State v. Brown

• Decision Date: 03 February 2006
• Docket Number: No. 92,910.,92,910.
• Citation: 127 P.3d 257
• Parties: STATE of Kansas, Appellee, v. Charles BROWN, Appellant.
• Court: Kansas Supreme Court

Page 257

127 P.3d 257

STATE of Kansas, Appellee, v. Charles BROWN, Appellant.

No. 92,910.

Supreme Court of Kansas.

February 3, 2006.

Stephen B. Chapman, of Chapman & White, LLC, of Olathe, argued the cause and was on the brief for appellant.

Michael A. Russell, chief deputy district attorney, argued the cause and Jerome A. Gorman, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

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

Charles Brown was convicted of first-degree premeditated murder in 1996 and sentenced to life in prison with no possibility of parole for 25 years. He directly appealed his conviction and sentence, and this court affirmed them. State v. Brown, 266 Kan. 563, 579, 973 P.2d 773 (1999). In November 2002, Brown filed a motion to correct an illegal sentence, alleging that K.S.A. 21-3401 is unconstitutional. The district court denied Brown's motion without a hearing.

Brown appeals the district court's denial of his motion to correct an illegal sentence, claiming that (1) K.S.A. 21-3401 is unconstitutionally vague because the legislature eliminated the word "malice" from the statute; (2) the absence of the word "malice" shifts the burden of proof to the defendant; and (3) the trial court should have instructed the jury regarding the element of malice.

Brown claims that the district court lacked jurisdiction for his conviction because the statute for first-degree murder is unconstitutionally vague due to the elimination of the term "malice" from the statute in 1993. See L.1992, ch. 298, sec.3 (legislature eliminated the word "maliciously" from K.S.A. 21-3401).

"Whether a statute is unconstitutionally vague or overbroad is a question of law over which this court has unlimited review. [Citations omitted.]

....

`The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond reasonable doubt.' [Citation omitted.]" State v. Whitesell, 270 Kan. 259, 268, 13 P.3d 887 (2000).

Brown's sole argument is that a person who executes a convicted murderer pursuant to the death penalty statutes would be guilty of first-degree murder pursuant to K.S.A. 21-3401 because there is no requirement for malice. However, a party cannot challenge the constitutionality of the government's action by invoking the rights of others. State v. Thompson, 221 Kan. 165, 172, 558 P.2d 1079 (1976) (rejecting defendant's claim that the sodomy statute was unconstitutional because the defendant, who was charged with forcible sodomy, did not have standing to argue that statute discriminated against consensual homosexual acts). Accordingly, Brown has no standing to argue that K.S.A. 21-3401 is vague as applied to potential state executioners.

In State v. McCown, 264 Kan. 655, 661-63, 957 P.2d 401 (1998), we concluded that the removal of the term "malicious" from the second-degree murder statute, K.S.A.1997 Supp. 21-3402, did not render the statute unconstitutionally vague. Noting that the State must prove "[d]eath of a human being, intent to kill, and causation" as the facts necessary to establish second-degree murder, the McCown court held that these elements were not vague. 264 Kan. at 663, 957 P.2d 401.

Prior to July 1,1992, K.S.A. 21-3401(b) defined first-degree premeditated murder as "the killing of a human being committed maliciously, willfully, deliberately and with premeditation." K.S.A. 21-3401(a), the present version and the one under which the defendant was convicted, defines first-degree premeditated murder as the killing of a human being committed "[i]ntentionally and with premeditation." The only difference between second-degree intentional murder in K.S.A. 21-3402(a) and first-degree premeditated murder in K.S.A. 21-3401(a) is the element of premeditation. Premeditation means to "`have thought over the matter beforehand.'" State v. Navarro, 272 Kan. 573, 578, 35 P.3d 802 (2001). "`Premeditation is a "state of mind" relating to a person's reasons and motives for acting as he or she did.'" Navarro, 272 Kan. at 578, 35 P.3d 802. "Malicious" has been defined as "`"willfully doing a wrongful act without just cause or excuse."'" State v. Stone, 253 Kan. 105, 108, 853 P.2d 662 (1993). Thus, the terms "maliciously" and "premeditation" have different meanings and were not used synonymously by the legislature to define first-degree murder. Because the term "premeditation" as used in K.S.A. 21-3401 is not the same as the term "maliciously" previously used in K.S.A. 21-3401 and because the term "premeditation" is the only difference between first-degree murder and second-degree intentional murder, the McCown court's analysis is controlling. The elimination of the term "maliciously" from the first-degree murder statute does not make the statute unconstitutionally vague. See McCown, 264 Kan. at 663, 957 P.2d 401.

Next, Brown argues that K.S.A. 21-3401(a) is unconstitutional because the removal of the word "maliciously" shifts the burden of proof to the defendant. The constitutionality of a statute is a question of law subject to de novo review. Whitesell, 270 Kan. at 268, 13 P.3d 887.

Like his argument in the first issue, Brown relies on factual circumstances not implicated by the facts of his case. Specifically, Brown points to a state executioner and a police officer who kills someone in the line of duty. Brown has no standing to raise the constitutionality of the statute based on facts that are not implicated by his case. See Thompson, 221 Kan. at 172, 558 P.2d 1079. Accordingly, this argument is without merit.

In McCown, this court held that the elimination of the term "malicious" from the second-degree murder statu...