State v. Scott, No. 83,801.

• Decision Date: 16 May 2008
• Docket Number: No. 83,801.
• Citation: 183 P.3d 801
• Parties: STATE of Kansas, Appellee, v. Gavin D. SCOTT, Appellant.
• Court: Kansas Supreme Court

183 P.3d 801

STATE of Kansas, Appellee, v. Gavin D. SCOTT, Appellant.

No. 83,801.

Supreme Court of Kansas.

May 16, 2008.

Rebecca E. Woodman, capital appellate defender, and Steven R. Zinn, deputy appellate defender, argued the cause and were on the briefs for appellant.

Stephen R. McAllister, solicitor general, and Autumn L. Fox, assistant attorney general, argued the cause, and Jared S. Maag, deputy attorney general, Phill Kline, former attorney general, and Paul J. Morrison, attorney general, were with them on the briefs for appellee.

Daniel E. Monnat, of Monnat & Spurrier, Chtd., of Wichita, and Paige A. Nichols, of Lawrence, were on the brief for amicus curiae Kansas Association of Criminal Defense Lawyers.

The opinion of the court was delivered by PER CURIAM:

Gavin Scott appeals from jury trial convictions for the capital murder of Elizabeth Brittain, premeditated first-degree murder of Douglas Brittain, aggravated burglary, criminal possession of a firearm, and felony theft. Scott has been sentenced to death for capital murder, with consecutive sentences of life imprisonment with a mandatory minimum term of 40 years for premeditated first-degree murder, 51 months for aggravated burglary, 9 months for criminal possession of a firearm, and 7 months for felony theft. We affirm Scott's convictions except for the crime of premeditated murder which is reversed, set aside the imposition of the death penalty, and remand for another sentencing proceeding to determine whether Scott should be sentenced to death.

Scott does not challenge the sufficiency of the evidence necessary to support his convictions. A narrative of the underlying facts and circumstances as reported in State v. Wakefield, 267 Kan. 116, 977 P.2d 941 (1999), was largely replicated in this proceeding. Additional facts will be provided where appropriate under the issues raised on appeal.

THE LEGAL SUFFICIENCY OF COUNT SIX

Initially, Scott was charged in separate counts with the capital murders of Elizabeth Brittain and Douglas Brittain. K.S.A. 21-3439(a)(6) defines capital murder as the

"intentional and premeditated killing of more than one person as a part of the same act or transaction or in two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct."

Before trial, Scott filed a motion to dismiss the charges as multiplicitous, alleging both deaths constitute a single crime of capital murder. At a motion hearing, the State did not concede the charges were multiplicitous but did amend the information to charge Scott with the premeditated first-degree murder of Douglas Brittain in count two and the capital murder of Elizabeth Brittain in count six.

Count six of the amended information states:

"[O]n or about September 13, 1996, A.D., in the County of Sedgwick, and the State of Kansas, one GAVIN D. SCOTT, did then and there unlawfully, intentionally and with premeditation kill Elizabeth G. Brittain, and that the intentional and premeditated killing of Elizabeth G. Brittain, and Douglas G. Brittain, was part of the same act or transaction or two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct."

Scott contends the district court erred in denying his motion to arrest judgment for the capital murder of Elizabeth Brittain because count six does not allege Scott killed Douglas Brittain, an essential element of the crime. We accept Scott's premise that an essential element of the capital murder charge is that the defendant killed Douglas Brittain.

The question of whether an information is sufficient to give the district court jurisdiction is a question of law over which this court has unlimited review. State v. Shirley, 277 Kan. 659, 661, 89 P.3d 649 (2004). In analyzing whether an information is sufficient, this court applies one of two tests, depending on when the objection is raised. State v. Hooker, 271 Kan. 52, 61, 21 P.3d 964 (2001); see State v. Hall, 246 Kan. 728, 764-65, 793 P.2d 737 (1990), overruled in part on other grounds Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003). When a defendant files a motion for arrest of judgment based on a defective information, the pre-Hall standard applies. Hall, 246 Kan. at 764, 793 P.2d 737. Under this standard, an information which omits one or more of the essential elements of the crime it attempts to charge is jurisdictionally and fatally defective, and a conviction based on such an information must be reversed. State v. Sanford, 250 Kan. 592, 600-01, 830 P.2d 14 (1992). However, even under the pre-Hall standard, an information is sufficient if it substantially follows the language of the statute or charges the offense in equivalent words or others of the same import so long as the defendant is fully informed of the particular offense charged and the court is able to determine under what statute the charge is founded. State v. Micheaux, 242 Kan. 192, 197, 747 P.2d 784 (1987).

K.S.A. 21-3439(a)(6) requires that the State's charging document allege: (1) The defendant killed more than one person; (2) the killings were intentional and premeditated; and, (3) the killings were part of the same act or transaction, or two or more connected transactions. Count six, the capital murder charge, alleges Douglas Brittain was killed intentionally and with premeditation; however, it does not explicitly allege Scott killed him. As already noted, count two does charge Scott with the intentional, premeditated murder of Douglas Brittain. However, because count two was not expressly incorporated by reference into count six, it does not provide a necessary element of the offense. See State v. Garcia, 243 Kan. 662, 667, 763 P.2d 585 (1988), overruled in part on other grounds State v. Grissom, 251 Kan. 851, 892-93, 840 P.2d 1142 (1992); State v. Jackson, 239 Kan. 463, 465-66, 721 P.2d 232 (1986).

The State contends count six should be held sufficient because it is drawn in the language of K.S.A. 21-3439(a)(6) and follows PIK Crim.3d 56.00-A(1) and (3)(f). It is true an information drawn in the language of the substantive criminal statute is sufficient to withstand legal challenge. K.S.A. 22-3201(b); State v. Micheaux, 242 Kan. at 197, 747 P.2d 784. However, it is immaterial whether count six follows PIK Crim.3d 56.00-A, as the legal sufficiency of a charging document is not dependent upon instructions of law. Parenthetically, Scott argues the trial court's instruction suffers from the same perceived deficiency as the information — the instruction does not explicitly require the State to prove Scott killed Douglas Brittain. The sufficiency of the instruction to support Scott's conviction for the murder of Douglas Brittain is raised as a separate issue to be later addressed in this opinion.

Although we have stated a pre-Hall standard emphasizes "technical considerations, rather than practical considerations," Hooker, 271 Kan. at 61, 21 P.3d 964, we have also held "an information should be read in its entirety, construed according to common sense, and interpreted to include facts which are necessarily implied." Micheaux, 242 Kan. at 199, 747 P.2d 784. In Micheaux, we quoted from State v. Morris, 124 Kan. 505, 508, 260 Pac. 629 (1927), that "the day [has] passed in this jurisdiction `when criminals can hope to go unwhipped of justice because of the want of a technical recital in a criminal information which neither misled nor prejudiced them in the preparation or management of their defense.'" 242 Kan. at 197, 747 P.2d 784.

Applying the above considerations to count six, we conclude the allegation Scott killed Douglas Brittain was necessarily implied by the language used and a commonsense reading of the charge. Consequently, this omission is distinguishable from omissions we have held constitute reversible error under the pre-Hall standard.

In State v. Howell & Taylor, 226 Kan. 511, 512-14, 601 P.2d 1141 (1979), a conviction for aggravated robbery was reversed because the complaint failed to allege the taking was by force or threat of great bodily harm. In State v. Jackson, 239 Kan. 463, 465-67, 721 P.2d 232 (1986), we reversed convictions for two counts of indecent liberties with a child, one because the complaint failed to allege the victim was under 16 years of age, and one because the complaint failed to allege the child was not married to the accused. In State v. Browning, 245 Kan. 26, Syl. ¶ 4, 774 P.2d 935 (1989), we reversed a conviction for second-degree murder because the complaint failed to allege malice. In Hall, 246 Kan. at 746-47, 793 P.2d 737, we reversed a conviction of theft because the complaint failed to allege the defendant intended to permanently deprive the owner of possession of his cattle. In Sanford, 250 Kan. at 599-602, 830 P.2d 14, we reversed a conviction for aggravated kidnapping because the amended information failed to allege an intent to inflict bodily injury, terrorize the victim, or facilitate flight or the commission of a crime.

In each of the above cases, reversal was predicated on the omission of an essential element that could not be clearly inferred from the language of the charging document. Such is not the case here; rather, this omission is a technical defect of the type we decried in Morris, 124 Kan. at 508, 260 P. 629. Although it would have been preferable for the State to have explicitly alleged in count six that Scott killed Douglas Brittain, we conclude the omission is not fatal under a pre-Hall standard and did not prejudice the defendant's ability to prepare a defense or impair his right to a fair trial.

WHETHER COUNT TWO IS MULTIPLICITOUS WITH COUNT SIX

Scott next argues that if the capital murder charge does adequately charge "the intentional and premeditated killing of more than one person" (K.S.A. 21-3439[a][6]), his conviction for the premeditated first-degree murder of Douglas Brittain is multiplicitous.

We have stated "[m]ultiplicity...