State v. Cady

• Decision Date: 21 January 1994
• Docket Number: No. 68,240,68,240
• Parties: STATE of Kansas, Appellee, v. John R. CADY, Appellant.
• Court: Kansas Supreme Court

Page 270

867 P.2d 270

254 Kan. 393

STATE of Kansas, Appellee, v. John R. CADY, Appellant.

No. 68,240.

Supreme Court of Kansas.

Jan. 21, 1994.

Syllabus by the Court

1. The Double Jeopardy Clause of the Constitution of the United States protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.

2. The language of the Fifth Amendment to the United States Constitution guarantees no greater protection to an accused than does § 10 of the Kansas Constitution Bill of Rights. Therefore, the underlying protection contained in the Double Jeopardy Clause of the United States Constitution is contained in § 10 of the Kansas Constitution Bill of Rights.

3. In order to implement and define the constitutional guarantees against double jeopardy, the Kansas Legislature enacted two statutes: (1) K.S.A. 21-3107, multiple prosecutions for the same act, and (2) K.S.A. 21-3108, effect of former prosecution. K.S.A. 21-3107 defines the right of the prosecution to charge more than one offense based on the same act and to convict of an included offense not specifically charged. It formulates the limitations upon unfair multiplicity of convictions and prosecutions. K.S.A. 21-3108 attempts to cover the complex problems of former jeopardy.

4. The constitutional interest protected by Oregon v. Kennedy, 456 U.S. 667, 72 L.Ed.2d 416, 102 S.Ct. 2083 (1982), is that a defendant should be allowed to freely choose whether he or she should request a mistrial and forego the right to have the matter decided by the first trier of fact. Where the prosecutor seeks to force the defendant into the choice, the choice is not freely made, and the prosecution has subverted the defendant's rights protected by the Double Jeopardy Clause of the Constitution.

5. In determining whether an accused's confession is voluntary, a court is to look at the totality of the circumstances. The burden of proving that a confession or admission is admissible is on the prosecution, and the required proof is by a preponderance of the evidence. When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely and voluntarily given, and admits the statement into evidence at the trial, this court accepts that determination if it is supported by substantial competent evidence.

6. An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. Before the appellate court may declare the error harmless, it must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial.

Thomas Jacquinot, Sp. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the briefs for appellant.

Paul J. Morrison, Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellee.

LOCKETT, Judge:

This is a direct appeal of a conviction of murder in the first degree, after the first conviction had been reversed by this court in State v. Cady, 248 Kan. 743, 811 P.2d 1130 (1991) (Cady I ). On appeal, defendant claims that double jeopardy barred retrial and there was not substantial competent evidence to support the finding his confession was made knowingly and voluntarily.

The first trial

Cady, 16 years old at the time of the offense, stabbed and killed his girlfriend. Cady turned himself in, waived his Miranda rights, and made several statements, including a videotaped confession. The videotaped confession was admitted into evidence at his trial. Cady was convicted of first-degree murder and then appealed, claiming: (1) he should have been tried as a juvenile; (2) an instruction on diminished capacity should have been given; and (3) prosecutorial and juror misconduct violated his right to a fair trial. This court found no error on the first two grounds but reversed Cady's conviction due to prosecutorial misconduct.

The prosecutors' misconduct started on the second day of the first trial, during a recess. A police detective, who was assisting the prosecutors, overheard a juror remark, " 'That son-of-a-bitch [Cady] is guilty as hell.' " The detective immediately informed the prosecutors of the remark. One prosecutor stated to the detective such conduct would require a mistrial. The prosecutors, however, took no immediate action.

The next day, after the jury began deliberations, the prosecutors, without the presence of the defendant or his counsel, informed the judge of the juror's statement. The judge allowed the jury to continue deliberations and, without informing the defense of the problem, asked if either party objected to discharge of the alternate jurors. The defense agreed the alternates could be discharged. The jury subsequently found Cady guilty of first-degree murder. After the jury was excused, the judge informed the defense counsel of the juror's remark, but the record was unclear whether the trial judge thought the defense had already been made aware of the problem. Cady moved for a new trial on grounds of juror and prosecutorial misconduct, but his request was denied. On appeal, we found the prosecution had violated Cady's right to a fair trial by failing to inform the defense it knew of possible juror misconduct, and we reversed the conviction.

The second trial

The following evidence was admitted at the second trial: Cady had been dating Melissa Brown. Melissa's parents had told her she had to stop seeing Cady. The day before the homicide, Melissa broke up with Cady. Melissa told a teacher at her high school that Cady had threatened to kill her. Cady's anger at Melissa escalated, and he erupted and ended up being expelled from school. On the day in question, Melissa's stepfather, after arriving home from work, heard Melissa scream. He went to the bedroom. He saw Cady holding his stepdaughter with one hand and holding a knife in the other hand. The stepfather asked what Cady was doing. Cady replied, "This is what I am here for." Cady then stabbed Melissa. The stepfather ran downstairs to get his gun and to call the police.

Cady, covered with blood, ran from the house and went to a nearby residence. He told someone at the residence that he had just killed his girlfriend. Cady used the phone to call a family friend and stated over the phone that he had just killed his girlfriend.

A detective responded to the call. Cady walked up to the detective and said he was the one the police were looking for. He told the detective he had just stabbed his girlfriend. Cady was arrested and advised of his constitutional rights as required by Miranda. Cady stated that he understood his rights. Cady was taken to the police station and again advised of his constitutional rights. After signing a waiver of rights form, he again confessed. This confession was videotaped and admitted into evidence.

At trial Cady testified in his own defense. He stated that after the incident at school, he decided to run away to California with Melissa. He took the knife to protect himself and Melissa if anyone tried to stop them. After Melissa's sister let him in the house, he stayed to wait for Melissa. When he heard Melissa's stepfather come into the house, Cady hid in Melissa's bedroom closet. After Melissa came into the room, Cady opened the closet door. Melissa screamed and began to fight Cady. As Cady attempted to calm Melissa down, she grabbed the knife and it went into her shoulder. Cady stated that Brown's stepfather then came into the room and asked him what he was doing.

Cady testified that at this point he saw Melissa was in great pain and she had a puzzled look. He testified that he knew that his girlfriend could not "comprehend what had just happened," so he continued to stab her in the chest. Cady then stated that he had intended to commit suicide but when he heard the police sirens he left the Browns' house. On cross-examination, Cady admitted that he had killed Melissa by stabbing her several times. Cady knew who he had killed and that what he had done was wrong.

I. DOES DOUBLE JEOPARDY BAR RETRIAL?

The Double Jeopardy Clause of the United States Constitution protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). The language of § 10 of the Kansas Constitution Bill of Rights is very similar to the language contained in the Fifth Amendment to the United States Constitution. Both provide in effect that no person shall be twice placed in jeopardy for the same offense. The language of the Fifth Amendment guarantees no greater protection to an accused than does § 10 of the Kansas Constitution Bill of Rights. Therefore, the underlying protection contained in the Double Jeopardy Clause of thE uniteD statES constitution is contained in § 10 of thE kansaS constitution Bill of Rights.

In order to implement and define the constitutional guarantees against double jeopardy, the Kansas Legislature enacted two statutes: (1) K.S.A. 21-3107, multiple prosecutions for the same act; and (2) K.S.A. 21-3108, effect of former prosecution. K.S.A. 21-3107 defines the right of the prosecution to charge more than one offense based on the same act and to convict of an included offense not specifically charged. It formulates the limitations upon unfair multiplicity of convictions and prosecutions. K.S.A. 21-3108 attempts to cover the complex problems of former jeopardy. State v. Freeman, 236 Kan. 274, 281, 689 P.2d 885 (1984).

Cady acknowledges that reversal of a conviction does not automatically bar...