State v. Cheever

• Decision Date: 24 August 2012
• Docket Number: No. 99,988.,99,988.
• Citation: 284 P.3d 1007
• Parties: STATE of Kansas, Appellee, v. Scott D. CHEEVER, Appellant.
• Court: Kansas Supreme Court

284 P.3d 1007

STATE of Kansas, Appellee,

v.Scott D. CHEEVER, Appellant.

No. 99,988.

Supreme Court of Kansas.

Aug. 24, 2012.

Syllabus by the Court

1. Under K.S.A. 21–4627, in death penalty appeals, the Supreme Court of Kansas must consider any errors asserted in the review and appeal regardless of whether the issue was preserved below. This provision creates a mandatory exception to the various statutes and rules barring consideration of unpreserved issues and supersedes the contemporaneous objection rule of K.S.A. 60–404.

2. Unassigned errors in a death penalty appeal under K.S.A. 21–4627 are errors that have not been raised by the parties, but are noticed by the court on its own during its review of the record. Review of unassigned errors under K.S.A. 21–4627 is permissive and subject to conditions: The error must be apparent from the record and addressing it serves the ends of justice.

3. A claim that admission of evidence violated a constitutional right is reviewed de novo.

4. The prosecution's use of a court-ordered mental examination of a defendant to establish an element necessary for conviction or punishment implicates the United States Constitution's Fifth Amendment privilege against compelled self-incrimination when the defendant neither initiated the examination nor introduced a mental-state defense at trial.

5. When a defendant files a notice of intent to assert a mental disease or defect defense under K.S.A. 22–3219, the Fifth Amendment privilege against compelled self-incrimination does not prevent the court from ordering the defendant to submit to a mental examination. The filing of such a notice constitutes consent to a court-ordered mental examination by an expert for the State. Consent to the examination, however, does not waive the defendant's Fifth Amendment privilege so as to entitle the State to use the examination against the defendant at trial. Waiver does not occur unless or until the defendant presents evidence at trial that he or she lacked the requisite criminal intent due to a mental disease or defect. If that occurs, the State may use the examination for the limited purpose of rebutting the defendant's mental disease or defect defense.

6. Evidence that voluntary intoxication caused defendant's temporary mental incapacity at the time of the crime is not evidence of a mental disease or defect.

7. Evidence of defendant's permanent mental incapacity due to long-term use of intoxicants may support a mental disease or defect defense.

8. An error that violates a criminal defendant's constitutional rights requires reversal unless the party who benefitted from the error proves beyond a reasonable doubt that the error complained of did not affect the outcome of the trial in light of the entire record, i.e., proves there is no reasonable possibility that the error affected the verdict. The question is not whether the legally admitted evidence was sufficient to support the verdict, but, rather, whether the State has proved beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.

9. The generic crime of homicide, of which murder is the highest and most criminal species, is of various degrees, and encompasses every mode by which the life of one person is taken by the act of another.

10. Capital murder is first-degree murder, with one or more specific elements beyondthose required to prove premeditated murder. It follows that capital murder is the highest degree of homicide in Kansas.

11. With capital murder as the highest degree of homicide in Kansas, first-degree murder is a lesser degree of capital murder under K.S.A. 21–3107(2)(a) and is therefore a lesser included crime of capital murder. Because first-degree murder encompasses the two alternative means of premeditated murder and felony murder, felony murder is a lesser included crime of capital murder.

12. Remarks by a prosecutor or trial judge that lead a capital sentencing jury to believe that responsibility for determining the appropriateness of a death sentence ultimately rests with the appellate courts undermines the demand of the Eighth Amendment to the United States Constitution for heightened reliability in the jury's determination that death is the appropriate sentence in a specific case.

13. When a trial judge tells jurors, even prospective jurors, that the exhibits and transcripts of the proceedings will be reviewed by an appellate court in deciding issues raised in the event of an appeal, error has occurred.

14. The Eighth and Fourteenth Amendments to the United States Constitution forbid the imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed. A capital defendant's age of 18 years or older at the time of the offense is an eligibility requirement for the death penalty.

15. Because a death sentence cannot be imposed in Kansas based solely on the fact of conviction for capital murder under K.S.A. 21–4624, the Sixth Amendment to the United States Constitution demands that any additional fact necessary for imposition of the death penalty must be found by a jury beyond a reasonable doubt. This includes the fact that a defendant was 18 years old or older at the time of the capital crime.

16. The Eighth Amendment requires two things of a death sentence: (1) The sentencer must not have unbridled discretion in determining the fate of the defendant, and (2) the defendant must be allowed to introduce any relevant mitigating evidence of his or her character or record or circumstances of the offense. A mercy instruction per se is not required as part of this equation by federal or state law, nor is a specific type of mercy instruction.

17. Kansas law does not require that jurors in a death penalty case be instructed that they have the power to exercise mercy after weighing aggravators and mitigators.

18. To satisfy the Eighth Amendment's concern for reliability in the determination that death is the appropriate sentence in a specific case, a capital sentencing jury must not be precluded from considering and giving effect to relevant mitigating evidence. It is not relevant under the Eighth Amendment whether the barrier to the sentencer's consideration of all mitigating evidence is interposed by statute, by an evidentiary ruling, by jury instructions, or by prosecutorial argument.

19. The Eighth Amendment is violated only where the jury is prevented, as a matter of law, from considering mitigating evidence. The Eighth Amendment does not prohibit a capital sentencing jury from assessing the weight of mitigating evidence and finding it wanting as a matter of fact; thus, it is constitutionally permissible for a prosecutor to argue that, based on the circumstances of the case, the defendant's mitigating evidence is entitled to little or no weight.

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

Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Clay Britton, assistant attorney general, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by PER CURIAM:

A jury convicted Scott D. Cheever of capital murder for the killing of Greenwood County Sheriff Matthew Samuels (K.S.A. 21–3439[a][5] ), four counts of attempted capital murder of law enforcement officers Robert Keener, Travis Stoppel, Mike Mullins, and Tom Harm (K.S.A. 21–3439[a][5]; K.S.A. 21–3301[a] ), criminal possession of a firearm based on a previous felony conviction for aggravated robbery (K.S.A. 21–4204[a][3] ), and manufacture of methamphetamine (K.S.A. 65–4159[a] ). Cheever was sentenced to death on the capital offense. In addition, he was given a controlling sentence of 737 months for the attempted capital murder convictions, which included concurrent sentences of 146 months for the manufacturing conviction and 8 months for the firearm conviction. Cheever filed a timely appeal of his convictions and sentences. We have jurisdiction under K.S.A. 21–4627(a) (“A judgment of conviction resulting in a sentence of death shall be subject to automatic review by and appeal to the supreme court of Kansas.”).

We conclude that allowing the State's psychiatric expert, Dr. Michael Welner, to testify based on his court-ordered mental examination of Cheever, when Cheever had not waived his privilege under the Fifth Amendment to the United States Constitution in that examination by presenting a mental disease or defect defense at trial, violated Cheever's privilege against compulsory self-incrimination secured by the Fifth and Fourteenth Amendments to the United States Constitution. Because we are unable to conclude beyond a reasonable doubt that Welner's testimony did not contribute to the capital murder and attempted capital murder verdicts obtained in this case, this constitutional error cannot be declared harmless. Consequently, Cheever's convictions for capital murder and attempted capital murder must be reversed and remanded for a new trial.

Cheever did not challenge his convictions and sentences for manufacture of methamphetamine and criminal possession of a firearm. We affirm those convictions and sentences.

Facts and Procedural Background

On January 19, 2005, Scott D. Cheever shot and killed Greenwood County Sheriff Matthew Samuels at Darrell and Belinda Coopers' residence near Hilltop, Kansas. Samuels, acting on a tip, had gone to the Coopers' residence, along with Deputy Michael Mullins and Detective Tom Harm, to attempt to serve an outstanding warrant for Cheever's arrest. Cheever, along with the Coopers, Matt Denney, and Billy Gene Nowell, had been cooking and ingesting methamphetamine in the early morning hours prior to Samuels' arrival. In the ensuing attempts to remove the wounded Samuels from the residence and arrest...