alleged implication that Cheever had antisocial personality disorder, was within trial court’s broad discretion.

Reasoning in State v. Gleason, 299 Kan. 1127 (2014), rev'd and remanded sub nom. Kansas v. Carr, 136 S.Ct. 633 (2016), and State v. Carr, 300 Kan. 1 (2014), rev'd and remanded 136 S.Ct. 633 (2016), that retroactive application of the statutory amendment did not violate due process or ex post facto clauses, applies to this case. Cheever not entitled to felony-murder lesser included offense instruction.

GUILT PHASE: Regarding penalty phase of trial, court addresses undecided issues in Cheever’s earlier decision. First, that the instructions failed to inform jury that mitigating circumstances need not be proven beyond a reasonable doubt. After U.S. Supreme Court Carr decision, Cheever filed motion for determination that instructional error required reversal of death sentence on state law grounds. Second, the definition of capital murder under K.S.A. 21-3439(a)(5) violated U.S. and Kansas constitutions because it did not limit offense to situations in which victim is killed while performing duties as law enforcement officer. Third, trial court erred in denying challenge for cause of one venire member during voir dire, and in dismissing another venire member because her religious beliefs partially supported not imposing the death penalty.  Fourth, trial court’s orientation remarks to prospective jurors about court reporter making record for an appeal were unconstitutional, citing Caldwell v. Mississippi, 472 U.S. (1985).  Fifth, trial court failed to have jury find beyond reasonable doubt that Cheever was over the age of 18 when he killed the victim.  Sixth, constitutional challenge to the relaxed evidentiary standard of K.S.A. 21-4624(c). Seventh, prosecutorial error in arguing jury could not consider mitigating circumstance as a matter of law needs re-examination. Eighth, cumulative error deprived him a fair penalty-phase proceeding.

ISSUES: (1) mitigating circumstances instruction, (2) constitutionality of K.S.A. 21-3439(a)(5), (3) challenges for cause, (4) orientation remarks, (5) age at time of crime, (6) constitutionality of K.S.A. 21-4624(c), (7) prosecutorial misconduct, (8) cumulative error

HELD: Cheever waived state law argument by not presenting it in original appellate brief, and a motion cannot be used to raise a new issue, but under unique circumstances of death penalty case the issue is considered for first time on appeal. Relief under Eighth Amendment on mitigating circumstances instruction is foreclosed by Carr. Greater protection afforded in K.S.A. 21-4624(e) to a death-eligible defendant is matter of state law. Burden-of-proof instruction argued for on appeal was legally and factually appropriate. District court erred under state law in not instructing jury that mitigating circumstances need not be proven beyond a reasonable doubt. Under facts of case, however, Cheever failed to show clear and reversible error.

Cheever lacks standing to challenge constitutionality of K.S.A. 21-3439(a)(5) on ground asserted because it was undisputed the victim was engaged in performance of duties as law enforcement officer when killed.

Ample support in record for trial court’s denial of Cheever’s challenge for cause of first venire member. No error in granting State’s challenge for cause of second venire member.

Trial judges should not mention appellate review to juries, but the brief and factual mention to panels in this case, prior to voir dire and selection of jurors, was not reversible error.

No evidence in record that could rationally lead jury to find Cheever was under age 18 at time of the offense. Any error in failing to have jury find Cheever’s age was harmless.

Cheever’s Sixth and Eighth Amendment challenges to K.S.A. 21-4624(c) are defeated by State v. Kleypas, 272 Kan. 894 (2001), and State v. Scott, 286 Kan. 54 (2008), which are not reconsidered. Cheever lacked standing to challenge statute under Confrontation Clause.

Under standard of review of prosecutorial misconduct during penalty phase, as explained in Kleypas, prosecutor’s improper remark in this cause was harmless error.

Guided by Kleypas, when considering claim that cumulative error infected the penalty-phase proceeding, test is whether the total cumulative effect of errors, viewed in light of record as a whole, had little, if any, likelihood to change jury’s ultimate conclusion regarding weight of aggravating and mitigating circumstances. Less precise standard articulated in State v. Robinson, 303 Kan. 11 (2015), is disapproved. Individual penalty-phase errors in this case are  identified, but total effect of these errors had little, if any, likelihood of changing jury’s ultimate conclusion that death was appropriate sentence.

DISSENT (Johnson, J.): Disagrees with majority’s decision to uphold death penalty in this case. Reasserts belief that death penalty violates prohibition against cruel or unusual punishment in Kansas Constitution Bill of Rights. Agrees that district court failed to comply with state-law rule on instructing death-penalty juries about mitigating circumstances. He maintains this instruction error warranted a new sentencing proceeding, and that majority erred in reviewing the record to reweigh aggravating factors against mitigating circumstances. Majority also erred in applying the clearly erroneous provision of K.S.A. 22-3414(3) in this death penalty case that is governed by K.S.A. 2015 Supp. 21-6619(b), which authorizes Kansas Supreme Court to notice unassigned errors in the record if it would serve ends of justice.

STATUTES: K.S.A. 2015 Supp. 21-6619, -6619(b), -6619(c), -6619(d); K.S.A. 2013 Supp. 21-5402(d); K.S.A. 2012 Supp. 21-5402; K.S.A. 21-3439(a)(5), -4622, -4624, -4624(b), -4624(c), -4624(e), -4627(a), 22-3410(2(i), -3414(3), 43-156

Kansas Supreme Court – Criminal

Appeals; Criminal procedure
State v. Northern
Wyandotte District District Court – Affirmed
No. 112,955 – July 22, 2016

FACTS: Northern pled guilty to first-degree murder. Hard 25-year sentence imposed in October 2011, with restitution left open. Restitution order entered the next month. Three and a half years later, Northern filed motion for leave to file appeal out of time. District court denied the motion, noting Northern candidly admitted he had been notified of right to appeal, but could not recall specific conversation or wording of asking attorney to file an appeal. District court also found no exception under State v. Ortiz, 230 Kan. 733 (1982), applied. Northern appealed, arguing his sentence never became final for purposes of appeal because restitution was never pronounced from bench in open court. He also claimed the first and third Ortiz exceptions were satisfied.

ISSUE: Out of time appeal

HELD: District court’s denial of motion for leave to file appeal out of time is affirmed. Facts of case closely resemble State v. Frierson, 298 Kan. 1005 (2014), and State v. Moncla, 301 Kan. 549 (2015).  Strict requirements from State v. Hall, 298 Kan. 978 (2014), are not applied retroactively to pre-Frierson sentences, and no need to alter holdings in Frierson and Moncla.  No remand to district court for development of record to support Northern’s claim regarding Ortiz exceptions.

STATUTE: None

Kansas Supreme Court – Criminal

Double Jeopardy; Jurisdiction; Statutory interpretation
State v. Webb
Wyandotte District District Court – Appeal Dismissed
No. 114,065 – July 22, 2016

FACTS: The State charged Webb with one count of first-degree murder and one count of criminal possession of a firearm by a convicted felon. Webb was convicted by a jury on the firearm charge. But the jury could not reach a decision on the murder charge, and the district court declared a mistrial. Webb did not object to this finding. Before the State could retry him, Webb filed a motion for discharge in which he claimed that retrial would violate his rights under the Double Jeopardy Clause. The district court denied the motion, and Webb appealed.

ISSUE: Whether the denial of a motion to dismiss based on double jeopardy principles is a final, appealable judgment

HELD: The right to appeal is purely statutory. Although there is a U. S. Supreme Court case which holds that pretrial motions to dismiss on double jeopardy grounds are immediately appealable, it is based on a federal jurisdictional statute. The applicable Kansas statute distinguishes between a "final decision" and a "final judgment" and requires a different result. It is more important to recognize the plain language of Kansas statutes than to be consistent with federal case law. Since Webb has been neither convicted nor sentenced, the court does not have jurisdiction to consider his appeal and it must be dismissed.

STATUTES: 28 U.S.C. § 1291; K.S.A. 2015 Supp. 22-3601(a), -3602(a)

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