IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 80,920
STATE OF KANSAS,
Appellee,
v.
GARY W. KLEYPAS,
Appellant.
SYLLABUS BY THE COURT
1. Evidence of a defendant's mental disease or defect excluding criminal responsibility is not admissible at a trial unless the defendant serves upon the prosecuting attorney and files with the court a written notice of such defendant's intention to assert the defense that the defendant, as a result of mental disease or defect, lacked the mental state required as an element of the offense charged. K.S.A. 22-3219. However, insanity and voluntary intoxication are two separate defenses. No notice of an insanity defense is required where the evidence points only to a temporary mental state negating specific intent caused by the voluntary consumption of alcohol.
2. Factors to be considered in determining whether a confession is voluntary include: (1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused on request to communicate with the outside world; (4) the accused's age, intellect, and background; and (5) the fairness of the officers in conducting the investigation.
3. Voluntariness of a confession is determined from the totality of the circumstances and where a trial court conducts a full prehearing on the admissibility of extrajudicial statements by the accused, determines the statements were freely and voluntarily given, and admits the statements into evidence at trial, appellate courts do not attempt to reweigh the evidence and accept that determination if supported by substantial competent evidence.
4. When a suspect makes a statement which may be ambiguous as to whether the suspect is asserting a right to remain silent, the interrogator may, but is not required to, ask questions to clarify and in any event may continue the questioning.
5. When the facts material to a decision of the court on a motion to suppress evidence are not in dispute, the question of whether to suppress becomes a question of law. An appellate court's scope of review on questions of law is unlimited.
6. It is constitutionally required that a search warrant shall particularly describe the place to be searched and items to be seized. General or blanket warrants which give the executing officers a roving commission to search where they choose are forbidden. The purpose of the constitutional requirement that search warrants particularly describe the place to be searched and the person or property to be seized is to prevent general searches and the seizure of items at the discretion of the officer executing the warrant.
7. Where the affidavit supporting a search warrant contains a particularized description of the items to be seized; the affiant and the affidavit are both present at the scene of the execution of the search warrant, even if the affiant is not the person executing the search warrant; and the officers executing the search warrant are briefed as to the items listed in the affidavit, the description in the affidavit cures a deficiency in the description of the search warrant.
8. When law enforcement officers grossly exceed the scope of a search warrant in seizing property, the particularity requirement is undermined and a valid warrant is transformed into a general warrant, thereby requiring suppression of all evidence seized under the warrant. However, an unlawful seizure of items outside the scope of a warrant does not alone render the whole search invalid and require suppression of all evidence seized, including that lawfully taken pursuant to the warrant. Unless there was a flagrant disregard for the terms of the warrant, only the improperly seized evidence, rather than all the evidence, need be suppressed.
9. Where a defendant attacks the affidavit supporting an arrest warrant based on the omission of material information, he or she must show: (1) The omission was deliberate and (2) the omission was material. An omission is material if the original affidavit together with the previously omitted information would not support a finding of probable cause. Probable cause exists if, under the totality of circumstances as set forth in the affidavit, a fair probability exists that a crime has been committed or is being committed and that the defendant has committed it.
10. Unless a criminal defendant can show bad faith on the part of the State, the State's failure to preserve potentially useful evidence does not constitute a denial of due process of law. The question of whether the State acted in bad faith is a question of fact.
11. A criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence as long as (1) the evidence, when viewed in the light most favorable to the defendant's theory, would justify a jury verdict in accord with that theory and (2) the evidence at trial does not exclude a theory of guilt on the lesser offense. An instruction on a lesser included offense is not proper if from the evidence the jury could not reasonably convict the defendant of the lesser offense.
12. The terms "in the commission of," "attempt to commit," and "flight from," as used in the felony-murder statute, are temporal requirements delineating when a killing may occur and still be part of the underlying felony.
13. In order to require an instruction on felony murder based on the theory that the killing occurred during the "flight from" an inherently dangerous felony, there must be evidence that the killing occurred during flight from the scene of the felony.
14. No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of his or her objection, unless the instruction or failure to give the instruction is clearly erroneous. Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.
15. In a prosecution for an attempt to commit a felony, there is no requirement that a jury be instructed as to a specific overt act the defendant is alleged to have committed.
16. When reviewing challenges to jury instructions, the instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, the instructions do not constitute reversible error although they may be in some small way erroneous.
17. The interpretation of a statute is a question of law, and an appellate court's review is unlimited. The fundamental rule of statutory construction guiding an appellate court's determination is that the intent of the legislature governs when that intent can be ascertained from the statute. When a statute is plain and unambiguous, the appellate court must give it the effect intended by the legislature rather than determine what the law should or should not be.
18. The phrase "or any attempt thereof" modifies all the offenses contained in K.S.A. 21-3439(a)(4) and makes the intentional and premeditated killing of the victim during the commission of or attempt to commit, or subsequent to the commission of or the attempt to commit, the offenses enumerated.
19. Reversible error normally cannot be predicated upon a complaint of misconduct by the prosecutor during closing argument where no contemporaneous objection is lodged. However, if the prosecutor's statements rise to the level of violating a defendant's right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection.
20. An appellate court's analysis of the effect of a prosecutor's allegedly improper remarks in closing argument is a two-step process: First, the appellate court must determine whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. Second, the appellate court must determine whether the remarks constituted plain error; that is, whether they were so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial. In order to find that the remarks were not so gross or flagrant, the appellate court must be able to find that when viewed in light of the record as a whole, the error had little, if any, likelihood of changing the result of the trial.
21. Factors relevant in determining whether a new trial should be granted for prosecutorial misconduct include: (1) whether the misconduct is so gross and flagrant as to deny the accused a fair trial; (2) whether the remarks show ill will on the part of the prosecutor, and (3) whether the evidence against the accused is of such a direct and overwhelming nature that it can be said that the prejudicial remarks of the prosecutor were likely to have little weight in the minds of the jurors.
22. A prosecutor has a duty to refrain from making improper, misleading, inflammatory, or irrelevant statements to the jury. This duty is heightened in capital cases.
23. Opening statements by counsel in criminal prosecutions are not evidence. They are given for the purposes of assisting the jury in understanding what each side expects its evidence at trial will establish and to advise the jury what questions will be presented for its decision. Prosecuting and defense attorneys are permitted reasonable latitude in stating to the jury the facts they propose to prove.
24. In closing argument, the prosecutor may draw reasonable inferences from the evidence but may not comment upon facts outside the evidence.
25. A juror's mental process in reaching the verdict or factors that influence the mental process cannot be inquired into for purposes of impeaching a verdict. Evidence may be received, however, as to conditions and occurrences either within or outside the jury room having a material bearing on the validity of the verdict.
26. The granting of a new trial or the recalling of a juror to inquire into alleged misconduct is a decision within the sound discretion of the trial court. Discretion is abused only where no reasonable person would agree with the actions of the trial court. Where a reasonable person would agree, an appellate court will not disturb the trial court's decision.
27. Where claims of juror misconduct directly implicate the jury's mental processes and cannot be readily verified, a trial court does not abuse its discretion by refusing to recall the jury. Where juror affidavits set forth allegations of misconduct, the truth of which can be verified, the trial court may allow inquiry and order a new trial if in its discretion juror misconduct requires a new trial.
28. The Fourteenth Amendment's guaranty of due process does not require that a prospective juror be totally ignorant of the facts and issues involved in the case. Mere existence on his or her part of a preconceived notion as to the guilt or innocence of the accused is, without more, insufficient to rebut the presumption of impartiality where the juror can lay aside such impression or opinion and render a verdict based on the evidence presented in court.
29. The general rule is that a criminal statute must be strictly construed in favor of the accused and any reasonable doubt about its meaning is decided in favor of anyone subjected to the statute. However, this rule is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.
30. Under K.S.A. 21-4624, the State is only required to provide notice that it intends to seek the death penalty upon conviction for capital murder. The State may at that time provide notice of the aggravating circumstances on which it will rely, but the State is not required to do so as long as it provides such notice within a reasonable time prior to trial. K.S.A. 21-4624 does not require the State to list the evidence it will present with regard to the aggravating circumstances as long as the State has made this evidence known to the defense prior to the sentencing proceeding.
31. Kansas law does not require a trial court to make a pretrial determination of whether there is sufficient evidence of aggravating circumstances to justify a separate penalty phase trial.
32. A criminal defendant is incompetent to stand trial when, because of a mental illness or defect, the defendant is unable to understand the nature and purpose of the proceedings against him or her or where he or she is unable to make or assist in making a defense. On appeal, a reviewing court's inquiry regarding the decision of a district court that a defendant is competent to stand trial is whether the trial court abused its discretion.
33. A party who raises the issue of a defendant's competency to stand trial has the burden of going forward with the evidence which will be measured by the preponderance of the evidence standard.
34. Amnesia alone does not provide a basis for declaring a defendant incompetent to stand trial. Amnesia is a factor to be considered in determining whether a defendant is able to meet the test of competency to stand trial.
35. Challenges for cause are matters left to the sound discretion of the trial court which is in a better position to view the demeanor of prospective jurors during voir dire. A trial court's ruling on a challenge for cause will not be disturbed on appeal unless it is clearly erroneous or amounts to an abuse of discretion.
36. A sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding venirepersons for cause because they voiced general objections to the death penalty or expressed conscientious or religious scruples against the death penalty. However, a prospective juror may be excluded for cause because of his or her views on capital punishment where the juror's views would prevent or substantially impair the juror's ability to follow the instructions of the trial court.
37. K.S.A. 21-4624(b) does not provide for a separate jury in the penalty phase of a capital-murder case. Instead, the same jury that heard the guilt phase also hears the penalty phase. However, a defendant may voir dire the jury prior to the penalty phase in order to remove potentially prejudiced jurors for cause.
38. Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding such alleged misconduct. In order to warrant or require the granting of a new trial, it must affirmatively appear that the conduct was of such nature that it prejudiced the substantial rights of the complaining party. A mere possibility of prejudice from a remark of the trial court is not sufficient to overturn a verdict or judgment. If a proper and reasonable construction will render the remark unobjectionable, an appellate court generally adopts that construction and concludes the remark is not prejudicial.
39. In Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), the United States Supreme Court set a framework designed to prevent the discriminatory exclusion of prospective jurors on the basis of race. Under the Batson framework, the defendant must first make a prima facie case showing that the prosecutor has exercised peremptory challenges on the basis of race. Once such a showing has been made, the burden shifts to the prosecutor to articulate a race-neutral reason for striking the prospective juror. The trial court must then determine whether the defendant has carried the burden of proving purposeful discrimination.
40. Parties may exercise their peremptory challenges to remove from the venire any group of persons. Appellate court review is a rational basis review under the Equal Protection Clause of the United States Constitution.
41. It is not improper for the State to use a peremptory strike to remove a prospective juror on the basis of his or her aversion to imposing the death penalty.
42. Even if trial errors are harmless when considered individually, cumulative trial errors may be so great as to require reversal of a defendant's conviction. The test is whether under the totality of circumstances cumulative error substantially prejudiced the defendant and denied him or her a fair trial.
43. In a capital case, the fundamental respect for humanity underlying the Eighth Amendment to the United States Constitution requires that the sentencer be able to consider the character and record of the individual defendant and the circumstances of the particular offenses as a constitutional, indispensable part of the process of imposing the death penalty.
44. In a capital case, the defendant must not only be allowed to present mitigating circumstances, but the sentencer must also be able to consider and give effect to the mitigating circumstances in imposing the death sentence.
45. K.S.A. 21-4624(e) is not unconstitutional on its face, but it impermissibly mandates the death penalty where the jury finds that the mitigating and aggravating circumstances are in equipoise. As such, it denies what the Eighth Amendment requires: that the jury is to give effect to the mitigating circumstances that it finds exist.
46. This court not only has the authority but also the duty to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute. To accomplish this purpose, the court may read the necessary judicial requirements into the statute.
47. The legislative intent in passing K.S.A. 21-4624 was to provide for a death sentencing scheme by which a sentence of death is imposed in a constitutional manner.
48. K.S.A. 21-4624(e) is construed to provide that if a jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. 21-4625 exist, and further, that such aggravating circumstance or circumstances outweigh the mitigating circumstances found to exist, the defendant shall be sentenced to death. So construed, the intent of the legislature is carried out and K.S.A. 21-4624(e) does not violate the Eighth Amendment's prohibition against cruel and unusual punishment.
49. Our holding requires that this case be remanded for resentencing to allow a jury to reconsider the imposition of the death penalty.
50. In a capital case, the standard of review on appeal as to the sufficiency of evidence regarding an aggravating circumstance is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the existence of the aggravating circumstance beyond a reasonable doubt.
51. In order for the avoid arrest aggravating factor found in K.S.A. 21-4625(5) to apply, the State must prove that a motive--not the dominant or only motive--for the murder was to avoid prosecution.
52. To pass constitutional scrutiny, an aggravating circumstance must channel the discretion of the sentencer with clear and objective standards which provide specific guidance and make possible a rational review of the process of sentencing a defendant to death. An aggravating circumstance must not apply to every defendant convicted of murder but only to a subclass of that larger group. If the sentencer could fairly conclude that an aggravating circumstance applies to every defendant convicted of murder, the circumstance is unconstitutionally vague or overbroad.
53. When the jury is the final sentencer, it is essential that the jurors be properly instructed regarding all facets of the sentencing process; it is insufficient to instruct the jury in the bare terms of an aggravating circumstance that is unconstitutionally vague on its face.
54. In order to find that a murder was committed in an especially heinous, atrocious, or cruel manner so as to satisfy the aggravating circumstance contained in K.S.A. 21-4625(6), the jury must find that the perpetrator inflicted mental anguish or physical abuse before the victim's death.
55. The Kansas definition of "heinous, atrocious or cruel" narrows the class of death eligible defendants consistent with the requirements of the Eighth and Fourteenth Amendments to the United States Constitution.
56. Neither the United States Constitution, the Kansas Constitution, nor Kansas law require a proportionality analysis of a defendant's death sentence.
57. Evidence presented at a capital sentencing proceeding must be relevant to the sentence and have probative value. Evidence secured in violation of the Constitution is not admissible. The State may only introduce evidence of aggravating circumstances which were disclosed to the defendant prior to sentencing, and the defendant must be given a fair opportunity to rebut hearsay statements.
58. A capital defendant may waive trial by jury which also waives sentencing by jury. However, where a defendant pleads guilty, thus waving trial and sentencing by a jury, he or she is still subject to imposition of the death penalty by the court.
59. Section 1 of the Kansas Constitution Bill of Rights and the cruel and unusual punishment clause found in § 9 of the Kansas Constitution Bill of Rights do not prohibit capital punishment per se.
60. In a capital case, written findings with regard to mitigating circumstances are not mandated by either Kansas law or the United States Constitution.
61. No customary international law or international treaty prohibits the State of Kansas from invoking the death penalty as a punishment for certain crimes.
62. K.S.A. 21-4624(b) does not establish a specific time within which the State's motion for a separate sentencing proceeding must be made; rather, the motion requirement is intended to secure the orderly and systematic dispatch of the public business. The State's delay in filing a motion for a separate sentencing proceeding does not invalidate the resulting proceeding, absent prejudice to the defendant.
63. The sentencing proceeding under the Kansas capital-murder scheme has but one purpose: to determine whether the defendant should be sentenced to death. Only two options are contemplated: Either the jury will unanimously agree beyond a reasonable doubt that one or more aggravating circumstances exist and further that such aggravating circumstance or circumstances outweigh the mitigating circumstance or circumstances found to exist, in which case it will sentence the defendant to death; or the jury will fail to so unanimously find, in which case the defendant will not be sentenced to death.
64. The Kansas death penalty scheme requires the jury to weigh the aggravating factors against the mitigating factors. The State should be permitted to introduce evidence regarding the underlying circumstances of the prior crime to satisfy the aggravating circumstance contained in K.S.A. 21-4625(1), notwithstanding the defendant's offer to stipulate to the existence of the aggravating circumstance. However, courts must be careful to exercise their discretion in admitting such evidence in order to protect the rights of the defendant.
65. While evidence that a defendant has been well behaved in prison, and in the future will be similarly well behaved, is a mitigating circumstance, evidence of prison conditions does not bear on the defendant's character, prior record, or the circumstances of the offense. Therefore, it is not mitigating and, thus, generally not admissible at the penalty phase. However, such evidence may be admissible to rebut prosecutorial assertions regarding prison conditions.
66. The sentencing jury may not refuse to consider, as a matter of law, relevant mitigating evidence. However, this does not mean that the jury may not find some circumstances not to be mitigating but, rather, only precludes the jury from determining that it may not legally consider certain mitigating circumstances and evidence. The jury is free to determine for itself what circumstances it chooses to be mitigating and whether the evidence of those circumstances is sufficient.
67. In the absence of a request, the trial court has no duty to inform the jury in a capital murder case of the term of imprisonment to which a defendant would be sentenced if death were not imposed. Where such an instruction is requested, the trial court must provide the jury with the alternative number of years that a defendant would be required to serve in prison if not sentenced to death. Additionally, where a defendant has been found guilty of charges in addition to capital murder, the trial court upon request must provide the jury with the terms of imprisonment for each additional charge and advise the jury that the determination of whether such other sentences shall be served consecutively or concurrently to each other and the sentence for the murder conviction is a matter committed to the sound discretion of the trial court.
68. The heinous, atrocious, or cruel manner aggravating circumstance in K.S.A. 21-4625 is not targeted toward the motive for the killing but, rather, focuses on the manner in which the killing was committed. The heinous, atrocious, or cruel manner aggravating circumstance is not inconsistent with the avoiding arrest aggravating factor.
69. The standard of review and the ultimate question that must be answered with regard to whether prosecutorial misconduct in the penalty phase of a capital trial was harmless is whether the court is able to find beyond a reasonable doubt that the prosecutorial misconduct, viewed in the light of the record as a whole, had little, if any, likelihood of changing the jury's ultimate conclusion regarding the weight of the aggravating and mitigating circumstances. In this determination, the overwhelming nature of the evidence is a factor to be considered, although its impact is limited. The question for the reviewing court is not what effect the constitutional error might generally be expected to have upon a reasonable jury but, rather, what effect it had upon the actual verdict in the case at hand.
70. In order for an appellate court to determine that the evidence is so overwhelming as to make any prosecutorial misconduct harmless, the court must assume that all of the mitigating circumstances claimed by the defendant exist, and it must be able to say that, even so, the weight of the mitigators could not have outweighed that of the aggravating circumstances.
71. Even if instances of prosecutorial misconduct which occur during the penalty phase of a capital trial are harmless error in and of themselves, their cumulative effect must be analyzed. The issue is whether the sum total effect of the misconduct, viewed in light of the record as a whole, had little, if any likelihood of changing the jury's ultimate conclusion regarding the weight of the aggravating and mitigating circumstances.
72. Counsel may not make assertions of fact in the form of questions to a witness absent a good faith basis for believing the asserted matters to be true.
73. While the State must be ready to establish the good faith basis for its questions, its responsibility to do so is triggered by an objection which asks it to do so, and where there is no such objection, the duty does not exist.
74. In the penalty phase of a capital proceeding, where a defendant presents evidence of a mitigating circumstance, the prosecution is permitted to cross-examine defense witnesses as to relevant facts and to introduce relevant evidence in order to rebut the existence of the mitigating circumstance.
75. When relevant evidence is admissible as to one party or for one purpose and is inadmissible as to other parties or for another purpose, the judge upon request shall restrict the evidence to its proper scope and instruct the jury accordingly. Although a trial judge is required to give such an instruction where applicable on request of one of the parties, the failure to do so when not requested is not error unless such failure is clearly erroneous.
76. A conviction based on perjured or false evidence is a violation of due process even in cases where the perjury or false evidence was not induced by the prosecution.
77. The Fifth Amendment to the United States Constitution, as well as § 10 of the Kansas Constitution Bill of Rights, protects the right of a defendant to exercise his or her privilege not to testify and forbids comment by the prosecution on the defendant's silence. A prosecutor commits error when the language used was manifestly intended or was of such a character that the jury would necessarily take it to be a comment on the failure of the accused to testify.
78. It is a violation of a defendant's Fifth Amendment rights for a prosecutor to comment on evidence of the defendant's courtroom behavior where the defendant has exercised his or her right not to testify.
79. Mitigating circumstances are those which in fairness may be considered as extenuating or reducing the degree of moral culpability, or blame, or which justify a sentence of less than death, even though they do not justify or excuse the offense. It is proper for a prosecutor to argue that certain circumstances not be considered as mitigating circumstances. However, it is improper for a prosecutor to argue that certain circumstances should not be considered as mitigating circumstances because they do not excuse or justify the crime.
80. A prosecutor should not express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.
81. It is improper for a prosecutor to state facts in closing argument that are not in evidence or are contrary to the evidence.
82. It is proper for the prosecutor to argue that the defendant is not deserving of the jury's mercy because of the defendant's actions, as long as the prosecutor does not improperly state the law by arguing to the jury that it is prohibited from granting mercy to the defendant because the defendant showed none to the victim.
83. A prosecutor is allowed to introduce relevant evidence to show the victim's mental anguish and, further, to make arguments and inferences from the evidence that the victim suffered such mental anguish, where relevant. However, prosecutorial comments referring to what the victim was thinking are improper because they ask the jury to speculate on facts not in evidence. It is improper for a prosecutor to create an "imaginary script" in order to create and arouse the prejudice and passion of the sentencing jury.
84. During closing argument, a prosecutor may refer to and use photographs of victims admitted at trial as long as th