State v. Carr
| Decision Date | 21 January 2022 |
| Docket Number | 90,198 |
| Citation | 502 P.3d 511 |
| Parties | STATE of Kansas, Appellee, v. Jonathan D. CARR, Appellant. |
| Court | Kansas Supreme Court |
Clayton J. Perkins, of Capital Appellate Defender Office, and Sarah Ellen Johnson, of the same office, argued the cause, and Meryl Carver-Allmond, of the same office, was with them on the briefs for appellant.
David Lowden, special appointed prosecutor, Wichita, KS, argued the cause, and Marc Bennett, district attorney, Wichita, KS, and Derek Schmidt, attorney general, Topeka, KS, were with him on the briefs for appellee.
Alice Craig, of Lawrence, Lawrence, KS, was on the brief for amicus curiae Midwest Innocence Project joined by Witness to Innocence and Floyd Bledsoe.
Sharon Brett, of ACLU Foundation of Kansas, of Overland Park, and Cassandra Stubbs, pro hac vice, and Brian W. Stull, pro hac vice, of American Civil Liberties Union Foundation, of Durham, North Carolina, were on the brief for amici curiae Concerned Conservatives About the Death Penalty, Kansas Coalition Against the Death Penalty, Dalton Glasscock, Steve Becker, Al Terwelp, Bob Weeks, Carolyn Zimmerman, Celeste Dixon, Bill Lucero, Msgr. Stuart Swetland, Catholic Mobilizing Network, Dominican Sisters and Associates of Peace of the Roman Catholic Church, Mount St. Scholastica, Sisters of Charity of Leavenworth Office of Justice, Peace, and Integrity of Creation, Sister Christina Meyer, Bishop Ruben Saenz Jr., Robert Sanders, Michael Birzer, and the American Civil Liberties Union and ACLU of Kansas.
Elizabeth Cateforis, Clinical Professor of Law, University of Kansas School of Law, of Lawrence, and Alexis J. Hoag, Lecturer and Associate Research Scholar, pro hac vice, Columbia Law School, of New York, New York, were on the brief for amici curiae of the group of law professors and scholars.
Rebecca E. Woodman, of Kansas City, Missouri, Topeka, KS, and Jin Hee Lee, pro hac vice, of NAACP Legal Defense and Education Fund, Inc., of New York, New York, and Natasha C. Merle, pro hac vice, and Steven Lance, pro hac vice, of the same office, were on the brief for amici curiae NAACP Legal Defense and Educational Fund, Inc.
We affirm Jonathan D. Carr's death sentence, concluding he is not entitled to relief on the penalty-phase issues before us on remand from the United States Supreme Court. See Kansas v. Carr , 577 U.S. 108, 136 S. Ct. 633, 193 L. Ed. 2d 535 (2016) ( Carr ).
In our previous decision, we affirmed one of J. Carr's capital murder convictions but vacated his death sentence after concluding his Eighth Amendment right to an individualized sentencing determination was violated when the district court refused to sever the trial's penalty phase from that of his codefendant brother, Reginald Carr. See State v. Carr , 300 Kan. 340, 371, 329 P.3d 1195 (2014) ( J. Carr ), rev'd and 577 U.S. 108, 136 S.Ct. 633, 193 L.Ed.2d 535 (2016). In a companion decision, the court also vacated R. Carr's death sentence for failure to sever the penalty phase. State v. Carr , 300 Kan. 1, 315, 331 P.3d 544 (2014) ( R. Carr I ), rev'd and Carr , 577 U.S. 108, 136 S.Ct. 633, 193 L.Ed.2d 535 (2016).
Our disposition made it unnecessary to review all alleged penalty-phase errors, although we considered some for guidance on remand. Among those, we noted the same Eighth Amendment individualized sentencing concerns were implicated when the district court failed to instruct the jury that mitigating circumstances need not be proved beyond a reasonable doubt. That same instructional issue proved dispositive in the court's decision to vacate the death sentence in another death penalty case. See State v. Gleason , 299 Kan. 1127, 329 P.3d 1102 (2014) ( Gleason I ), rev'd and Carr , 577 U.S. 108, 136 S.Ct. 633, 193 L.Ed.2d 535 (2016).
The United States Supreme Court granted the State's petition for writ of certiorari on those two Eighth Amendment issues in the R. Carr I , J. Carr , and Gleason I cases. It disagreed with our Eighth Amendment analysis on both issues, holding that the joint penalty-phase trial did not violate the Carrs' Eighth Amendment rights, and that the Eighth Amendment to the United States Constitution does not require district court judges to instruct Kansas penalty-phase juries that mitigating factors need not be proved beyond a reasonable doubt. Carr , 577 U.S. at 122, 126, 136 S.Ct. 633.
Shortly after that decision but before the United States Supreme Court issued its mandate, R. Carr filed a motion with our court arguing that the alleged instructional error (the district court's failure to instruct jurors that the existence of mitigating factors need not be proved beyond a reasonable doubt) required his death sentence to be vacated under state law. In his separate appeal, J. Carr also requested this court rule on the instructional issue as a matter of state law. On the same day, he asked for additional briefing on issues left undecided in our earlier decision. The State filed responses.
We ordered supplemental briefing addressing the remaining issues, including cumulative error. At the State's request, two extensions occurred and were granted pursuant to Supreme Court Rule 5.02 (2021 Kan. S. Ct. R. 32). The parties simultaneously filed their supplemental briefs on November 7, 2016. We heard oral argument in both cases on May 4, 2017.
In April 2019, this court filed its opinion in Hodes & Nauser, MDs v. Schmidt , 309 Kan. 610, 638, 440 P.3d 461 (2019), holding " section 1 [of the Kansas Constitution Bill of Rights] establishes the judicial enforceability of rights that are broader than and distinct from the rights described in the Fourteenth Amendment." In response to that legal development, the defendants in all the then-pending capital appeals sought leave to raise and brief a new issue challenging the constitutionality of the death penalty under section 1 of the Kansas Constitution Bill of Rights. R. Carr and J. Carr each made this request in motions filed on May 7, 2019.
On June 19, 2019, after having received responses from the State, we granted the defendants, including R. Carr and J. Carr, leave to file supplemental briefing to address "what effect, if any, the decision in Hodes & Nauser v. Schmidt ... has on the issue of whether the Kansas death penalty is unconstitutional under § 1 of the Kansas Constitution Bill of Rights."
R. Carr and J. Carr each filed a supplemental brief on August 16, 2019. In each case, the State filed its brief on October 15, 2019. J. Carr filed a reply brief on November 7, 2019, and R. Carr followed suit the next day.
On February 18, 2021, we again scheduled both R. Carr's and J. Carr's cases for oral argument. Various amici curiae sought and were granted permission to file briefs.
In addition, the NAACP Legal Defense and Educational Fund Inc. (LDF) sought leave to participate in J. Carr's oral argument as a separately represented amicus curiae. The LDF argued that Kansas' death-sentencing scheme violates the "inviolate" right to trial by jury under section 5 of the Kansas Constitution Bill of Rights. We denied the LDF's motion to participate in oral argument but ordered the parties in J. Carr's case to be prepared to address the issue at oral argument.
As with our previous decisions, this case necessarily covers many issues we addressed in State v. Carr , 314 Kan. ––––, ––– P.3d ––––, 2022 WL 187437 () ( R. Carr II ), released today. We pause briefly to explain the variance between our opinion in R. Carr II and here. As noted, many of the same issues were raised by both defendants. And where only one defendant raised an issue, but the challenge could apply equally to both defendants, we have generally noticed the issue as unassigned error for the other pursuant to K.S.A. 2020 Supp. 21-6619(b). Where the issues are substantially similar, we have set forth the reasoning supporting our holdings in R. Carr II and summarize that reasoning here as applicable.
However, not all the issues raised by R. Carr and J. Carr are identical. R. Carr raised two issues unique to his appeal—one challenging evidence he claims was improperly admitted against him and the other involving the exclusion of evidence he sought to have admitted. We provide no further rulings on the merits of those issues here. Similarly, J. Carr raises several claims unique to his case that are addressed only in this opinion, including additional claims of prosecutorial error and two claims of error related to the district court's denial of his motions for mistrial.
To the extent possible, we retain the issue numbering applied in our previous decision, although some are discussed in a different order. See J. Carr , 300 Kan. at 368-71, 329 P.3d 1195. The facts were set forth fully in this court's original decision. R. Carr I , 300 Kan. at 17-44, 258-75, 331 P.3d 544. In the "Discussion" section to follow, we highlight certain facts necessary to resolve the issues we consider today.
For purposes of clarity and organization, we first address the constitutional challenges R. Carr and J. Carr raised under the Kansas Constitution Bill of Rights. Then, we address J. Carr's motion to apply state law to the burden of proof instruction for mitigating circumstances. Finally, we examine the remaining claims of penalty-phase error, including cumulative error.
Both R. Carr and J. Carr, relying on Hodes , claim section 1 establishes an absolute, nonforfeitable right to life, and Kansas' capital sentencing scheme unconstitutionally infringes upon this right.
After careful examination of the historical record and the documents and writings that inspired the drafters of the Kansas Constitution, we concluded in R. Carr II that section 1 recognizes an "inalienable" right to life, meaning it...
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