Criminal Procedure and Law: The Annual Review

Beth Cateforis

May 29-30, 2014 University of Kansas School of Law

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RECENT DEVELOPMENTS IN THE LAW 2013-14 Criminal Procedure and Law: The Annual Review

May 30, 2014 Beth Cateforis

FEDERAL CONSTITUTIONAL ISSUES

FOURTEENTH AMENDMENT

[N]or shall any State deprive any person of life, liberty, or property, without due process of law.

FOURTH AMENDMENT

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

CARS Navarette v. California, ___ U.S. ___, WL 1577513 (April 22, 2014). A California Highway Patrol officer stopped the pickup truck occupied by petitioners because it matched the description of a vehicle that a 911 caller had recently reported as having run her off the road. As he and a second officer approached the truck, they smelled marijuana. They searched the truck's bed, found 30 pounds of marijuana, and arrested petitioners. Petitioners moved to suppress the evidence, arguing that the traffic stop violated the Fourth Amendment. Their motion was denied, and they pleaded guilty to transporting marijuana. The California Court of Appeal affirmed, concluding that the officer had reasonable suspicion to conduct an investigative stop. Held : The traffic stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the truck's driver was intoxicated. (a) The Fourth Amendment permits brief investigative stops when an officer has “a particularized and objective basis for suspecting the particular person stopped of ... criminal activity.” United States v. Cortez, 449 U.S. 411, 417–418, 101 S.Ct. 690, 66

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L.Ed.2d 621. Reasonable suspicion takes into account “the totality of the circumstances,” id., at 417, 101 S.Ct. 690, and depends “upon both the content of information possessed by police and its degree of reliability,” Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301. An anonymous tip alone seldom demonstrates sufficient reliability, White, 496 U.S., at 329, 110 S.Ct. 2412, but may do so under appropriate circumstances, id., at 327, 110 S.Ct. 2412. (b) The 911 call in this case bore adequate indicia of reliability for the officer to credit the caller's account. By reporting that she had been run off the road by a specific vehicle, the caller necessarily claimed an eyewitness basis of knowledge. The apparently short time between the reported incident and the 911 call suggests that the caller had little time to fabricate the report. And a reasonable officer could conclude that a false tipster would think twice before using the 911 system, which has several technological and regulatory features that safeguard against making false reports with immunity. (c) Not only was the tip here reliable, but it also created reasonable suspicion of drunk driving. Running another car off the road suggests the sort of impairment that characterizes drunk driving. While that conduct might be explained by another cause such as driver distraction, reasonable suspicion “need not rule out the possibility of innocent conduct.” United States v. Arvizu, 534 U.S. 266, 277, 122 S.Ct. 744, 151 L.Ed.2d 740. Finally, the officer's failure to observe additional suspicious conduct during the short period that he followed the truck did not dispel the reasonable suspicion of drunk driving, and the officer was not required to surveil the truck for a longer period.

SEARCH INCIDENT TO ARREST - CELL PHONES Riley v. California, Supreme Court Case No.: 13-132 Oral Argument Held: April 29, 2014. Petition for writ of certiorari to the Court of Appeal of California, Fourth Appellate District, Division One, granted limited to the following question: Whether evidence admitted at petitioner's trial was obtained in a search of petitioner's cell phone that violated petitioner's Fourth Amendment rights. Phone at issue: Smart phone. United States v. Wurie, Supreme Court Case No.: 13-212 Oral Argument Held: April 29, 2014. Phone at issue: Flip phone.

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CONSENT Fernandez v. California, U.S. , 134 S.Ct. 1126 (2014). Police officers observed a suspect in a violent robbery run into an apartment building, and heard screams coming from one of the apartments. They knocked on the apartment door, which was answered by Roxanne Rojas, who appeared to be battered and bleeding. When the officers asked her to step out of the apartment so that they could conduct a protective sweep, petitioner came to the door and objected. Suspecting that he had assaulted Rojas, the officers removed petitioner from the apartment and placed him under arrest. He was then identified as the perpetrator in the earlier robbery and taken to the police station. An officer later returned to the apartment and, after obtaining Rojas' oral and written consent, searched the premises, where he found several items linking petitioner to the robbery. The trial court denied petitioner's motion to suppress that evidence, and he was convicted. The California Court of Appeal affirmed. It held that because petitioner was not present when Rojas consented to the search, the exception to permissible warrantless consent searches of jointly occupied premises that arises when one of the occupants present objects to the search, Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208, did not apply, and therefore, petitioner's suppression motion had been properly denied. Held : Randolph does not extend to this situation, where Rojas' consent was provided well after petitioner had been removed from their apartment. (a) Consent searches are permissible warrantless searches, Schneckloth v. Bustamonte, 412 U.S. 218, 228, 231–232, 93 S.Ct. 2041, 36 L.Ed.2d 854, and are clearly reasonable when the consent comes from the sole occupant of the premises. When multiple occupants are involved, the rule extends to the search of the premises or effects of an absent, nonconsenting occupant so long as “the consent of one who possesses common authority over [the] premises or effects” is obtained. United States v. Matlock, 415 U.S. 164, 170, 94 S.Ct. 988, 39 L.Ed.2d 242. However, when “a physically present inhabitan[t]” refuses to consent, that refusal “is dispositive as to him, regardless of the consent of a fellow occupant.” Randolph, 547 U.S., at 122–123, 126 S.Ct. 1515. A controlling factor in Randolph was the objecting occupant's physical presence. See, e.g., id., at 106, 108, 109, 114, 126 S.Ct. 1515. DNA Maryland v. King, ___U.S. ___ , 133 S.Ct. 1958 (2013). After his 2009 arrest on first- and second-degree assault charges, respondent King was processed through a Wicomico County, Maryland, facility, where booking personnel used a cheek swab to take a DNA sample pursuant to the Maryland DNA Collection Act (Act). The swab was matched to an unsolved 2003 rape, and King was charged with that crime.

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He moved to suppress the DNA match, arguing that the Act violated the Fourth Amendment, but the Circuit Court Judge found the law constitutional. King was convicted of rape. The Maryland Court of Appeals set aside the conviction, finding unconstitutional the portions of the Act authorizing DNA collection from felony arrestees. Held : When officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

FIFTH AMENDMENT

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, . . . , nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law . . .

SELF-INCRIMINATION

Pre-arrest silence Salinas v. Texas, U.S. , 133 S.Ct. 2174 (2013). Petitioner, without being placed in custody or receiving Miranda warnings, voluntarily answered some of a police officer's questions about a murder, but fell silent when asked whether ballistics testing would match his shotgun to shell casings found at the scene of the crime. At petitioner's murder trial in Texas state court, and over his objection, the prosecution used his failure to answer the question as evidence of guilt. He was convicted, and both the State Court of Appeals and Court of Criminal Appeals affirmed, rejecting his claim that the prosecution's use of his silence in its case in chief violated the Fifth Amendment. Held : The judgment is affirmed. Justice ALITO, joined by THE CHIEF JUSTICE and Justice KENNEDY, concluded that petitioner's Fifth Amendment claim fails because he did not expressly invoke the privilege in response to the officer's question.

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Justice THOMAS, joined by Justice SCALIA, concluded that petitioner's claim would fail even if he invoked the privilege because the prosecutor's comments regarding his precustodial silence did not compel him to give self-incriminating testimony. Griffin v.

California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, in which this Court held that the Fifth Amendment prohibits a prosecutor or judge from commenting on a defendant's failure to testify, should not be extended to a defendant's silence during a precustodial interview because Griffin “lacks foundation in the Constitution's text, history, or logic.” See Mitchell v. United States, 526 U.S. 314, 341, 119 S.Ct. 1307, 143 L.Ed.2d 424 (THOMAS, J., dissenting).

Rebuttal testimony State v. Cheever, 295 Kan. 229 (2012), cert. granted Feb. 25, 2013. Defendant presented a voluntary intoxication defense. In rebuttal, the State was permitted to introduce testimony from the State’s psychiatric expert who had conducted a mental examination of defendant. Defendant argued that the use of this testimony violated his right against self-incrimination. The Court agreed with the defendant and reversed his capital murder convictions. The U.S. Supreme Court has accepted cert. on the following question:

When a criminal defendant affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant’s methamphetamine use, does the State violate the defendant’s Fifth Amendment privilege against self-incrimination by rebutting the defendant’s mental state defense with evidence from a court-ordered mental evaluation of the defendant?

Kansas v. Cheever, U.S. , 134 S.Ct. 596 (2013). Shortly after respondent Cheever was charged with capital murder, the Kansas Supreme Court found the State's death penalty scheme unconstitutional. State prosecutors then dismissed their charges to allow federal authorities to prosecute him. When Cheever filed notice that he intended to introduce expert evidence that methamphetamine intoxication negated his ability to form specific intent, the Federal District Court ordered Cheever to submit to a psychiatric evaluation. The federal case was eventually dismissed without prejudice. Meanwhile, this Court held the State's death penalty scheme constitutional, see Kansas v. Marsh, 548 U.S. 163, 126 S.Ct. 2516, 165 L.Ed.2d 429. The State then brought a second prosecution. At trial, Cheever raised a voluntary intoxication defense, offering

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expert testimony regarding his methamphetamine use. In rebuttal, the State sought to present testimony from the expert who had examined Cheever by the Federal District Court order. Defense counsel objected, arguing that since Cheever had not agreed to the examination, introduction of the testimony would violate the Fifth Amendment proscription against compelling an accused to testify against himself. The trial court allowed the testimony, and the jury found Cheever guilty and voted to impose a death sentence. The Kansas Supreme Court vacated the conviction and sentence, relying on Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359, in which this Court held that a court-ordered psychiatric examination violated a defendant's Fifth Amendment rights when the defendant neither initiated the examination nor put his mental capacity in dispute. The court distinguished the holding of Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336, that a State may introduce the results of such an examination for the limited purpose of rebutting a mental-status defense, on the basis that voluntary intoxication is not a mental disease or defect under Kansas law. Held : The rule of Buchanan, reaffirmed here, applies in this case to permit the prosecution to offer the rebuttal evidence at issue. (a) In Buchanan, the prosecution presented evidence from a court-ordered evaluation to rebut the defendant's affirmative defense of extreme emotional disturbance. This Court concluded that this rebuttal testimony did not offend the Fifth Amendment, holding that when a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit an offense, the prosecution may present psychiatric evidence in rebuttal. Buchanan 's reasoning was not limited to the circumstance that the evaluation was requested jointly by the defense and the government. Nor did the case turn on whether state law referred to extreme emotional disturbance as an affirmative defense. (b) The admission of rebuttal testimony under the rule of Buchanan harmonizes with the principle that when a defendant chooses to testify in a criminal case, the Fifth Amendment does not allow him to refuse to answer related questions on cross-examination. See Fitzpatrick v. United States, 178 U.S. 304, 315, 20 S.Ct. 944, 44 L.Ed. 1078. Here, the prosecution elicited testimony from its expert only after Cheever offered expert testimony about his inability to form the requisite mens rea. Excluding this testimony would have undermined Buchanan and the core truth-seeking function of trial.

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SIXTH AMENDMENT

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

APPRENDI - MANDATORY MINIMUMS Alleyne v. United States, U.S. , 133 S.Ct. 2151 (2013). Petitioner Alleyne was charged, as relevant here, with using or carrying a firearm in relation to a crime of violence, 18 U.S.C. § 924(c)(1)(A), which carries a 5–year mandatory minimum sentence, § 924(c)(1)(A)(i), that increases to a 7–year minimum “if the firearm is brandished,” § 924(c)(1)(A)(ii), and to a 10–year minimum “if the firearm is discharged,” § 924(c)(1)(A)(iii). In convicting Alleyne, the jury form indicated that he had “[u]sed or carried a firearm during and in relation to a crime of violence,” but not that the firearm was “[b]randished.” When the presentence report recommended a 7–year sentence on the § 924(c) count, Alleyne objected, arguing that the verdict form clearly indicated that the jury did not find brandishing beyond a reasonable doubt and that raising his mandatory minimum sentence based on a sentencing judge's finding of brandishing would violate his Sixth Amendment right to a jury trial. The District Court overruled his objection, relying on this Court's holding in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524, that judicial factfinding that increases the mandatory minimum sentence for a crime is permissible under the Sixth Amendment. The Fourth Circuit affirmed, agreeing that Alleyne's objection was foreclosed by Harris. Justice THOMAS delivered the opinion of the Court with respect to Parts I, III–B, III–C, and IV, concluding: 1. Because mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an “element” that must be submitted to the jury. Accordingly, Harris is overruled. Pp. 2159 – 2163. (a) Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, concluded that any “ ‘facts that increase the prescribed range of penalties to which a criminal defendant is exposed’ ” are elements of the crime, id., at 490, 120 S.Ct. 2348, and thus the

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Sixth Amendment provides defendants with the right to have a jury find those facts beyond a reasonable doubt, id., at 484, 120 S.Ct. 2348. Apprendi 's principle applies with ineequal force to facts increasing the mandatory minimum, for a fact triggering a mandatory minimum alters the prescribed range of sentences to which a criminal defendant is exposed. Id., at 490, 120 S.Ct. 2348. Because the legally prescribed range is the penalty affixed to the crime, it follows that a fact increasing either end of the range produces a new penalty and constitutes an ingredient of the offense. It is impossible to dissociate the floor of a sentencing range from the penalty affixed to the crime. 2. Here, the sentencing range supported by the jury's verdict was five years' imprisonment to life, but the judge, rather than the jury, found brandishing. This increased the penalty to which Alleyne was subjected and violated his Sixth Amendment rights.

KANSAS’S RESPONSE TO ALLEYNE A. Special session - legislation In a special session convened in September 2013, the legislature amended Kansas’ Hard 50 sentencing statute to provide for jury sentencing. The controversial part of the statute is its retroactivity provision, which purports to make the revisions applicable to Hard 50 cases prior to the effective date of the statute. B. Cases State v. Hilt, Kan. , 2014 WL 1512467 (April 18, 2014). The hard 50 life sentence imposed in this case is unconstitutional under Alleyne v. United States, 570 U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), because the sentencing judge, rather than the jury, found the existence of four aggravating factors, and did so on a preponderance-of-the-evidence rather than a beyond-a-reasonable-doubt standard. State v. Soto, Kan. , 2014 WL 1407665 (April 11, 2014). Kansas' statutory procedure for imposing a hard 50 sentence as provided in K.S.A. 21–4635 violates the Sixth Amendment to the United States Constitution as interpreted in Alleyne v. United States, 570 U.S. ––––, 133 S.Ct. 2151, 2155, 2160–63, 186 L.Ed.2d 314 (2013), because it permits a judge to find by a preponderance of the evidence the existence of one or more aggravating factors necessary to impose an increased mandatory minimum sentence, rather than requiring a jury to find the existence of the aggravating factors beyond a reasonable doubt.

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C. Retroactivity State v. Astorga, Kansas Supreme Court Case No.: 103083 This case was pending in the U.S. Supreme Court when Alleyne was decided. The Court remanded back to the Kansas Supreme Court. Astorga has been argued before the Kansas Supreme Court. The issue is the remedy for the constitutional violation and whether the State may seek the Hard 50 under the retroactivity provision of the revised statute.

RIGHT TO COUNSEL Hinton v. Alabama, U.S. , 134 S.Ct. 1081 (2014). In a capital murder prosecution, defense counsel's failure to request additional funds to replace an inadequate expert in firearms and toolmark evidence amounted to deficient performance, as required to support a claim of ineffective assistance of counsel; counsel's failure was based on his mistaken belief that available funding was capped at $1,000, he knew that he needed more funding to present an effective rebuttal to state experts' conclusion that bullets involved in murders had been fired from defendant's revolver, and he failed to make even a cursory investigation of state statute that provided funding for indigent defendants. U.S.C.A. Const.Amend. 6; Ala.Code 1975, § 15–12–21(d) (1998).

EIGHTH AMENDMENT

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

General Death Penalty Jurisprudence Tuilepa v. California, 512 U.S. 967 (1994) Our capital punishment cases under the Eighth Amendment address two different aspects of the capital decisionmaking process: the eligibility decision and the selection decision. To be eligible for the death penalty, the defendant must be convicted of a crime for which the death penalty is a proportionate punishment. Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). To render a defendant eligible for the death penalty in a homicide case, we have indicated that the trier of fact must convict the defendant of murder and find one “aggravating circumstance” (or its equivalent) at either the guilt or penalty phase. See, e.g., Lowenfield v. Phelps, 484 U.S. 231, 244–246, 108 S.Ct. 546, 554–555, 98 L.Ed.2d 568 (1988); Zant v. Stephens, 462 U.S. 862, 878, 103 S.Ct. 2733, 2743, 77 L.Ed.2d 235 (1983)\fs26fs26 . The aggravating circumstance may be contained in the definition of the crime or in a separate sentencing factor (or in both). Lowenfield, supra,

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at 244–246, 108 S.Ct., at 554–555. As we have explained, the aggravating circumstance must meet two requirements. First, the circumstance may not apply to every defendant convicted of a murder; it must apply only to a subclass of defendants convicted of murder. See Arave v. Creech, 507 U.S. 463, 474, 113 S.Ct. 1534, 1542, 123 L.Ed.2d 188 (1993) (“If the sentencer fairly could conclude that an aggravating circumstance applies to every defendant eligible for the death penalty, the circumstance is constitutionally infirm”). Second, the aggravating circumstance may not be unconstitutionally vague. Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 1764–1765, 64 L.Ed.2d 398 (1980); see Arave, supra, 507 U.S., at 471, 113 S.Ct., at 1541 (court “ ‘must first determine whether the statutory language defining the circumstance is itself too vague to provide any guidance to the sentencer’ ”) (quoting Walton v. Arizona, 497 U.S. 639, 654, 110 S.Ct. 3047, 3057–3058, 111 L.Ed.2d 511 (1990)). We have imposed a separate requirement for the selection decision, where the sentencer determines whether a defendant eligible for the death penalty should in fact receive that sentence. “What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime.” Zant,

supra, 462 U.S., at 879, 103 S.Ct., at 2743–2744; see also Woodson v. North Carolina, 428 U.S. 280, 303–304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (plurality opinion). That requirement is met when the jury can consider relevant mitigating evidence of the character and record of the defendant and the circumstances of the crime. Blystone v.

Pennsylvania, 494 U.S. 299, 307, 110 S.Ct. 1078, 1083, 108 L.Ed.2d 255 (1990) (“requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence”); see Johnson v. Texas, 509 U.S. 350, 361, 113 S.Ct. 2658, 2665, 125 L.Ed.2d 290 (1993).

Kansas Capital Murder and Penalty laws K.S.A. 21-5401(As amended March 12, 2014). (a) Capital murder is the: (1) Intentional and premeditated killing of any person in the commission of kidnapping, as defined in subsection (a) of K.S.A. 2013 Supp. 21-5408, and amendments thereto, or aggravated kidnapping, as defined in subsection (b) of K.S.A. 2013 Supp. 21-5408, and amendments thereto, when the kidnapping or aggravated kidnapping was committed with the intent to hold such person for ransom; (2) intentional and premeditated killing of any person pursuant to a contract or agreement to kill such person or being a party to the contract or agreement pursuant to which such person is killed;

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(3) intentional and premeditated killing of any person by an inmate or prisoner confined in a state correctional institution, community correctional institution or jail or while in the custody of an officer or employee of a state correctional institution, community correctional institution or jail; (4) intentional and premeditated killing of the victim of one of the following crimes in the commission of, or subsequent to, such crime: Rape, as defined in K.S.A. 2013 Supp. 21-5503, and amendments thereto, criminal sodomy, as defined in subsections (a)(3) or (a)(4) of K.S.A. 2013 Supp. 21-5504, and amendments thereto, or aggravated criminal sodomy, as defined in subsection (b) of K.S.A. 2013 Supp. 21-5504, and amendments thereto, or any attempt thereof, as defined in K.S.A. 2013 Supp. 21-5301, and amendments thereto; (5) intentional and premeditated killing of a law enforcement officer; (6) intentional and premeditated killing of more than one person as a part of the same act or transaction or in two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct; or (7) intentional and premeditated killing of a child under the age of 14 in the commission of kidnapping, as defined in subsection (a) of K.S.A. 2013 Supp. 21-5408, and amendments thereto, or aggravated kidnapping, as defined in subsection (b) of K.S.A. 2013 Supp. 21-5408, and amendments thereto, when the kidnapping or aggravated kidnapping was committed with intent to commit a sex offense upon or with the child or with intent that the child commit or submit to a sex offense. (b) For purposes of this section, "sex offense" means rape, as defined in K.S.A. 2013 Supp. 21-5503, and amendments thereto, aggravated indecent liberties with a child, as defined in subsection (b) of K.S.A. 2013 Supp. 21-5506, and amendments thereto, aggravated criminal sodomy, as defined in subsection (b) of K.S.A. 2013 Supp. 21-5504, and amendments thereto, selling sexual relations, as defined in K.S.A. 2013 Supp. 21-6419, and amendments thereto, promoting the sale of sexual relations, as defined in K.S.A. 2013 Supp. 21-6420, and amendments thereto, commercial sexual exploitation of a child, as defined in K.S.A. 2013 Supp. 21-6422, and amendments thereto, or sexual exploitation of a child, as defined in K.S.A. 2013 Supp. 21-5510, and amendments thereto. (c) Capital murder or attempt to commit capital murder is an off-grid person felony.

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K.S.A. 2013 Supp. 21-6617 (as amended March 12, 2014): (a) If a defendant is charged with capital murder, the county or district attorney shall file written notice if such attorney intends, upon conviction of the defendant, to request a separate sentencing proceeding to determine whether the defendant should be sentenced to death. In cases where the county or district attorney or a court determines that a conflict exists, such notice may be filed by the attorney general. Such notice shall be filed with the court and served on the defendant or the defendant's attorney not later than seven days after the time of arraignment. If such notice is not filed and served as required by this subsection, the prosecuting attorney may not request such a sentencing proceeding and the defendant, if convicted of capital murder, shall be sentenced to life without the possibility of parole, and no sentence of death shall be imposed hereunder. (b) Except as provided in K.S.A. 2013 Supp. 21-6618 and 21-6622, and amendments thereto, upon conviction of a defendant of capital murder, the court, upon motion of the prosecuting attorney, shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to death. The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable. If any person who served on the trial jury is unable to serve on the jury for the sentencing proceeding, the court shall substitute an alternate juror who has been impaneled for the trial jury. If there are insufficient alternate jurors to replace trial jurors who are unable to serve at the sentencing proceeding, the trial judge may summon a special jury of 12 persons which shall determine the question of whether a sentence of death shall be imposed. Jury selection procedures, qualifications of jurors and grounds for exemption or challenge of prospective jurors in criminal trials shall be applicable to the selection of such special jury. The jury at the sentencing proceeding may be waived in the manner provided by K.S.A. 22-3403, and amendments thereto, for waiver of a trial jury. If the jury at the sentencing proceeding has been waived or the trial jury has been waived, the sentencing proceeding shall be conducted by the court. (c) In the sentencing proceeding, evidence may be presented concerning any matter that the court deems relevant to the question of sentence and shall include matters relating to any of the aggravating circumstances enumerated in K.S.A. 2013 Supp. 21-6624, and amendments thereto, and any mitigating circumstances. Any such evidence which the court deems to have probative value may be received regardless of its admissibility under the rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements. Only such evidence of aggravating circumstances as the state has made known to the defendant prior to the sentencing proceeding shall be admissible, and no evidence secured in violation of the constitution of the United States or of the state of

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Kansas shall be admissible. No testimony by the defendant at the sentencing proceeding shall be admissible against the defendant at any subsequent criminal proceeding. At the conclusion of the evidentiary presentation, the court shall allow the parties a reasonable period of time in which to present oral argument. (d) At the conclusion of the evidentiary portion of the sentencing proceeding, the court shall provide oral and written instructions to the jury to guide its deliberations. (e) If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. 2013 Supp. 21-6624, and amendments thereto, exist and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced to death; otherwise, the defendant shall be sentenced to life without the possibility of parole. The jury, if its verdict is a unanimous recommendation of a sentence of death, shall designate in writing, signed by the foreman of the jury, the statutory aggravating circumstances which it found beyond a reasonable doubt. If, after a reasonable time for deliberation, the jury is unable to reach a verdict, the judge shall dismiss the jury and impose a sentence of life without the possibility of parole and shall commit the defendant to the custody of the secretary of corrections. In nonjury cases, the court shall follow the requirements of this subsection in determining the sentence to be imposed. (f) Notwithstanding the verdict of the jury, the trial court shall review any jury verdict imposing a sentence of death hereunder to ascertain whether the imposition of such sentence is supported by the evidence. If the court determines that the imposition of such a sentence is not supported by the evidence, the court shall modify the sentence and sentence the defendant to life without the possibility of parole, and no sentence of death shall be imposed hereunder. Whenever the court enters a judgment modifying the sentencing verdict of the jury, the court shall set forth its reasons for so doing in a written memorandum which shall become part of the record. (g) A defendant who is sentenced to imprisonment for life without the possibility of parole shall spend the remainder of the defendant's natural life incarcerated and in the custody of the secretary of corrections. A defendant who is sentenced to imprisonment for life without the possibility of parole shall not be eligible for commutation of sentence, parole, probation, assignment to a community correctional services program, conditional release, postrelease supervision, functional incapacitation release pursuant to K.S.A. 22-3728, and amendments thereto, or suspension, modification or reduction of sentence. Upon sentencing a defendant to imprisonment for life without the possibility of parole, the court shall commit the defendant to the custody of the secretary of corrections and the

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court shall state in the sentencing order of the judgment form or journal entry, whichever is delivered with the defendant to the correctional institution, that the defendant has been sentenced to imprisonment for life without the possibility of parole. Kansas Death Row There are now nine men on death row. Thirteen men have been sentenced to death, but plea agreements were reached during the appeals process in three cases which resulted in lesser sentences. Current Death Row inmates are: Gary Kleypas (Crawford) convicted for the 1996 rape-murder of Carrie Williams in Pittsburg, Kansas. The Kansas Supreme Court, in its review of his case, found serious problems with the death penalty statute and required that the penalty phase of the Kleypas case be revisited. The sentence was overturned in 2001, and the new sentencing trial was held in Wyandotte County in 2008. On September 15, 2008, a jury again sentenced Kleypas to death. His sentencing appeal is pending in the Kansas Supreme Court. Reginald Carr (Sedgwick) convicted of capital murder for the December 15, 2000 murders of Jason Befort, Brad Heyka, Heather Muller, and Aaron Sander and of first degree murder (non-capital) for killing Ann Walenta four days before the quadruple murder. Jonathan Carr (Sedgwick) convicted of the same five murders as his older brother Reginald. The Carr brothers’ direct appeals were argued in the Kansas Supreme Court in December 2013. John E.Robinson, Sr. (Johnson), convicted of capital murder in the deaths of Izabel Lewicka and Suzette Trouten and of first degree murder in the case of Lisa Stasi, who disappeared in 1985 and was never found. His direct appeal is pending in the Kansas Supreme Court. Douglas Belt (Sedgwick) convicted in November 2004 of capital murder, attempted rape and aggravated arson in the killing of Lucille Gallegos in west Wichita. His direct appeal is pending in the Kansas Supreme Court. Sidney Gleason (Barton) convicted in July 2006 in the shooting deaths of Miki Martinez and Darren Wormkey in February 2004. The other person accused in the case, Damian Thompson, cut a deal and got a life sentence. Thompson will be eligible for parole in 2029. His direct appeal is pending in the Kansas Supreme Court.

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Scott Cheever (Greenwood) convicted in November 2007, of killing Greenwood County Sheriff Matt Samuels in January 2005. United States Supreme Court overturned the Kansas Supreme Court’s decision. See above, Kansas v. Cheever. Justin Thurber (Cowley) convicted in the January 2007 killing of 19-year-old college student Jodi Sanderholm, and sentenced in March 2009. His direct appeal is pending in the Kansas Supreme Court. James Kraig Kahler (Osage) convicted in October 2011 of killing his wife, Karen Kahler, his two daughters, Lauren and Emily Kahler, and his wife’s grandmother, Dorothy Wight. His direct appeal is pending in the Kansas Supreme Court. Death Sentence Currently Not in Effect: Litigation Continues Phillip Cheatham (Shawnee) convicted in September 2005 of one count of capital murder, two counts of first degree murder and one count of attempted first degree murder in the deaths of Gloria Jones, and Annette Roberson. A third victim, Annetta Thomas, played dead and survived with 19 gunshot wounds. In February 2010 a Shawnee County District Court Judge ruled that Cheatham should be resentenced due to inadequate representation of counsel during the penalty phase of his trial. Three individuals have reached plea agreements that negated their sentences of death. In reviewing the case of Michael Marsh (Sedgwick), convicted and sentenced to death for the killings of Marry Ane and Marry Elizabeth Pusch, the Kansas Supreme Court ruled that the death penalty statute was unconstitutional because of its requirement that, when a jury at the sentencing hearing finds aggravating and mitigating factors to be equal, they must choose death. The Kansas Court’s decision was overturned by the U.S. Supreme Court in June 2006. Marsh was to receive a new trial, but in April 2009 he reached a plea agreement with Sedgwick County prosecutors and was sentenced to life in prison. Stanley Elms, who was convicted of the rape and murder of Regina Gray in 1998 (Sedgwick), had been on death row since his conviction, and his sentence was also vacated by the Kleypas’ decision. His attorneys struck a deal with the Sedgwick County Dstrict Attorney’s office, which agreed to drop the death penalty for Elms if he would not pursue an appeal accusing prosecutors of misconduct during the case. In November, 2004, Elms was sentenced to a hard 40 sentence.

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Gavin Scott was convicted in Sedgwick County of the murders of Doug and Beth Brittain in 1996. His death sentence was overturned in May 2008 by the Kansas Supreme Court; one of the reasons cited was erroneous instructions during the penalty phase of his trial. In March 2010, he and his attorneys reached a plea agreement giving him two consecutive life sentences; he will be eligible for parole in approximately 85 years. Another man convicted in these two murders received two consecutive life sentences in his original trial. www.ksabolition.org

Kansas Costs Report of the Judicial Counsel: Death Penalty Advisory Committee (February 13, 2014). www.deathpenaltyinfo.org

EXECUTIVE SUMMARY

This report is based on two sets of data: {1) cases used in a 2003 Legislative Post Audit Report and {2) 34 cases which could

have been charged as capital murder filed between 2004 and 2011. Of those 34 cases,

16 had jury trials and 18 were settled by plea agreement for sentences of imprisonment.

BIDS Defense Costs for Cases filed 2004-2011 Total Average

Total BIDS costs (trial & appeal) for 9 trial cases where death penalty sought: $3,561,856 ($ 395,762/case)

Total BIDS costs {trial & appeal) for 6 trial cases where death penalty not sought: $ 593,781 ($ 98,963/case)

• Total BIDS costs for 6 plea cases where death penalty sought: $ 783,568 {$ 130,595/case)

• Total BtDS costs for 11plea cases where death penalty not sought: $ 711,823 ($ 64,711/case)

District Court Costs for Cases filed 2004-2011

• District Court costs {trial & appeal) for 9 trial cases where death penalty sought: $ 652,770 ($ 72,530/case)

• District Court costs {trial & appeal) for 5 trial cases where death penalty not sought:$ 107,770 ($ 21,554/case)

• District Court costs for 4 plea cases where death penalty sought: $ 65,051 ($ 16,263/case)

• District Court costs for 9 plea cases where death penalty not sought: $ 66,454 ($ 7,384/case)

Pre-2003 Cases Reviewed in Legislative Post Audit Study

Since Post Audit published its study in December 2003, BIDS has incurred additional expenses on the 14 death penalty

cases involved in the 2003 study totaling $1,930,007 ($137,858/case). The District Courts have documented

$36,561($3,047/case) spent since 2003 on 11cases (data was not provided in three of the cases). An average of $200 per

case to BIDS was documented for the 7 cases where the death penalty was not sought. Similarly, the District Courts spent

an average of $162 per case since January 1, 2004, on non-death cases.

Measurement by Days Spent in Court

In addition to seeking actual and estimated expenditure of public funds, the Committee attempted to tabulate from court

docket sheets the actual number of days counsel appeared before a judge. In the 37 cases which were tried to a jury,

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cases where the prosecution sought the death penalty averaged 40.13 days in court as compared to 16.79 in tried

cases where the death penalty was not sought.

In cases which were terminated by plea agreements, cases in which the death penalty was sought averaged 13.5 court

days. When the death penalty was not sought,8.8 court days was the average.

Supreme Court Costs

Justices assigned to write the opinion of the Court estimate they spend 20 times more hours on a death penalty appeal

than they would on a non-death penalty case. Justices who do not write the opinion are estimated to spend five times

more hours on a death penalty appeal than they would otherwise. The Court's research staff has devoted some 13,600

hours over the last three years to death penalty appeals.

Future Incarceration Costs

The Committee did not attempt to project future incarceration costs; however, prisoners incarcerated under a sentence

of death are housed exclusively in administrative segregation, which is estimated to cost S49,380 per inmate per year.

This is double the average annual cost of $24,690 to house a prisoner in general population. The marginal cost to house

one additional inmate- i.e. the adjustment to the DOC's budget that reflects the expenditures directly affected by the

addition or subtraction of a single inmate-- is $3,398 per year.

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National Information

1. Current Trends The Death Penalty in 2013: Year End Review www.deathpenaltyinfo.org

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2. Geography of the death penalty The 2% Death Penalty: How a Minority of Counties Produce Most Death Cases at Enormous Costs to Us. Richard C. Dieter, Executive Director, Death Penalty Information Center (October 2013). www.deathpenaltyinfo.org

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Lethal injection

1. Supreme Court case law Baze v. Rees, 553 U.S. 35 (2008). To constitute cruel and unusual punishment, an execution method must present a “substantial” or “objectively intolerable” risk of serious harm. A State's refusal to adopt proffered alternative procedures may violate the Eighth Amendment only where the alternative procedure is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain. (a) This Court has upheld capital punishment as constitutional. See Gregg v. Georgia, 428 U.S. 153, 177, 96 S.Ct. 2909, 49 L.Ed.2d 859. Because some risk of pain is inherent in even the most humane execution method, if only from the prospect of error in following the required procedure, the Constitution does not demand the avoidance of all risk of pain. Petitioners contend that the Eighth Amendment prohibits procedures that create an “unnecessary risk” of pain, while Kentucky urges the Court to approve the “‘substantial risk’ ” test used below. (b) This Court has held that the Eighth Amendment forbids “punishments of torture, ... and all others in the same line of unnecessary cruelty,” Wilkerson v. Utah, 99 U.S. 130, 136, 25 L.Ed. 345, such as disemboweling, beheading, quartering, dissecting, and burning alive, all of which share the deliberate infliction of pain for the sake of pain, id., at 135. Observing also that “[p]unishments are cruel when they involve torture or a lingering death[,] ... something inhuman and barbarous [and] ... more than the mere extinguishment of life,” the Court has emphasized that an electrocution statute it was upholding “was passed in the effort to devise a more humane method of reaching the result.” In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 34 L.Ed. 519. 2. Current issues. A) Difficulty obtaining drugs.

° Some are not produced anymore

° European manufacturers will not export to U.S.

° Going to loosely regulated “compounding pharmacies” B) Botched recent executions using new drugs.

° Ohio: Dennis McGuire

° Oklahoma: Clayton Little

° Personnel administering drugs are not necessarily competent C) Secrecy.

° States do not want to disclose the drugs or where the drugs are being obtained.

° Litigation to force states to provide information.