State v. Kleypas

Decision Date21 October 2016
Docket NumberNo. 101,724,101,724
Parties State of Kansas, Appellee, v. Gary W. Kleypas, Appellant.
CourtKansas Supreme Court

305 Kan. 224
382 P.3d 373

State of Kansas, Appellee,
Gary W. Kleypas, Appellant.

No. 101,724

Supreme Court of Kansas.

October 21, 2016

Meryl B. Carver–Allmond, of Capital Appellate Defender Office, argued the cause, and Sarah Ellen Johnson and Rebecca E. Woodman, of the same office, were with her on the briefs for appellant.

Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, were with him on the brief for appellee.

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

In previous proceedings, a jury convicted Gary W. Kleypas of capital murder, aggravated burglary, and attempted rape and determined that Kleypas should be sentenced to death. Subsequently, the district court imposed the death sentence for the capital murder conviction, as well as time in prison for the other convictions. Kleypas appealed from his convictions and sentences, and in State v. Kleypas , 272 Kan. 894, 40 P.3d 139 (2001) (Kleypas I ), cert. denied 537 U.S. 834, 123 S.Ct. 144, 154 L.Ed.2d 53 (2002), abrogated in part by Kansas v. Marsh , 548 U.S. 163, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006), this court affirmed his convictions but found reversible error relating to his capital sentence and ordered a new sentencing proceeding. On remand, a second jury determined that Kleypas should be sentenced to the death penalty. The district court subsequently imposed that sentence for the capital murder conviction and prison sentences for the aggravated burglary and attempted rape convictions.

Now, on appeal from the remand proceedings, Kleypas raises six issues regarding his guilt and argues we must reverse his capital murder and attempted rape convictions. We decline to address

305 Kan. 231

four of his arguments because this court's decision in Kleypas I stands as the law of the case on those issues. However, we consider the two other guilt-phase issues because they fall under exceptions to the law of the case doctrine; under these exceptions, a court may alter a prior decision made in the same case if a party establishes that the prior decision was clearly erroneous or that new controlling authority applies.

In one of these two issues, Kleypas argues a post-Kleypas I decision by the United States Supreme Court requires us to reexamine our holding that the district court did not err in denying Kleypas' motion to suppress certain evidence. Kleypas succeeds in establishing error—the evidence should have been suppressed. Nevertheless, we hold the error was harmless and does not require us to reverse Kleypas' convictions.

As to the other guilt-phase issue, we hold that post-Kleypas I decisions of this court require us to reverse Kleypas' conviction for attempted rape because it is multiplicitous with his capital murder conviction; this also means his sentence for attempted rape must be vacated. Because the attempted rape sentence was the controlling sentence under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21–4701 et seq . (Furse), Kleypas must be resentenced on the remaining conviction governed by Kansas' sentencing guidelines—his conviction for aggravated burglary.

In addition to his guilt-phase arguments, Kleypas raises 14 issues relating to the capital-offense sentencing proceedings that occurred after we remanded this case following our Kleypas I decision. We hold that none of

382 P.3d 389

these 14 issues requires us to reverse that sentence. We have reordered some of those issues for analysis. Specifically, we hold:

• The district court did not abuse its discretion when it denied Kleypas' motion for mistrial, in which Kleypas claims the jury could not be fair and impartial after it saw a courtroom spectator attack him (Issue 7);

• The district court did not abuse its discretion when it denied Kleypas' motion for mistrial that was based on a prosecutor beginning a question with the phrase, “If the defendant testified” (Issue 8);
305 Kan. 232
• Any error in the admission of a Kansas Bureau of Investigation (KBI) agent's testimony concerning test results obtained by other agents was harmless (Issue 9);

• The district court's failure to follow the mandate of Kleypas I amounted to harmless error (Issue 10);

• The district court did not commit error when it decided not to list “mercy” as one of the mitigators asserted by Kleypas (Issue 11);

• The district court did not commit error by instructing the jury it could determine what constituted a mitigating circumstance under the facts of the case (Issue 12);

• Neither the prosecutor's closing argument regarding mercy nor his cross-examination of a defense expert resulted in reversible error (Issue 13);

• The district court did not err in refusing to consider Kleypas' collateral attack on his 1977 Missouri conviction (Issue 14);

• The Eighth Amendment to the United States Constitution does not categorically prohibit execution of offenders who were severely mentally ill at the time of their crime (Issue 15);

• Kleypas fails to establish the basis for proportionality review under § 9 of the Kansas Constitution Bill of Rights (Issue 16);

• The district court did not err in admitting rebuttal testimony of the State's expert (Issue 17);

• The heinous, atrocious, and cruel aggravating factor that may be considered in death penalty proceedings under K.S.A. 2015 Supp. 21–6624 is not vague or overbroad (Issue 18);

• Kleypas has not established that the district court erred in empaneling a new jury on remand (Issue 19); and

• Cumulative error does not require reversal of Kleypas' capital murder conviction or death sentence (Issue 20).

We therefore affirm Kleypas' capital murder conviction and his death sentence, but we reverse his attempted rape conviction as multiplicitous, vacate his sentence for attempted rape, and remand

305 Kan. 233

for resentencing on the other sentencing guideline conviction of aggravated burglary.


In Kleypas I , 272 Kan. at 909–14, 40 P.3d 139, this court extensively discussed the criminal acts that led to Kleypas' convictions for the capital murder of C.W., the aggravated burglary of her apartment, and the attempt to rape her. Highly summarized, in March 1996, C.W.'s body was discovered in her apartment where she had died after suffering seven stab wounds to her heart, a lacerated liver, a dilated anus, bruising all over her body, a fractured jaw, and multiple other injuries—some of which indicated sex crimes had occurred.

Suspicion for C.W.'s murder immediately fell on Kleypas, who lived near C.W.'s apartment, because C.W.'s caller ID had logged Kleypas' phone number at 1:48 on the morning of the murder. Once apprehended by law enforcement officers, Kleypas confessed to burglarizing C.W.'s apartment and then raping and murdering her. He told officers he had forced his way into C.W.'s apartment and had digitally penetrated her vagina. Kleypas admitted he had strangled C.W. before stabbing her repeatedly in the chest. Kleypas also admitted he had burglarized C.W.'s apartment and had made obscene phone calls to her in the days before the murder.

382 P.3d 390

After trial, the jury convicted Kleypas of capital murder under K.S.A. 21–3439(a)(4), attempted rape, and aggravated burglary. See K.S.A. 21–3439(a)(4) (defining capital murder as the “intentional and premeditated killing of the victim of one of the following crimes in the commission of, or subsequent to, such crime: Rape, as defined in K.S.A. 21–3502 and amendments thereto, ... or any attempt thereof, as defined in K.S.A. 21–3301 and amendments thereto”). Kleypas appealed. This court affirmed Kleypas' convictions. But it held that an error in the jury instructions regarding sentencing required it to vacate Kleypas' death penalty sentence. 272 Kan. at 908, 40 P.3d 139. Kleypas sought a petition for certiorari, which the United States Supreme Court denied. Kleypas v. Kansas , 537 U.S. 834, 123 S.Ct. 144, 154 L.Ed.2d 53 (2002). This court then issued a mandate vacating Kleypas' death sentence and remanding the case to the district court with instructions to conduct a new sentencing proceeding.

305 Kan. 234

During the remand proceedings, the State again sought the death penalty. The district court instructed the jury it could reach one of two verdicts: (a) It could impose a sentence of death by unanimously finding beyond a reasonable doubt that there were one or more aggravating circumstances and those aggravating circumstances were not outweighed by any mitigating circumstances found to exist; or (b) it could state that it was unable to reach a unanimous verdict sentencing the defendant to death. The State asked the jurors, as part of their weighing process, to consider three aggravating circumstances: (1) Kleypas had been previously convicted of a felony in which he had inflicted great bodily harm, disfigurement, or death on another; (2) Kleypas had murdered C.W. in order to avoid or prevent a lawful arrest or prosecution; and (3) Kleypas had murdered C.W. in an especially heinous, atrocious, or cruel manner.

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