State v. Gleason

• Decision Date: 18 July 2014
• Docket Number: No. 97,296.,97,296.
• Parties: STATE of Kansas, Appellee, v. Sidney J. GLEASON, Appellant.
• Court: Kansas Supreme Court

299 Kan. 1127
329 P.3d 1102

STATE of Kansas, Appellee,
v.
Sidney J. GLEASON, Appellant.

No. 97,296.

Supreme Court of Kansas.

July 18, 2014.

[329 P.3d 1110]

Syllabus by the Court

1. A defendant may be convicted of intentional, premeditated murder under a theory of aiding and abetting as long as the State proves the defendant shared the principal actor's premeditated intent to murder the victim, knowingly associated with the unlawful venture, and participated in such a way as to indicate he or she was facilitating the success of the venture.

2. The State may rely on the theory of aiding and abetting to support one or more of the intentional, premeditated murders necessary to support a capital murder charge under K.S.A. 21–3439(a)(6) for the killing of multiple victims.

3. An appellate court reviews guilt-phase jury instruction errors raised for the first time on appeal for clear error, even in capital cases.

4. In considering whether a jury instruction is clearly erroneous, an appellate court first determines whether the instruction was erroneous. If error is found, the appellate court then reviews the entire record de novo to determine whether reversal is required. Reversal is required only if the appellate court is firmly convinced the jury would have reached a different verdict absent the instruction error.

5. PIK Crim.3d 54.05 accurately expresses the law on aiding and abetting set forth in K.S.A. 21–3205(1).

6. When a district court refuses to give a requested jury instruction, an appellate court applies an unlimited review to determine whether the instruction would have been legally appropriate. If so, the appellate court next considers whether the evidence, when viewed in the light most favorable to the requesting party, was sufficient to support the instruction. Finally, if the district court erroneously refused to give the instruction, the appellate court determines whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied ––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012).

7. K.S.A. 22–3414(3) states that a trial court must give a lesser included offense instruction when there is some evidence which would reasonably justify a conviction of some lesser included crime as defined in K.S.A. 21–3107(2).

8. As stated in K.S.A. 2013 Supp. 21–5402(d), the statutory provisions defining lesser included offenses do not apply to the offense of felony murder, and felony murder is not a lesser included offense of capital murder.

[329 P.3d 1111]

9. Retroactive application of K.S.A. 2013 Supp. 21–5402(d)'s amendments excluding felony murder as a lesser included offense of capital murder in a capital case does not violate a capital defendant's due process rights as interpreted in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980).

10. Retroactive application of K.S.A. 2013 Supp. 21–5402(d)'s amendments excluding felony murder as a lesser included offense of capital murder in a capital case does not violate the constitutional prohibition against ex post facto laws.

11. To protect a defendant's constitutional confrontation rights, testimonial hearsay is inadmissible unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant.

12. Under K.S.A. 60–459(g), witness unavailability includes, but is not limited to, situations where the witness is (1) exempted on the ground of privilege from testifying concerning the matter to which his or her statement is relevant, (2) disqualified from testifying to the matter, (3) unable to be present or to testify at the hearing because of death or then existing physical or mental illness, (4) absent beyond the jurisdiction of the court to compel appearance by its process, or (5) absent from the place of hearing because the proponent of his or her statement does not know and with diligence has been unable to ascertain his or her whereabouts.

13. A witness' refusal to testify may constitute grounds for declaring the witness unavailable.

14. Under the federal constitutional standard as applied to the states, the test of unavailability, for the purposes of the exception to the confrontation requirement, is whether the prosecutorial authorities have made a good-faith effort to obtain the witness' presence at trial or to obtain the live testimony of a witness who appears but refuses to testify.

15. Whether a prosecutor has made sufficient effort to secure the testimony of an unavailable witness is a question of reasonableness.

16. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), requires an opportunity for cross-examination before hearsay can be admitted but provides no guidance for how much cross-examination is required to afford the defendant an adequate opportunity to confront the witnesses against him or her.

17. When considering a claim of prosecutorial misconduct, an appellate court must determine whether the prosecutor's statements exceeded the wide latitude of language and manner afforded a prosecutor in making closing arguments. If the statements were improper, the appellate court must then determine whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial.

18. It is improper for a prosecutor to misstate the law or to offer his or her personal opinion regarding the credibility of a witness.

19. A trial court commits error by giving an Allen-type jury instruction that includes the phrase “another trial would be a burden on both sides.”

20. A trial court almost always abuses its discretion when it allows a defendant, witness, or nonwitness to be brought before a jury in jail clothing without articulating the justification for doing so and without considering an admonition or instruction to the jury prohibiting its consideration of the person's clothing or apparent incarceration.

21. K.S.A. 22–3420(3) requires any question from the jury concerning the law or evidence pertaining to the case to be answered in open court in the defendant's presence unless the defendant is voluntarily absent.

22. A trial court's failure to comply with the statutory procedure set out in K.S.A. 22–3420(3) constitutes both a violation of a criminal defendant's statutory right to be present under K.S.A. 22–3405(1) and the constitutional right to be present under the Sixth Amendment to the United States Constitution.

23. Under the federal constitutional harmless error standard, reversal is required unless an appellate court can conclude beyond

[329 P.3d 1112]

a reasonable doubt that the error did not affect the outcome of the trial in light of the entire record, i.e., that there is no reasonable possibility the error contributed to the verdict.

24. In analyzing whether a trial court's failure to follow the statutory procedure in K.S.A. 22–3420(3) was harmless error, an appellate court considers: (1) the strength of the prosecution's case; (2) whether the defendant lodged an objection; (3) whether the communication concerned some critical aspect of the trial or was instead an innocuous and insignificant matter, as well as the manner in which the communication was conveyed to the jury; and (4) the ability of a posttrial remedy to mitigate the constitutional error.

25. In a cumulative error analysis, an appellate court aggregates all errors and, even though those errors would individually be considered harmless, analyzes whether their cumulative effect on the outcome of the trial is such that collectively they cannot be determined to be harmless.

26. In assessing whether cumulative errors are harmless, an appellate court examines the record as a whole and considers how the trial court dealt with the errors as they arose, including the efficacy, or lack of efficacy, of any remedial efforts; the nature and number of errors committed and their interrelationship, if any; and the strength of the evidence.

27. When two convictions arise out of a double homicide, one for capital murder as defined in K.S.A. 21–3439(a)(6) and one for the first-degree, premeditated murder of one of the capital murder victims, the convictions are multiplicitous and one conviction must be reversed.

28. A sentencing court lacks authority to order any term of postrelease supervision when a defendant receives an off-grid indeterminate life sentence.

29. In Kansas, the death penalty may be imposed only if the jury unanimously finds beyond a reasonable doubt that (1) the aggravating circumstances alleged by the State exist and (2) the existence of such aggravating circumstances is not outweighed by any mitigating circumstances found to exist.

30. In a capital murder trial, the use of the same factor as both a narrowing qualification for the death penalty at the guilt phase and an aggravating factor at the penalty phase is constitutionally permissible and conforms to legislative intent.

31. In the penalty phase of a capital murder trial, aggravating circumstances are unconstitutionally duplicative only when one circumstance necessarily subsumes the other.

32. Under the facts of this case, the aggravating circumstances that the defendant (1) committed the crime in order to avoid or prevent a lawful arrest or prosecution and (2) killed one victim because she was a prospective witness against the defendant are not unconstitutionally duplicative.

33. In the penalty phase of a capital murder trial, the standard of review on appeal as to the sufficiency of the evidence regarding an aggravating circumstance is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the existence of the aggravating circumstance beyond a reasonable doubt.

34. In considering a claim that a jury instruction in the penalty phase of a capital murder trial prevented the jury from giving proper consideration to mitigating...