State v. Kleypas, No. 80,920.

CourtUnited States State Supreme Court of Kansas
Writing for the CourtPer Curiam
Citation272 Kan. 894,40 P.3d 139
PartiesSTATE OF KANSAS, Appellee, v. GARY W. KLEYPAS, Appellant.
Decision Date28 December 2001
Docket NumberNo. 80,920.

272 Kan. 894
40 P.3d 139

STATE OF KANSAS, Appellee,
v.
GARY W. KLEYPAS, Appellant

No. 80,920.

Supreme Court of Kansas.

Opinion filed December 28, 2001.


272 Kan. 908
Jessica R. Kunen, chief appellate defender, and Steven R. Zinn, deputy appellate defender, argued the cause, and Rebecca E. Woodman, Reid T. Nelson, and Kirk C. Redmond, assistant appellate defenders, and David Gottlieb, of Kansas Defender Project, of Lawrence, were with them on the briefs for appellant

Carla J. Stovall, attorney general, argued the cause, and David B. Debenham and Julene L. Miller, deputy attorneys general; Alexander M. Walczak, Athena E. Andaya, John K. Bork, and Jared S. Maag, assistant attorneys general; and Stephen R. McAllister, special assistant attorney general, were with them on the briefs for appellee.

Stephen P. Garvey, John H. Blume III, and Sheri Lynn Johnson, of Ithaca, New York, were on the brief for amicus curiae Cornell Death Penalty Project.

Andrea D. Lyon, of Ann Arbor, Michigan, was on the brief for amicus curiae National Association of Criminal Defense Lawyers.

Paige A. Nichols, of Lawrence, was on the brief for amicus curiae Kansas Association of Criminal Defense Lawyers.

Kent S. Scheidegger, of Sacramento, California, was on the brief for amicus curiae Criminal Justice Legal Foundation.

The opinion of the court was delivered by

Per Curiam:

Gary W. Kleypas was sentenced to death for the murder of C.W. He appeals, claiming errors occurred in the jury's determination of his guilt and that death should be imposed. He also raises what he claims are constitutional deficiencies with Kansas statutes authorizing imposition of the death penalty. We conclude that no reversible error occurred during the guilt phase of the trial and affirm all of Kleypas' convictions. We conclude that imposition of the death penalty must be vacated because of an instructional error. We remand for another separate sentencing proceeding to determine whether Kleypas should be sentenced to death.

The Kansas Legislature enacted a death penalty in 1994. See K.S.A. 21-3439; K.S.A. 21-4624. This case represents the first court

272 Kan. 909
challenge under the enactment. Kansas law requires an automatic review by this court for anyone who has been sentenced to death under Kansas law
"(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 in the manner provided by the applicable statutes and rules of the supreme court governing appellate procedure. The review and appeal shall be expedited in every manner consistent with the proper presentation thereof and given priority pursuant to the statutes and rules of the supreme court governing appellate procedure.
"(b) The supreme court of Kansas shall consider the question of sentence as well as any errors asserted in the review and appeal and shall be authorized to notice unassigned errors appearing of record if the ends of justice would be served thereby.
"(c) With regard to the sentence, the court shall determine:
(1) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; and
(2) whether the evidence supports the findings that an aggravating circumstance or circumstances existed and that any mitigating circumstances were insufficient to outweigh the aggravating circumstances.
"(d) The court shall be authorized to enter such orders as are necessary to effect a proper and complete disposition of the review and appeal." K.S.A. 21-4627.

We will consider in this opinion Kleypas' assigned errors, as well as our responsibilities under K.S.A. 21-4627, in three parts. Part one deals with issues arising in the guilt or innocence phase of the trial. This phase is, with few exceptions, analogous to the trial in a non-death penalty case. Part two, the penalty phase, concerns the constitutional challenges against the Kansas death penalty. Finally, part three, which is operative only if an accused is convicted of capital murder in the guilt phase, concerns whether the death penalty shall be imposed.

FACTS

On March 30, 1996, the body of Pittsburg State University student C.W. was discovered in the bedroom of her apartment at 113 W. Lindburg in Pittsburg, Kansas. She had been stabbed seven times through the heart, and her liver had been badly damaged, possibly by stomping. Her body was heavily bruised and her jaw was fractured. She also had a wound over her eyebrow that was caused by a sharp object. Socks tied to a chair in the bedroom,

272 Kan. 910
along with socks tied to C.W.'s right leg, indicated that C.W. had been tied to the chair at one point. There was also evidence that C.W. had been sodomized by some object, and there were body fluids on her shirt

On several occasions prior to the murder, C.W. and her roommate, Robyn, had returned to the apartment to find the door open. In September 1995, money and Robyn's camera were stolen from the apartment. At the time it was stolen, the camera had contained film with photographs Robyn had taken on a trip to Padre Island, Texas. The camera also had sand in the viewfinder as the result of that trip. C.W. and Robyn requested that the lock to their apartment be changed as a result of the break-ins.

C.W. and Robyn had also been receiving obscene telephone calls from an unidentified male caller. The caller indicated that he knew their names and wished to engage in anal intercourse with C.W. After Robyn reported the calls to police, C.W.'s mother bought a caller identification unit for the apartment and the calls subsequently ceased.

On the night before the discovery of the body, C.W. and her best friend, Tiffany, had spent the evening watching a video in the apartment. C.W. dropped Tiffany off at her residence at approximately 1 a.m. The two made plans to go to garage sales at 8 a.m. that next morning. Mike, C.W.'s fiancee, returned an earlier call from C.W. shortly after 2 a.m. and spoke to her at that time.

When Tiffany arrived at the apartment at 8 a.m. to meet C.W., no one answered the door. Thinking C.W. had decided to sleep in, Tiffany went to a few garage sales alone. She then went to her house and attempted to call C.W. She left a message and continued to telephone because she knew C.W. was scheduled to work at J.C. Penney's sometime in the early afternoon. After calling Penney's and learning that C.W. was to report to work at 1 p.m. and then calling Mike, who told her that he had not heard from C.W., Tiffany decided to go to the apartment. When no one responded after she knocked on the doors and windows, she became alarmed and went next door to the apartment manager's residence. The manager and her son went with Tiffany, and they entered C.W.'s apartment. Tiffany began to call for C.W. Tiffany noticed that C.W.'s

272 Kan. 911
bedroom door was closed, and she knew this was unusual. When she told the manager she was afraid, the manager offered to open the door but Tiffany continued. She called out to C.W., but no one answered, so she opened the door and saw the body on the floor.

Police found a footprint outside the kitchen window of the apartment. Another window and its frame had been broken and the screen removed. The screen was found in the trash behind the apartment and a piece of screen was also found in the bedroom clothes hamper. There was blood on the inside doorknob of the apartment and a bloody handprint on the wall. Blood on a pillow in the bedroom was consistent with someone holding a pillow over the mouth of a person who was bleeding.

Suspicion focused on Kleypas, a neighbor of C.W. Kleypas was also a student at Pittsburg State University and had helped his cousin, a maintenance man, provide service for the neighboring apartment buildings. The police discovered that Kleypas' telephone number had registered on the caller ID in C.W.'s apartment at 1:48 on the morning of the murder. One of the officers recognized the name and knew that Kleypas lived nearby and was on parole for a prior murder. A neighbor found a roll of film on the ground beside Kleypas' car on the morning of the murder. The developed roll contained photographs of Robyn and her friends and three photographs of the inside of Kleypas' apartment.

Officers went to Kleypas' apartment building where they discovered blood on the outer door. A search warrant was obtained and the scene sealed. After the warrant arrived at the scene, officers discovered that the portion of the warrant which contained the list of items to be seized was blank. The officers present conferred and determined that the affidavit could be read together with the warrant. The officers entering Kleypas' apartment were briefed on the items to be seized that were listed in the affidavit. Inside Kleypas' apartment, police collected serological evidence and seized a large quantity of physical evidence, including a shower curtain, a pair of shoes, papers identifying Kleypas as the resident, drug paraphernalia, answering machine tapes, photographs, an empty bottle of Canadian Mist, and a wooden box with a false

272 Kan. 912
bottom containing syringes. More drug paraphernalia was found in a hidden space outside the apartment door to Kleypas' unit.

Between 7 and 9 on the morning of the murder, Kleypas went to two stores, writing checks at both for cash. He also withdrew $100 from his bank account and left town.

By that evening, Crawford County Attorney Barry Disney became aware that Kleypas was a suspect. Over the next 2 days, Disney discovered that a report had been filed in 1994 against Kleypas alleging rape and that he had decided not to file charges because he did not think he could win the case. Upon reconsideration, Disney decided to file charges for the 1994 rape. An arrest warrant was issued and Kleypas' name was entered into a national law enforcement database.

On April 1, 1996, Agent Tom Williams of the Kansas Bureau of Investigation (KBI) was...

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122 practice notes
  • State v. Hebert, No. 88,084
    • United States
    • United States State Supreme Court of Kansas
    • January 16, 2004
    ...PIK Crim. 3d 56.17). A. Standard of review The trial court has a duty to instruct the jury on lesser included offenses. State v. Kleypas, 272 Kan. 894, 942, 40 P.3d 139 The duty to instruct arises only where the record shows evidence upon which the accused might reasonably be convicted of t......
  • State v. Odom, No. W2000-02301-SC-DDT-DD.
    • United States
    • Supreme Court of Tennessee
    • May 21, 2004
    ...Collins, 100 F.Supp.2d 647, 766 (S.D.Ohio 2000); People v. Ghent, 43 Cal.3d 739, 239 Cal.Rptr. 82, 739 P.2d 1250 (1987); 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); Domingues v. State, 114 Nev. 783, 961 P.2d 1279 (199......
  • Keen v. State, No. W2004-02159-CCA-R3-PD (Tenn. Crim. App. 6/5/2006), No. W2004-02159-CCA-R3-PD.
    • United States
    • Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
    • June 5, 2006
    ...was sufficient to satisfy the test in Remmer v. United States, 347 U.S. 227, 229, 74 S. Ct. 450, 451 (1954)); State v. Kleypas, 40 P.3d 139 (Kan. 2001) (quote from Bible made by one juror to another not reversible error); Young v. State, 12 P.3d 20 (Okla. Crim. App. 2000) (it is to be presu......
  • State v. Roeder, 104,520.
    • United States
    • United States State Supreme Court of Kansas
    • October 24, 2014
    ...to present a defense, we review the issue de novo.” State v. Carter, 284 Kan. 312, 318–19, 160 P.3d 457 (2007) (citing State v. Kleypas, 272 Kan. 894, 921–22, 40 P.3d 139 [2001], cert. denied 537 U.S. 834, 123 S.Ct. 144, 154 L.Ed.2d 53 [2002] ).Analysis A defendant has a right to present hi......
  • Request a trial to view additional results
123 cases
  • State v. Hebert, No. 88,084
    • United States
    • United States State Supreme Court of Kansas
    • January 16, 2004
    ...PIK Crim. 3d 56.17). A. Standard of review The trial court has a duty to instruct the jury on lesser included offenses. State v. Kleypas, 272 Kan. 894, 942, 40 P.3d 139 The duty to instruct arises only where the record shows evidence upon which the accused might reasonably be convicted of t......
  • State v. Odom, No. W2000-02301-SC-DDT-DD.
    • United States
    • Supreme Court of Tennessee
    • May 21, 2004
    ...Collins, 100 F.Supp.2d 647, 766 (S.D.Ohio 2000); People v. Ghent, 43 Cal.3d 739, 239 Cal.Rptr. 82, 739 P.2d 1250 (1987); 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); Domingues v. State, 114 Nev. 783, 961 P.2d 1279 (199......
  • Keen v. State, No. W2004-02159-CCA-R3-PD (Tenn. Crim. App. 6/5/2006), No. W2004-02159-CCA-R3-PD.
    • United States
    • Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
    • June 5, 2006
    ...was sufficient to satisfy the test in Remmer v. United States, 347 U.S. 227, 229, 74 S. Ct. 450, 451 (1954)); State v. Kleypas, 40 P.3d 139 (Kan. 2001) (quote from Bible made by one juror to another not reversible error); Young v. State, 12 P.3d 20 (Okla. Crim. App. 2000) (it is to be presu......
  • State v. Roeder, 104,520.
    • United States
    • United States State Supreme Court of Kansas
    • October 24, 2014
    ...to present a defense, we review the issue de novo.” State v. Carter, 284 Kan. 312, 318–19, 160 P.3d 457 (2007) (citing State v. Kleypas, 272 Kan. 894, 921–22, 40 P.3d 139 [2001], cert. denied 537 U.S. 834, 123 S.Ct. 144, 154 L.Ed.2d 53 [2002] ).Analysis A defendant has a right to present hi......
  • Request a trial to view additional results

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