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Scott?s Death Sentence Reversed

Rebecca E. Woodman and Steven R. Zinn won today in State v. Gavin Scott, No. 83,801 (May 16, 2008). The court affirmed most of Scott's convictions (including capital murder), but reversed his conviction for premeditated murder, and reversed his death sentence. The court remanded Scott?s case to the district court for a new sentencing phase.

First-Degree Murder Conviction is Multiplicitous

The court concluded that Scott?s conviction for first-degree murder was multiplicitous with his death sentence under the old version of K.S.A. 21-3107(2)(d):

The State has acknowledged the murder of Douglas Brittain was a crime necessarily proved under the charge of capital murder. Accordingly, under K.S.A. 21-3107(2)(d) (Furse), Scott's convictions were multiplicitous in the absence of clear and nambiguous legislative intent authorizing multiple prosecutions for the same conduct. We are unable to conclude from a plain reading of K.S.A. 21-3439(a)(6) and its legislative history that the legislature intended to override the acknowledged reach of K.S.A. 21-3107(2)(d). In other instances, the legislature has not hesitated to state when K.S.A. 21-3107(2) is not to be applied. See K.S.A. 21-3436 (precluding application of K.S.A. 21-3107[2] to specific felony offenses regardless of whether such felony is distinct from the alleged homicide). Here, there has been no such declared legislative intent. Accordingly, we conclude Scott's conviction for the first-degree premeditated murder of Douglas Brittain must be reversed.

It seems that a similar argument would be effective under the current version of K.S.A. 21-3107(2)(b), that first-degree murder is a lesser included offense of capital murder because it is ?a crime where all elements of the lesser crime are identical to some of the elements of the crime charged.?

Equipoise under the Kansas Constitution

The court also addressed the constitutionality of the Kansas death penalty under the Kansas Constitution. The court declined to hold that the weighing equation set forth in K.S.A. 21-4624(e) violates the cruel or unusual punishment prohibition of § 9 and the due process provision of § 18 of the Kansas Constitution Bill of Rights. (For background, see Kansas v. Marsh, 548 U.S. 163, 165 L. Ed. 2d 429, 126 S. Ct. 2516 (2006) and Kansas Supreme Court's supplemental opinion to State v. Marsh, 282 Kan. 38, 144 P.3d 48 (2006)). However, the court did encourage defendant?s to keep raising proportionality arguments under § 9 of the Kansas Constitution Bill of Rights:

Our decision today should not be construed to preclude future interpretation of § 9 when considering the proportionality of a criminal sentence. In such a circumstance, we are free to further consider the historical record and decide whether § 9 should be interpreted in a manner which deviates from that given to the Eighth Amendment by the United States Supreme Court.

On a side note, the oral argument on this issue was interesting, because it involved Kansas solicitor general, and former KU Law dean, Stephen R. McAllister arguing against a law review article that he had written in law school (that the Kansas Constitution should be more expansive than the U.S. Constitution).

Death Sentence Reversal

In reversing Scott?s death sentence, the court held that the jury instructions used for mitigating factors could have caused reasonable jurors to believe that unanimity was required to find mitigating circumstances:

[W]e have considered all of the other instructions given by the trial court in an effort to decide whether jurors could have reasonably been misled to believe unanimity was required as to mitigating circumstances. Read together, the instructions repeatedly emphasize the need for unanimity as to any aggravating circumstances found to exist. Conversely, the trial court's instructions do not inform the jury as to a contrary standard for determining mitigating circumstances. The jury is left to speculate as to the correct standard. Under these circumstances, we conclude there is a substantial probability reasonable jurors could have believed unanimity was required to find mitigating circumstances. We hold failure of the trial court to provide the jury with a proper standard for determining mitigating circumstances constitutes reversible error. See Mills v. Maryland, 486 U.S. 367, 100 L. Ed. 2d 384, 108 S. Ct. 1860 (1988) (holding a death sentence should be vacated where there was a substantial probability reasonable jurors may have thought they could only consider those mitigating circumstances unanimously found to exist). Accordingly, we must reverse the death sentence and remand to the district court for a new capital sentencing hearing.

Thus, the court reversed Scott?s death sentence and remanded the case for a new capital sentencing hearing.

The court also found error in PIK Crim. 3d 56.00-C(3), or part of the "aggravating circumstances" instruction. PIK Crim. 3d 56.00-C(3) currently lists the aggravated circumstance: ?the defendant committed the crime for the defendant?s self or another for the purpose of receiving money or any other thing of monetary value.? The court held, ?PIK Crim. 3d 56.00-C(3) should be revised to specifically designate the crime of capital murder.?

Full post as published by Kansas Defenders on May 16, 2008 (boomark / email).