State v. Roeder

Decision Date24 October 2014
Docket Number104,520.
PartiesSTATE of Kansas, Appellee, v. Scott P. ROEDER, Appellant.
CourtKansas Supreme Court

Rachel L. Pickering, of Kansas Appellate Defender Office, argued the cause, and Michelle A. Davis, of the same office, was with her on the briefs for appellant, and Scott P. Roeder, appellant pro se, was on the supplemental briefs.

Boyd K. Isherwood, chief appellate attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

Stephen Douglas Bonney, of ACLU of Kansas & Western Missouri, of Kansas City, Missouri, and Alexa Kolbi–Molinas and Talcott Camp, of counsel, ACLU Foundation, of New York, New York, were on the brief for amici curiae National Abortion Federation, American Civil Liberties Union, and ACLU of Kansas & Western Missouri.


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

On May 31, 2009, Scott Roeder executed his years-old plan to kill Dr. George Tiller to prevent the Wichita, Kansas, doctor from performing any further abortions. After fatally shooting the doctor from point blank range during church services while the doctor served as an usher, Roeder hastily fled the premises. During his getaway, Roeder threatened to shoot two other ushers who had pursued him outside the church. Roeder did not deny committing the physical acts underlying a premeditated first-degree murder charge and two counts of aggravated assault, and the jury convicted him of those offenses.

On appeal, Roeder challenges both his convictions and his hard 50 life sentence. With respect to his convictions, Roeder raised numerous issues, some of which overlap, to-wit: (1) The district court erroneously denied his requested instruction on voluntary manslaughter based upon an imperfect defense-of-others; (2) the district court violated his due process right to present a defense of voluntary manslaughter based upon an imperfect defense of another; (3) the district court erroneously denied the defense motion for a change of venue; (4) the prosecutor committed reversible misconduct during closing argument; (5) the district court violated his due process right by excluding evidence to support a necessity defense and by failing to instruct on the necessity defense; (6) the district court erroneously denied his requested second-degree murder instruction; (7) the district court erroneously denied his requested defense-of-others instruction; and (8) the cumulative effect of trial errors denied him a fair trial. Finding that Roeder was not denied a fair trial, we affirm his convictions.

With respect to Roeder's sentence, our determination that the sentencing scheme in K.S.A. 21–4635 violates the Sixth Amendment to the United States Constitution requires that we vacate Roeder's hard 50 sentence and remand for resentencing. Therefore, we will not address Roeder's other sentencing issues.

Factual and Procedural Background

Because Roeder did not deny that he intentionally shot Dr. Tiller in the head with the premeditated intent to kill him or that he intentionally threatened to shoot the two ushers to prevent their pursuit as he ran away from the church, a good deal of the evidence at trial dealt with Roeder's religious beliefs and their manifestation into his perceived need to kill Dr. Tiller.

Roeder testified about his 1992 conversion to Christianity, which ultimately led to a strong opposition to abortion. He testified that he believed that [f]rom conception forward, [abortion] is murder” because [i]t is not man's job to take life.” As his feelings against abortion intensified, Roeder became actively involved in the anti-abortion movement, often demonstrating at abortion clinics, including Dr. Tiller's, in an attempt to convince patients not to have abortions. Roeder focused on Dr. Tiller because the doctor “was one of the three late-term abortionists in the country,” and Roeder believed late-term abortions “are definitely wrong.” Roeder encouraged women arriving at Dr. Tiller's clinic to instead seek counseling next door at the Crisis Pregnancy Center. Roeder related that some of the women with whom he spoke outside Dr. Tiller's clinic ultimately decided not to have abortions, and he therefore deemed his interventions to be successes in his fight against abortion.

Roeder was also allowed to testify about the criminal charges that had been brought against Dr. Tiller and Roeder's frustration with the results of those cases. He related that in 2006, the Attorney General at that time filed felony charges in Sedgwick County alleging that Dr. Tiller had unlawfully performed late-term abortions but that those charges were dismissed the next day at the insistence of the Sedgwick County District Attorney. In 2009, an assistant attorney general prosecuted Dr. Tiller on 19 misdemeanor counts of failing to follow the correct procedure in performing late-term abortions, but a jury acquitted Dr. Tiller on all 19 counts. Roeder testified that the acquittal caused him to believe that

[t]here was nothing being done and the legal process had been exhausted and these babies were dying every day, and I felt that if someone did not do something, he was going to continue aborting children, and so I felt that I needed to act and quickly for those children.”

Roeder was further permitted to discuss previous attempts to “stop” Dr. Tiller by other anti-abortion criminals. For instance, Dr. Tiller's clinic was bombed in 1986, but the clinic was functioning again a few days later. In 1993, a woman shot Dr. Tiller once in each arm, but he was back at work the next day. Accordingly, in 1993, Roeder began exploring the possibility of personally using physical force against abortion providers in general and Dr. Tiller in particular. Roeder even admitted that he initially thought about cutting Dr. Tiller's hands off with a sword but ultimately decided that he needed to kill Dr. Tiller.

Roeder explained that he abandoned his initial plans to commit the murder at Dr. Tiller's home or clinic because of the security measures the doctor had put in place. That circumstance led Roeder to the realization that the only place he could get close enough to Dr. Tiller was in the doctor's church. From the record, one cannot discern whether Roeder grasped the irony of his testimony, i.e., the only way that Roeder could kill the doctor in the name of his own God was to commit the murder in the house of Dr. Tiller's God. Roeder took affirmative steps toward accomplishing the goal of his new plan as early as 2002 when he made his first visit to the doctor's church and gathered information about the premises.

Some years later, in 2008, Roeder again attended the services at Dr. Tiller's church, this time armed with a 9mm weapon with which to shoot the doctor. That attempt was thwarted by the doctor's absence from that particular service.

On May 18, 2009, Roeder bought a Taurus PT .22 caliber semi-automatic handgun from a pawn shop in Lawrence, Kansas. Roeder's federal background check was held up, delaying delivery of the weapon to Roeder until May 23, 2009. The next day, Roeder took that weapon to Dr. Tiller's church, but again, the doctor was not attending the service. Six days later, Roeder returned to the pawn shop to buy two boxes of ammunition, which he took to his brother's home in a rural area near Topeka, Kansas, to test fire his gun. After experiencing problems with the weapon, Roeder and his brother went to a gun shop in Topeka and purchased a different type of ammunition before Roeder headed to Wichita to “deal with Dr. Tiller.” During his drive to Wichita, Roeder pulled over in rural areas and test-fired the weapon with the new ammunition.

After arriving in Wichita, Roeder attended the Saturday evening service, but again, the doctor was not in attendance. After staying the night in a Wichita hotel, Roeder returned to Dr. Tiller's church. He backed his car into a stall as close as possible to the church doors to facilitate a hasty exit. Roeder entered the church and took a seat in the sanctuary until he spotted Dr. Tiller in the church foyer. Then, he approached the doctor and, without warning, placed the gun to Dr. Tiller's forehead and pulled the trigger. Roeder immediately fled the scene of the crime, running from the church foyer to his parking spot and then driving away in his vehicle.

Two men who were serving as ushers with Dr. Tiller that Sunday, Gary Hoepner and Keith Martin, separately chased after Roeder. At different points along his escape route, Roeder separately pointed his weapon at Hoepner and Martin, threatening to shoot each of them. Hoepner was able to report the shooting to a 911 operator, and another church member relayed Roeder's vehicle license plate number.

After leaving the church parking lot, Roeder drove towards his Kansas City home. Along the way, he disposed of his weapon in Burlington, Kansas. A deputy spotted Roeder's vehicle on I–35 and pulled him over near Gardner, Kansas, at approximately 1:25 p.m. Roeder made no attempt to resist arrest.

Roeder testified that he killed Dr. Tiller because if someone did not stop Dr. Tiller, he was going to continue [performing abortions] as he had done for 36 years.” More specifically, Roeder believed that if he did not kill Dr. Tiller, unborn children were going to die 22 hours later because Dr. Tiller had abortions scheduled at his clinic the next day.

The jury convicted Roeder of premeditated first-degree murder and two counts of aggravated assault. The district court found aggravating circumstances to impose a hard 50 life sentence on Roeder's first-degree murder conviction, as will be discussed below, and further imposed 12 months' imprisonment on each of the aggravated assault convictions; all sentences were imposed consecutively.

Roeder timely appeals his convictions and hard 50 sentence. We take the liberty of addressing Roeder's issues in a different order than he presented them, beginning...

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