State v. Kleypas, 90,650.

• Decision Date: 08 December 2006
• Docket Number: No. 90,650.,90,650.
• Citation: 147 P.3d 1058
• Parties: STATE of Kansas, Appellant, v. Gary W. KLEYPAS, Appellee.
• Court: Kansas Supreme Court

Page 1058

147 P.3d 1058

STATE of Kansas, Appellant, v. Gary W. KLEYPAS, Appellee.

No. 90,650.

Supreme Court of Kansas.

December 8, 2006.

COPYRIGHT MATERIAL OMITTED

John K. Bork, assistant attorney general, argued the cause, and Autumn L. Fox, assistant attorney general, and Phill Kline, attorney general, were with him on the briefs for appellant.

Jessica R. Kunen, of Lawrence, argued the cause, and Richard Ney, of Wichita, and Sean O'Brien, of Kansas City, Missouri, were with her on the briefs for appellee.

The opinion of the court was delivered by PER CURIAM:

The question we must resolve in the State's interlocutory appeal is whether evidence of stalking is admissible and relevant in the death penalty phase of a capital murder case to establish the statutory aggravating factor that the killing was done in a heinous, atrocious, or cruel manner. We answer the question yes, reverse the district court decision to the contrary, and remand for further proceedings concerning relevancy.

FACTUAL BACKGROUND

Defendant Gary W. Kleypas was convicted of, inter alia, capital murder in the death of C.W. and sentenced to death. In State v. Kleypas, 272 Kan. 894, 40 P.3d 139 (2001), cert. denied 537 U.S. 834, 123 S.Ct. 144, 154 L.Ed.2d 53 (2002), this court overturned Kleypas' death sentence and remanded to the district court for a new penalty phase hearing.

On March 4, 2003, Kleypas filed a motion in limine seeking to bar the testimony of many of the State's intended witnesses on the grounds of relevance. In his motion, Kleypas alleged that the majority of the witnesses would not provide information relevant to any of the aggravating circumstances. The State had identified three aggravating factors it intended to prove at the penalty phase hearing: (1) Kleypas was previously convicted of a felony in which he inflicted great bodily harm, disfigurement, dismemberment, or death on another; (2) Kleypas committed the present crime in order to avoid or prevent a lawful arrest or prosecution; and (3) Kleypas committed the crime in an especially heinous, atrocious, or cruel manner. See K.S.A. 21-4625(1), (5), and (6). In response to Kleypas' motion, the State alleged that much of the testimony of the witnesses would go toward proving the crime was committed in an especially heinous, atrocious, or cruel manner, in that it showed Kleypas' stalking of the victim, which inflicted severe mental anguish on her.

A hearing on the motion in limine was held on April 7, 2003. Kleypas contended that evidence of stalking was irrelevant to prove that the murder was committed in an especially heinous, atrocious, or cruel manner. According to Kleypas, the legislature had specifically amended the language regarding the "heinous, atrocious or cruel" aggravating factor with regard to the hard 50 sentencing procedure to add that stalking was sufficient to satisfy that aggravator, but it had failed to make a similar change to the death penalty statutes, thus evidencing an intent that stalking would not be relevant to that aggravator in a death penalty proceeding. The State acknowledged that the amendment to the hard 50 procedure did not apply in death penalty cases, and that stalking could not in and of itself be sufficient to show that the murder was committed in an especially heinous, atrocious, or cruel manner. However, the State argued that the evidence of stalking was still relevant in making a determination of whether the killing was done in a heinous, atrocious, or cruel manner in a death penalty case.

The district judge ruled as a matter of law that stalking is not relevant to the heinous, atrocious, or cruel aggravating factor in death penalty proceedings:

"The aggravating factors in death penalty cases as we know are listed in K.S.A. 21-462[5]. The aggravating factors in nondeath penalty cases are listed in 21-4636. Aggravating factor F in 21-4636 indicates that in determining whether a victim died in a heinous, atrocious and cruel manner, stalking of the victim is one of the things that can be considered in [determining] whether to assess the Hard 50. This language is not included in 21-462[5] and that is, frankly, problematic to the Court. If you look at K.S.A. 21-4636 it was amended in 1999 to include that additional language. That additional language was not in the original legislation which was passed in 1994, the same time the death penalty aggravating factors were enacted. This seems to speak to legislative intent.

"Why amend [21-]4636[in] non-death penalty cases and not also amend [21-]462[5] in death penalty cases? And it speaks to legislative intent and that becomes problematic, frankly, to the State's position. I think heinous, atrocious and cruel speaks to the actual manner that death was inflicted for purposes of death penalty cases. I can't begin to presume why the legislature modified 4636 and did not similarly address 462[5] but that is, in fact, the case. That is, in fact, exactly what they did and we know that when that happens the Appellate Courts will indicate that speaks to legislative intent which tells us that that should not be included in death penalty litigation.

"And, again, mitigating factors are limited to what is included in 4626. I said 4626, I think I mean 4625, yeah, 4625 [for aggravating factors]. The Court is going to find that stalking will not be submitted to the sentencing jury for the following-by reason of the Court's aforementioned reasons. I think the failure to include the stalking language in 4625 speaks to legislative intent. Legislature does not want that information submitted to the jury. I also find that heinous, atrocious and cruel will be directed to the manner in which death was inflicted."

Before addressing the merits of this appeal, we consider Kleypas' argument on jurisdiction. He contends that the plain language of K.S.A. 22-3603 does not allow an interlocutory appeal in this instance, as the statute speaks to orders issued "prior to the commencement of trial of a criminal action," while the instant proceeding is technically a retrial of the penalty phase of a criminal action. K.S.A. 22-3603 authorizes an interlocutory appeal by the State "[w]hen a judge of the district court, prior to the commencement of trial of a criminal action, makes an order quashing a warrant or a search warrant, suppressing evidence or suppressing a confession or admission."

It is true that the language of K.S.A. 22-3603 speaks of appealing orders issued prior to the commencement of a trial. Furthermore, Kleypas is correct in noting that as a general rule, a criminal statute should be strictly construed in favor of the accused. State v. Jenkins, 272 Kan. 1366, 1381, 39 P.3d 47 (2002). However, this strict construction simply means that words are given their ordinary meaning, with any reasonable doubt decided in favor of the accused. 272 Kan. at 1381, 39 P.3d 47.

K.S.A. 22-3603 was last modified in 1975 (L.1975, ch. 178, sec. 23; effective January 10, 1977). At that time, there was no provision for a separate jury sentencing in criminal cases. Had there been, it seems clear that the language of the statute would have encompassed orders issued prior to the trial or retrial of a penalty phase in a capital murder case in the same manner that it applies to orders issued prior to a trial or retrial of the guilt phase in a regular criminal case. There is no reasonable doubt as to the intention of the legislature and, as a result, K.S.A. 22-3603 applies to this appeal.

Kleypas next argues that an order excluding evidence on the basis of relevance is not a proper subject for interlocutory appeal. He contends that such appeals are not favored, both because they do not relate to evidence seized in violation of a constitutional right and because the district court's ruling on a motion in limine is not a final ruling, but is subject to change at trial.

While Kansas courts initially interpreted the term "suppressing evidence" in K.S.A. 22-3603 to mean the constitutional suppression of evidence illegally obtained by the government, and did not allow appeals from other decisions, this court adopted a more expansive definition that included other rulings of the trial court which "substantially impair" the State's ability to prosecute a case. State v. Griffin, 246 Kan. 320, 323, 787 P.2d 701 (1990). Even though Kleypas argues that an appeal from a motion in limine excluding allegedly relevant evidence is not a proper subject, this court addressed such an appeal under K.S.A. 22-3603 in Griffin. See 246 Kan. at 324, 787 P.2d 701.

It is true that a ruling excluding evidence for lack of relevance may be subject to change at trial. However, because the district court's ruling in this case was made as a matter of law, that is, that stalking is never relevant to the heinous, atrocious, or cruel aggravating factor in a death penalty case, there is little potential that the district court's ruling will change. Therefore, if the district court's ruling is truly one which substantially impairs the State's ability to prosecute its case, this case is a proper one for interlocutory appeal under K.S.A. 22-3603. See Griffin, 246 Kan. at 324-26, 787 P.2d 701.

Kleypas argues that the exclusion of the evidence in this case does not substantially impair the State's ability to prosecute its case. However, the State's theory was that Kleypas' stalking of the victim, as evidenced by his purchasing the shoes from her, his obscene telephone calls to her, and other actions such as breaking into her apartment and stealing a camera, constituted the infliction of serious mental anguish upon the victim before the killing. If the State is correct in its assertion that stalking is relevant to show this factor, the district court's order preventing relevant evidence on stalking does substantially burden the State's ability to prosecute its case. As a result, the State has met the requirements for an interlocutory appeal under K.S.A....