221 P.3d 1105 (Kan. 2009), 99,110, State v. Ellmaker

Docket Nº:99,110.
Citation:221 P.3d 1105, 289 Kan. 1132
Opinion Judge:LUCKERT, J.:
Party Name:STATE of Kansas, Appellee, v. Andrew Ramey ELLMAKER, Appellant.
Attorney:Carl Folsom, III, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant. Steven J. Obermeier, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.
Case Date:December 04, 2009
Court:Supreme Court of Kansas

Page 1105

221 P.3d 1105 (Kan. 2009)

289 Kan. 1132

STATE of Kansas, Appellee,


Andrew Ramey ELLMAKER, Appellant.

No. 99,110.

Supreme Court of Kansas.

December 4, 2009

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Syllabus by the Court

1. Where a trial objection to a jury instruction is different from the argument presented on appeal, a clearly erroneous standard of review applies.

2. An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. To reach this conclusion, an appellate court examines the instructions as a whole, rather than isolates any one instruction, and determines if the instructions properly and fairly state the law as applied to the facts of the case.

3. Under K.S.A. 22-3414(3), a party cannot allege error arising from an instruction that the party requested.

4. An instruction containing a permissive inference does not relieve the State of its burden because the State is still required to convince the jury that an element, such as intent, should be inferred based on the proven facts.

5. Instructing the jury that another trial would be a burden on both sides is error.

6. Appellate courts have unlimited review over questions involving the existence of jurisdiction.

7. Appellate jurisdiction is defined by statute; the right to appeal is neither a vested nor constitutional right.

8. While K.S.A. 38-1681 of the Kansas Juvenile Justice Code precludes an appeal of an order waiving juvenile status when the juvenile has consented to the waiver, it does not preclude an appeal if the judge failed to follow the statutory requirements for the waiver.

9. [289 Kan. 1133] Under K.S.A. 38-1681, if a juvenile consents to an order waiving juvenile status and authorizing prosecution as an adult, an appellate court does not have jurisdiction to consider the issues related to the waiver proceeding or to the judicial determination to waive juvenile jurisdiction even if a district court fails to inform a juvenile of the items listed in K.S.A. 38-1636(c)(2).

10. The requirement in K.S.A. 22-3201(c) that a complaint, information, or indictment allege facts sufficient to constitute a crime or specific crime subcategory in the crime seriousness scale (the crime severity) does not require the State to allege the aggravating factors that are used as a basis to impose a hard 50 life sentence under K.S.A. 21-4635.

11. Kansas' hard 50 sentencing scheme under K.S.A. 21-4635 is not unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); or

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Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999).

12. Cumulative trial errors, when considered collectively, may be so great as to require reversal of a defendant's convictions. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found under this cumulative effect rule, however, if the evidence is overwhelming against the defendant.

Carl Folsom, III, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Steven J. Obermeier, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.



Andrew Ramey Ellmaker, a juvenile who was certified to stand trial as an adult, appeals his convictions of premeditated first-degree murder and aggravated battery. He also appeals his sentence of life imprisonment without parole for 50 years. He raises several issues that we have taken the liberty to rephrase to [289 Kan. 1134] reflect the parties' arguments and to reorder for ease of discussion: (1) Did the district court err by giving an instruction regarding the definition of criminal intent as it related to premeditated first-degree murder? (2) Did the district court err by giving an Allen -type instruction to the jury (see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 [1896] )? (3) Where a juvenile stipulates to the evidence regarding a waiver of juvenile jurisdiction, can an appellate court under K.S.A. 38-1681 consider whether the district court erred in authorizing the prosecution of the defendant as an adult without first submitting to a jury the question of whether the facts supported the court's certification decision? (4) Where a juvenile stipulates to the evidence regarding a waiver of juvenile jurisdiction, can an appellate court consider whether the district court erred in certifying the defendant for prosecution as an adult without complying with K.S.A. 38-1636(c)(2), the statute in effect at the time of the offenses and certification? (5) Were the defendant's due process rights violated because the criminal complaint did not specify the underlying aggravating factors supporting a hard 50 life sentence? (6) Is Kansas' hard 50 sentencing scheme unconstitutional? and (7) Did cumulative errors deprive the defendant of a fair trial?

We reject most of Ellmaker's arguments, finding merit only in his contention that the Allen -type instruction was erroneous. That error, however, was not reversible, and we therefore affirm Ellmaker's convictions and his hard 50 life sentence.

Factual and Procedural Background

Ellmaker's convictions arise from the murder of his social worker, Teri Zenner, and the aggravated battery of his mother, Mary Susan Ellmaker (Sue). When the crimes occurred in August 2004, Ellmaker was 17 years old and a senior in high school. He had a long history of mental " dysfunction," dating back to his early childhood. Ellmaker had been diagnosed with having schizotypal personality, which is a personality trait containing some elements of schizophrenia. As part of his treatment regimen, Ellmaker was assigned a social worker through the Johnson County Mental Health Center, and Zenner had served in that role for about a year.

[289 Kan. 1135] On the day of the crime, Zenner came to Ellmaker's home for an after-school visit. Initially, Ellmaker and Zenner were the only ones in the home. Consequently, most of what the jury learned about the events came from Ellmaker's statements to police. These statements were made several hours after the crimes were committed and after Ellmaker waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, reh. denied 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966). Recordings of the police interviews were played to the jury.

According to Ellmaker, when Zenner arrived she indicated the meeting would be short. She quickly completed some paper work for Ellmaker to sign and then prepared

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to leave. But Ellmaker did not want her to leave, and he asked her to go upstairs to his bedroom. Ellmaker told the detective he had a reason for not allowing Zenner to leave, but he did not want to say what it was. Eventually Ellmaker " convinced" Zenner to go to his bedroom.

Once there, Ellmaker pulled out his sharpest knife, which he described as a sharpened chef's knife. Zenner told him she was scared, needed air, and wanted to leave. She told Ellmaker that she would not report the incident, but he told the detective, " I knew she was going to go to the police about me holding her at knife point in my room so I did it."

According to Ellmaker, he " did it" when his mother Sue came home earlier than he expected, approximately 30 minutes after Ellmaker and Zenner had gone into his bedroom. He explained that Zenner was crying loudly when he heard his mother come into the house. Sue testified, however, that she did not hear the crying when she first entered the house. But, after just a few minutes, she went back to her car briefly, reentered the house, and at that point heard Zenner crying. Sue yelled for her son to come downstairs. When nothing happened, Sue persisted, telling Ellmaker numerous times that she wanted both of them to come down. At one point, Sue threatened to call the police, and Ellmaker replied, " When?" Giving Ellmaker until the count of three to come downstairs, Sue began counting down, " Three, two, one."

When Sue got to " one," Zenner sprang for the door. As she did, Ellmaker stabbed her in the throat. Ellmaker told the detective he [289 Kan. 1136] " just didn't care." Despite the wound, Zenner escaped; she came running out of the bedroom and down the stairs. Ellmaker followed and continued stabbing her. He explained that " one [stab] came" and " then all the others had to come."

When Ellmaker and Zenner got to the bottom of the stairs, Sue placed herself between Zenner and Ellmaker, yelling for Ellmaker to stop. All three tumbled to the floor, and Sue rolled onto Zenner to protect her. Ellmaker stabbed Sue four times in the back, once in the chest, and once in the right arm; he also slashed her ear. Ellmaker stopped stabbing at them when the knife bent.

At that point, Sue ran next door to get help and call 911. Meanwhile, Ellmaker returned to his bedroom, turned on some music, and grabbed his chainsaw from the closet. He explained to the detective that he followed the instructions printed on the chainsaw's box that detailed seven steps for starting and operating the chainsaw. Ellmaker then used the chainsaw to almost sever Zenner's left forearm and her neck. He also slashed her head, back, and right hip. At this point, the chain broke which, according to Ellmaker, caused him to be " pissed...

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