State v. Cheever

Citation402 P.3d 1126
Decision Date22 July 2016
Docket NumberNo. 99,988.,99,988.
Parties STATE of Kansas, Appellee, v. Scott D. CHEEVER, Appellant.
CourtUnited States State Supreme Court of Kansas

402 P.3d 1126

STATE of Kansas, Appellee,
v.
Scott D. CHEEVER, Appellant.

No. 99,988.

Supreme Court of Kansas.

Opinion on remand filed July 22, 2016
Modified opinion on remand filed July 20, 2017


402 P.3d 1133

Debra J. Wilson, of Capital Appeals and Conflicts Office, argued the cause, and Reid T. Nelson, of the same office, was with her on the briefs for appellant.

Stephen R. McAllister, solicitor general, argued the cause, and Kristafer R. Ailslieger, deputy solicitor general, Clay Britton, assistant solicitor general, Steve Six, former attorney general, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

Stephen Douglas Bonney, of ACLU Foundation of Kansas, of Kansas City, Missouri, and Catherine M.A. Carroll and Albinas J. Prizgintas, of Wilmer Cutler Pickering Hale and Dorr LLP, of Washington, D.C., were on the brief for amici curiae American Civil Liberties Union and ACLU Foundation of Kansas.

MODIFIED OPINION 1

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

This case comes before us after the United States Supreme Court vacated our decision in State v. Cheever , 295 Kan. 229, 284 P.3d 1007 (2012), vacated and remanded 571 U.S. ––––, 134 S.Ct. 596, 187 L.Ed.2d 519 (2013), and remanded for further proceedings.

In our decision, we had held that defendant Scott D. Cheever did not waive his privilege against self-incrimination under the Fifth Amendment to the United States Constitution by presenting a voluntary intoxication defense to the capital murder charges against him. 295 Kan. at 251, 284 P.3d 1007. The United States Supreme Court disagreed and held that the rebuttal testimony presented by the State in the form of the expert opinion of Dr. Michael Welner was admissible. Kansas v. Cheever , 571 U.S. ––––, 134 S.Ct. 596, 602, 187 L.Ed.2d 519 (2013). As the Court noted, because we had ruled that Welner should not have been allowed to testify at all, we did not consider whether the testimony he gave exceeded the scope of rebuttal allowed by the Fifth Amendment or by Kansas evidentiary rules; and the Court did not address the issue. 134 S.Ct. at 603.

On remand, we asked the parties to address the scope-of-rebuttal issue. Briefs were received and arguments heard. After consideration, we hold that Welner's testimony, while questionable in form, did not, in substance, exceed the proper scope of rebuttal, either constitutionally or under state evidentiary rules. We further hold that none of the remaining issues raised on appeal require reversal or remand, and, accordingly, we affirm Cheever's convictions and sentences.

The facts of this case were set out at length in our earlier decision, Cheever , 295 Kan. at 235–40, 284 P.3d 1007, and we therefore add facts only as necessary to our analysis of the issues.

Appellate proceedings in this case followed Cheever's conviction of one count of capital murder for the killing of Greenwood County Sheriff Matthew Samuels and four counts of attempted capital murder for firing at other law enforcement officers. Direct appeal to this court was automatic because the jury had sentenced Cheever to death on the capital offense. See K.S.A. 21-4627(a).

GUILT PHASE

Proper Rebuttal Testimony

Cheever's objections to the content of Welner's testimony revolve primarily around Welner's statement that Cheever emulated an outlaw lifestyle and his alleged implication that Cheever had an antisocial personality disorder. Taking as our standard both the guidance set out in the United States Supreme Court's decision and our own oft-stated rubric for reviewing challenges regarding the appropriate scope of rebuttal, see, e.g. , State v. Sitlington , 291 Kan. 458, 464, 241 P.3d 1003 (2010) (trial judge has broad discretion in determining use, extent of relevant evidence in rebuttal), we hold that the trial judge's admission of Welner's testimony was within the broad discretion granted him.

402 P.3d 1134

First, and significantly, our measure of the appropriate scope of rebuttal in this case must take into account not just the testimony presented by Cheever's expert on the topic of his methamphetamine intoxication, but also Cheever's own testimony concerning his past use of the drug and the events leading to and constituting the crimes. Much of Welner's testimony concerning details of the crimes, and Cheever's actions constituting them, was responsive to Cheever's own testimony. Having taken the stand, Cheever opened himself to rebuttal testimony just as he opened himself to cross-examination concerning both the substance of his testimony and his credibility as a witness. Cheever , 134 S.Ct. at 601.

But concluding that Welner's testimony was responsive in and of itself does not insulate the testimony from appellate scrutiny if the testimony was otherwise inadmissible. Cf . State v. Everett , 296 Kan. 1039, 1045, 297 P.3d 292 (2013) (evidence admitted in rebuttal to other evidence under an " ‘open the door’ " rule is not an exception permitting evidence of other crimes or civil wrongs to be admitted independent of K.S.A. 60-455 ); State v. Cosby , 285 Kan. 230, 248–49, 169 P.3d 1128 (2007) ( K.S.A. 60-447 [b] applies to rebuttal evidence). Generally, a defendant does not put his or her character "truly in issue" simply by asserting an intoxication defense. State v. Bowers , 218 Kan. 736, 737, 545 P.2d 303 (1976) ; cf . State v. Mader , 261 Kan. 280, 283, 931 P.2d 1247 (1997) (when defendant relies upon self-defense, his or her attempt to prove victim was aggressor does not, standing alone, place character of victim in issue). And K.S.A. 60-447(b)(ii) provides that "evidence of a trait of an accused's character [,] ... if offered by the prosecution to prove guilt, may be admitted only after the accused has introduced evidence of his or her good character ." (Emphasis added.)

Characterizing portions of Welner's testimony as bad character evidence, Cheever argues that the testimony was inadmissible under K.S.A. 60-447(b)(ii) because he never introduced any evidence of his good character. The State appears to concede that Cheever did not introduce evidence of his good character, but it responds that Cheever "opened the door" to the complained-of testimony. The State asserts that Cheever and his expert both testified on the same or similar points addressed by Welner.

We believe the State was too hasty in conceding that Cheever did not introduce evidence of his good character. If he did so, the State's defense of this point with its open-the-door argument is unnecessary. In our view, Cheever downplays his own direct testimony unconvincingly. During direct, Cheever discussed two letters that he wrote shortly after the shooting death of Samuels. In the letters, which the State admitted without objection during its case-in-chief and to which Cheever continues to have no objection on appeal, Cheever wrote to two individuals—Nathan Fife and Crystal Mackey. The bulk of each letter is braggadocio, in which Cheever tells a glorified version of the circumstances surrounding the shooting and his arrest. The letters include multiple damning admissions. He admits that he intentionally waited hours for "the cops" to arrive and that he "blew [Samuels] back down the stairs" with a .44 Magnum pistol. In the course of these recitations, Cheever makes fleeting reference to being an "outlaw until they bury me" and to his willingness to "do it again in a heartbeat."

In Cheever's letter to Fife, he bragged:

"What's up my boy? Yeah I fucked up big time! It was fucking intense though. I'd do it again in a heartbeat. ... I had a Super Blackhawk [.]44 mag and a [.]22 competition target pistol! ... They shot 4 teargas things in there and that wasn't shit so they came piling in. I blew the first one back down the stairs, and the second one but that was all the [.]44 shells I had left on me .... I'm pretty much fucked! Fuck 'em, I'm still an outlaw until they bury me.

"... Slates out there being a straight bitch. I was going to burn him [and] Carol out of Virgil but I had to shoot the sheriff instead!"

To Mackey, Cheever wrote:

"Anyways, [Billy] tried to get a front and call the cops (or get the cops called) thinking I'd just roll over and take it. I seen that shit coming for 5 hrs!!! But I said
402 P.3d 1135
fuck it ... gonna have to shoot me. Pussies couldn't aim too good though so here I am! Stuck like Chuck! Damn it was intense Mackey. ...

"... And they wonder why a fucking young crankster gangster tends to snap every once in a while."

The State authenticated the letters through Fife and Mackey and introduced the letters without further embellishment.

Once Cheever was on the stand, during his direct examination, the following exchange occurred between him and his lawyer:

"[Defense counsel]: This letter to Fife, Scott, it's a horrible letter.

"[Cheever]: Yeah.

"[Defense counsel]: You see that now?

"[Cheever]: Yeah. (Nods head.)

"[Defense counsel]: The person that wrote this letter I think could be accurately termed a monster.

"[Cheever]: Yeah.

"[Defense counsel]: Would you disagree with that?

"[Cheever]: I seen it then, too. I mean, I was even told by my attorneys at that time, I think even you told me back then, ‘Don't be writing no letters, don't
...

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