Scott v. State

1

NOT DESIGNATED FOR PUBLICATION

No. 118,306


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JEFFREY L. SCOTT,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; SETH L. RUNDLE, judge. Opinion filed October 5, 2018.
Affirmed.

Wendie C. Miller, of Kenneth B. Miller, Atty at Law, LLC, of Wichita, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before BUSER, P.J., ATCHESON, J., and WALKER, S.J.

PER CURIAM: The Sedgwick County District Court denied Jeffrey L. Scott's
habeas corpus challenge to his 1999 conviction for first-degree murder as untimely and
impermissibly successive to earlier collateral attacks on the conviction he pursued in the
state and federal courts. Scott has appealed. We affirm because Scott rests his current
motion solely on an ostensible error in what had been the standard jury instruction on the
State's burden of proof in a criminal case. The Kansas Supreme Court has since ruled that
the instruction is not erroneous. So Scott has not alleged any error in the trial process
resulting in his conviction—let alone an error of such fundamental dimension to trigger
habeas corpus relief.
2


A jury convicted Scott of murder, and the district court sentenced him to life in
prison. The facts of the crime are irrelevant to the legal issue before us. The Kansas
Supreme Court affirmed the conviction and sentence on direct appeal. State v. Scott, 271
Kan. 103, 21 P.3d 516 (2001). In 2002, Scott filed his first habeas corpus motion as
permitted in K.S.A. 60-1507. The district court denied him relief, and this court affirmed
that ruling. Scott v. State, No. 90,135, 2004 WL 944026 (Kan. App. 2004) (unpublished
opinion). While his first 60-1507 motion was pending, Scott filed for and was ultimately
denied federal habeas corpus relief. Scott v. McKune, No. Civ. A. 04-3360-KHV, 2005
WL 2589197 (D. Kan. 2005) (unpublished opinion). In each of those proceedings, Scott
asserted multiple grounds for relief.

In 2017, Scott filed this 60-1507 motion. The district court summarily denied the
motion as untimely and impermissibly successive. See K.S.A. 2017 Supp. 60-1507(c),
(f). Scott has appealed.

In this challenge to his conviction, Scott has predicated error on the district court's
use of what had been the standard instruction to inform the jury on the State's burden of
proof. The instruction, PIK Crim. 3d 52.02 (1995 Supp.), states, in part:

"The test you must use in determining whether the defendant is guilty or not
guilty is this: If you have a reasonable doubt as to the truth of any of the claims required
to be proved by the State, you must find the defendant not guilty. If you have no
reasonable doubt as to the truth of any of the claims required to be proved by the State,
you should find the defendant guilty." (Emphasis added).

As Scott points out, the committee that develops pattern jury instructions later revised the
instruction by replacing the second "any" with "each" as a matter of linguistic clarity. See
PIK Crim. 4th 51.010 (2017 Supp.). Scott contends the instruction used at his trial is
confusing and effectively dilutes the State's burden of proof to something less than
reasonable doubt.
3


When a district court summarily denies a 60-1507 motion, we review the ruling
without deference. We can review the motion and the record in the underlying criminal
case just as well as the district court. Here, the district court heard no additional evidence
and made no credibility determinations. In short, the appellate court exercises de novo
review. Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007).

Given that broad appellate authority, we choose not to thrash around with the
procedural barriers the district court relied on to deny Scott's motion. Although the
motion almost certainly was sufficiently irregular procedurally to warrant denial for
being untimely and successive, we skip to the merits. The merits barrier to Scott's motion
is impregnable.

After the PIK Committee changed the burden of proof instruction, many district
courts persisted in using the old instruction—the one that had been state-of-the-art when
Scott was convicted. So in recent years, many defendants have asserted the use of PIK
Crim. 3d 52.02 with its "any-any" language to be error either on direct appeal or in 60-
1507 motions. In State v. Herbel, 296 Kan. 1101, 1124, 299 P.3d 292 (2013), the Kansas
Supreme Court held the any-any instruction outlining reasonable doubt and the State's
burden of proof to be free of error and "legally appropriate," though no longer preferred.
See State v. Solis, 305 Kan. 55, 69-70, 378 P.3d 532 (2016) (reiterating and affirming
Herbel rule). In short, the jury instruction on which Scott bases his present 60-1507
motion simply is not erroneous. 305 Kan. at 70 ("[A]lthough the challenged instruction is
not the best way to define reasonable doubt, it is not erroneous.").

Having raised something that is not and was not error in his jury trial, Scott cannot
be entitled to relief.

Affirmed.