State v. Bernhardt

• Decision Date: 27 May 2016
• Docket Number: No. 111,639,111,639
• Citation: 372 P.3d 1161,304 Kan. 460
• Parties: State of Kansas, Appellee, v. Anson R. Bernhardt, Appellant.
• Court: Kansas Supreme Court

304 Kan. 460

372 P.3d 1161

State of Kansas, Appellee,

v.Anson R. Bernhardt, Appellant.

No. 111,639

Supreme Court of Kansas.

Opinion filed May 27, 2016.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by Beier, J.:

Defendant Anson R. Bernhardt appeals his conviction for premeditated first-degree murder.

Bernhardt raises three instructional issues, arguing the district judge erred by (1) adding language to a pattern jury instruction defining premeditation; (2) giving two separate jury instructions on intentional second-degree murder and reckless second-degree murder instead of a single instruction covering both theories; and (3) failing to instruct on voluntary manslaughter. He also claims the cumulative effect of these errors deprived him a fair trial. Bernhardt further contends the district judge erred by applying the 2013 amendments to Kansas' hard 50 sentencing scheme retroactively, and he challenges the aggravating circumstances ultimately relied upon to support imposition of his hard 50 sentence.

We hold that there was no error and affirm Bernhardt's conviction and sentence.

Factual and Procedural Background

We review the evidence in the record before us at greater length than we otherwise might because of the nature of the challenges Bernhardt advances on appeal.

On the afternoon of September 29, 2012, Bernhardt picked up his live-in girlfriend Amber Kostner from work. About 7 that evening, the two went to a party, picking up their friend Josie Breeden on the way. Bernhardt left the party about 10:30 to take Breeden home, then returned to the party for a short time. When he and Kostner left, she was not ready to go home; so they went to a bar and stayed there for 15 to 20 minutes.

The next morning, Officer Keith Luongo responded to a report that there was a body in a ditch across the road from Campus High School in Haysville. The body would later be identified as Kostner's.

The Sedgwick County Sheriff's Department took Bernhardt into custody for questioning, and he spoke to a detective in a taped interview that would later be introduced at trial. In the interview, Bernhardt initially said that he had not seen Kostner since she left the bar they had gone to after the party. He claimed that Kostner walked out of the bar during an argument. But, as Bernhardt explained the events in more detail, he contradicted his earlier statement. He then said that he and Kostner had gone home together from the bar and that she had later left.

While he and Kostner were en route home, Bernhardt said Kostner was saying things like: “For God sake Anson I'm a grown ass woman” and “I wanna have another drink, I'll have another drink.” Bernhardt said that, once the couple arrived home, he told Kostner they could not keep arguing because his mother would kick them out of the house. It was at that point that Kostner told Bernhardt to “fuck off” and left. Bernhardt said it was not unusual for Kostner to leave after they had a fight.

Bernhardt then told the detective that he became worried the next morning when he woke up and Kostner had not returned. Bernhardt called several of Kostner's friends and relatives, as well as hospitals and the jail, but no one had seen or heard from her. Bernhardt also recounted what he had done the rest of the day, which included spending time on the Internet playing games, helping a friend work on a car, and then spending the afternoon at Breeden's house. That evening, Bernhardt went to a couple of bars. He was at the second bar when officers asked him to come in for questioning.

Investigators then had Bernhardt repeat his story, asking for additional details at various points. One of the investigators asked Bernhardt why Kostner's car might have been by Campus High School. Bernhardt initially denied knowing why the car would have been there, but the investigators' repeated requests that he explain led eventually to his confession:

“Investigator: What happened?

“Bernhardt: I beat the crap out of her and dumped her body.

....

“Investigator: Well you say you beat the crap out of her. How?

“Bernhardt: I—was kicking her.

“Investigator: Where at?

“Bernhardt: Everywhere.... I pretty much kicked her everywhere. And I threw her in the backseat and I drove her to 55th and Meridian and dumped her off.”

Bernhardt then elaborated, beginning with events in the car after he and Kostner left the bar: “She was yelling at me, she reached over and smacked me and I was driving and—I pulled over and pulled her over to—out of the driver's side by her hair and then she hit the ground and I started kicking her.” He also told the officers that Kostner “screamed for a second when I pulled her hair. Pulled her out of the car. And then she—she wasn't really saying anything after that.”

Bernhardt said that after he finished kicking Kostner he put her in the backseat and started driving; but, before he reached his ultimate destination, he stopped and put her in the trunk because of “[t]he sound of her breathing.” He said that “[i]t was—it wasn't like smooth breathing. It was kinda garbled, like—probably blood or something.” He “didn't wanna hear her.”

When Bernhardt reached 55th and Meridian, “[he] pulled over ... [a]nd [he] pulled her out of the trunk and [he] kinda threw her but she kinda rolled a little bit.” Then he left. Bernhardt told the officers that Kostner “was still breathing when [he] threw her on the side of the road,” and he did not know she had died until the interview. When asked why he would leave Kostner on the side of the road if she was still breathing, Bernhardt said he “was probably scared or something.” When asked if he left Kostner by the side of the road because he thought she was going to die, Bernhardt answered: “Maybe. I don't know.”

Bernhardt said initially that he did not know how many times he kicked Kostner. But, when pressed, he said: “20? 30? I don't know.” He also said that he “probably” kicked Kostner in the head, “[p]retty much from her waist up.”

When asked if he had considered calling an ambulance for Kostner or otherwise getting her help, Bernhardt said: “I thought about it later and I thought about going and getting her and taking her to the hospital, taking her to the emergency room.” When asked why he had not done so, Bernhardt said he did not know.

Bernhardt's statements led to the charge of first-degree premeditated murder.

At trial, the State's primary evidence against Bernhardt was the video of his interview. The State also put on several witnesses who corroborated many of the details Bernhardt had given about what he and Kostner had been doing the night of her murder and what he did the next morning. Dr. Scott Kipper, Sedgwick County's deputy coroner and medical examiner, testified about the results of Kostner's autopsy. In his opinion, Kostner had suffered at least six distinct blows to the front of her head, and “[t]he cause of death was multiple blunt force injuries, and the manner was homicide.” Kipper also opined that it was possible that Kostner would have survived, had she received “immediate medical attention.”

After both the State and defense rested, the district court judge and counsel discussed jury instructions. The State requested additions to the Pattern Instructions for Kansas (PIK) language on premeditation, arguing it was necessary for the jury to understand that Bernhardt did not have to have thought about killing Kostner before their physical altercation began.

The unadorned PIK language read:

“ ‘Premeditation’ means to have thought over the matter beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act of taking another's life.”

The State requested that the district judge add the following three paragraphs:

“Premeditation does not have to be present before a fight, quarrel, or struggle begins. Premeditation is the time of reflection or deliberation. Premeditation does not necessarily mean that an act is planned, contrived, or schemed beforehand.

“Premeditation can be inferred from other circumstances including: (1) the nature of the weapon used, (2) the lack of provocation, (3) the defendant's conduct before and after the killing, (4) threats and declarations of the defendant before and during the occurrence, or (5) dealing of lethal blows after the deceased was felled and rendered helpless.

“Premeditation can occur during the middle of a violent episode, struggle, or fight.”

Bernhardt's lawyer objected to these paragraphs, arguing they were “outside of what PIK 4 calls for, and I don't believe it's appropriate.”

The judge acknowledged a preference for using PIK language alone but granted the State's request because the additional language accurately stated the law. He further observed that, based on the facts of the case, “there is more than a slight possibility of confusion by the jury about when premeditation can or cannot occur and what evidence can be used to prove premeditation.”

After the district judge granted the State's request, Bernhardt asked for a different, additional paragraph. That brief paragraph was inserted between the PIK language and the three paragraphs that had been sought by the State; it read: “Premeditation is the process of thinking about a proposed killing before engaging in homicidal conduct.” The State did not object to this further addition to the instruction.

The discussion then turned to which lesser included offenses instructions should be given. The State requested an intentional second-degree murder instruction but opposed a reckless second-degree murder instruction. The district judge concluded...