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February 9, 2018 Digests

Posted By Administration, Monday, February 12, 2018

Kansas Supreme Court

Criminal

constitutional law—criminal law—death penalty—judges—juries—jury instructions—statutes
state v. kahler
osage district court—affirmed
106981—february 9, 2018

FACTS: Kahler convicted in part of capital murder. No dispute that he fatally shot four victims, but defense argued severe depression rendered Kahler incapable of forming the intent and premeditation required for capital murder. On appeal Kahler claimed:

  1. prosecutor improperly objected to defense counsel's attempt during closing argument to repeat words on a Life Alert recording made during the killings;
  2. six instances of judicial misconduct during trial;
  3. district court erred in not instructing jury on expert witness testimony;
  4. adoption of mens rea approach in K.S.A. 22-3220 unconstitutionally deprived Kahler of asserting an insanity defense;
  5. district court filed to sua sponte instruct jury on felony murder as a lesser included offense;
  6. district court denied Kahler a fair trial by prohibiting defense counsel from questioning prospective jurors about their views on the death penalty;
  7. cumulative trial errors denied Kahler a fair trial;
  8. death sentence imposed upon a severely mentally ill person violates the Eighth Amendment;
  9. the two statutory aggravating factors advanced by the State to justify the death penalty were unconstitutional; and
  10. insufficient evidence supported jury's finding that the crime was committed in an especially heinous atrocious, or cruel manner.

ISSUES:

  1. Prosecutorial error;
  2. judicial misconduct;
  3. expert witness instruction;
  4. constitutionality of Kansas death penalty statute;
  5. lesser offense felony murder instruction;
  6. limitations on defense voir dire;
  7. cumulative error during guilt phase;
  8. Eighth Amendment categorical challenge to death penalty;
  9. constitutionality of aggravating circumstances;
  10. sufficiency of the evidence of an aggravating factor

HELD: Prosecutor's objection was within the permissible latitude to object to the defense summation going beyond the admitted evidence. The alleged ill will of the prosecutor in making the objection has no bearing on whether the objection itself was prosecutorial error.

Specific allegations of judicial misconduct examined, finding only one harmless error:

  1. While district court's preliminary admonition against outbursts of opinion was reasonable, better practice to also clarify that panel members would have opportunity to raise personal concerns outside the presence of other venire members.
  2. Merely requesting trial counsel to move faster if possible is not judicial misconduct, but better practice to make such administrative requests out of panel's presence.
  3. District court's editorial comment about the instruction that counsels' statements are not evidence, given right after defense opening statement, was harmless error.
  4. No misconduct in district court judge questioning a witness for clarification, but better practice to follow the procedure in State v. Boyd, 222 Kan.155 (1977).
  5. District court's premature sustaining of prosecutor's objection to defense counsel repeating words on Life Alert recording was not judicial misconduct, but it was unassigned trial error which alone did not require reversal.
  6. District court's remarks before sending jurors to deliberate did not discourage jurors from asking any questions.

District court erred in refusing to give the requested instruction on expert witness credibility, but error was harmless.

Kahler's arguments are the same as those considered and rejected in State v. Bethel, 275 Kan. 456 (2003), which held the mental disease or defect defense adopted in K.S.A. 22-3220 did not unconstitutionally abrogate Kansas's former insanity defense. Further review of Bethel is not warranted.

Felony murder is not a lesser included offense of capital murder.

Under facts in this case, district court did not prohibit defense counsel from questioning prospective jurors during voir dire about their views on the death penalty.

Cumulative effect of trial errors did not deny Kahler a fair trial, and the identified guilt-phase errors are not the type to impact the same jury's sentencing determination.

Pursuant to State v. Kleypas, 305 Kan. 224 (2016), the Kansas death penalty is not categorically disproportionate punishment for offenders who are severely mentally ill at the time they commit their crimes.

Kansas cases have rejected Kahler's challenge to the constitutionality of the two statutory aggravating factors found in his case.

State presented sufficient evidence to establish that the killings were committed in a heinous, atrocious, or cruel manner. Evidence supports the jury's weighing determination of mitigating and aggravating circumstances, and the jury's sentencing verdict.

CONCURRENCE and DISSENT (Biles, J., joined by Stegall, J.): Concurs with majority's decision to confirm Kahler's convictions and sentences, but disagrees with majority's finding of misconduct and error by the district court judge's aside that “I normally don't do this” before giving pattern jury instruction about remarks of counsel. If error, agrees it was harmless. At worst, this should be a simple “teaching moment” to caution judges about banter with juries.

DISSENT (Johnson, J): Addresses each claim individually, generally agreeing with majority's analysis and decisions on all issues but for the following:

  • Disagrees with majority's suggestion that prosecutor's bad faith or ill will can never play any role in error analysis.
  • Disagrees with majority's reliance on Bethel to reject Kahler's constitutional challenge to K.S.A. 22-3220. Death penalty was not involved in Bethel, and Kansas Supreme Court is obligated to independently analyze whether the procedure of replacing insanity defense with mens rea approach undermines the reliability of jury's determination to impose death penalty.
  • Agrees the cumulative effect of trial errors in this case do not require reversal of the guilty verdict, but strongly disagrees that guilt-phase errors can be ignored when considering the same jury's penalty-phase decision. Would hold the errors in this case undermined the reliability of jury's death sentence, which should be vacated and remanded for a new sentencing trial.
  • Expands his Kleypas dissent to now address Kahler's Eighth Amendment claim. Categorical protection of mentally retarded defendants in Atkins v. Virginia, 536 U.S. 304 (2002), is discussed and critically compared to mentally ill defendants under Kleypas.
  • As unassigned error impacting fairness and justice, reasserts his conclusion that the death penalty violates the Kansas Constitution.

STATUTES: K.S.A. 2016 Supp. 21-3439(a)(6), -5402(d), -6617, -6619, -6619(b), 22-3414(3); K.S.A. 2012 Supp. 21-5402; K.S.A. 21-3439(a), 22-3220, -3420(3)

Kansas Court of Appeals

Civil

APPELLATE PROCEDURE—JUDGMENTS
CITY OF TOPEKA V. RAMOS
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 116,825 – FEBRUARY 9, 2018

FACTS: Ramos was ticketed by city police for traffic infractions. Without appearing in court, Ramos pled no contest and paid his ticket and court costs. Ramos apparently had a change of heart, and three months later he filed a motion to withdraw his plea. The motion was denied by a municipal judge, and Ramos appealed to district court. Once the case was in district court the city filed a motion to dismiss, claiming that the district court lacked jurisdiction because the appeal was filed more than 14 days after Ramos paid his fine. The district court granted the city's motion and Ramos appealed.

ISSUES: (1) Timeliness of the notice of appeal; (2) jurisdiction to consider motion to withdraw plea

HELD: Because Ramos never appeared in court, his sentence was effective on the date in September 2015 when he paid his fine online. Ramos did not file his notice of appeal to the district court until January 2016, well outside of the 14 days allowed by statute. Ramos' appeal was untimely and the district court did not err by dismissing the case on timeliness grounds. The ability to appeal the denial of a motion to withdraw plea differs depending on whether the plea was accepted by a municipal court or by a district magistrate judge or district judge. The plain language of K.S.A. 2016 Supp. 22-3609(a) does not allow for an appeal from the denial of a motion to withdraw plea that was entered in municipal court.

STATUTES: K.S.A. 2016 Supp. 22-3602, -3602(a), -3609, -3609(a), -3609(b), -3609a(a); K.S.A. 12-4102, -4103, -4305(a), -4305(c), -4508

Tags:  constitutional law  death penalty  judges  jury  Osage  Shawnee 

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