State v. Thurber

• Decision Date: 15 June 2018
• Docket Number: No. 102,605,102,605
• Citation: 420 P.3d 389
• Parties: STATE of Kansas, Appellee, v. Justin Eugene THURBER, Appellant.
• Court: Kansas Supreme Court

420 P.3d 389

STATE of Kansas, Appellee,

v.Justin Eugene THURBER, Appellant.

No. 102,605

Supreme Court of Kansas.

Opinion filed June 15, 2018.

Reid T. Nelson, of Capital Appeals and Conflicts Office, argued the cause, and Debra J. Wilson, of the same office, was with him 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 briefs for appellee.

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

In this capital murder case, a jury convicted and sentenced to death Justin Eugene Thurber for the January 2007 abduction and murder of J.S., a 19-year-old Cowley County Community College student. On direct appeal, Thurber claims numerous errors during his trial's guilt and penalty phases. See K.S.A. 21-4624 (requiring a jury to first decide a defendant's guilt before reconvening to determine whether to impose the death penalty). We affirm Thurber's capital murder and aggravated kidnapping convictions because we discern no reversible error during the trial's guilt phase.

As to Thurber's death sentence, a threshold matter must be resolved before we can go further. Thurber claims evidence from his 2009 penalty-phase proceedings demonstrated he was intellectually disabled and the district court erred when it found there was insufficient reason to believe that was true. Executing a person with an intellectual disability is prohibited. See Atkins v. Virginia , 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed. 2d 335 (2002) ; see also K.S.A. 2016 Supp. 21-6622(f) (district court cannot impose death sentence on a capital defendant whom the court determines to be intellectually disabled). Thurber also challenges the constitutionality of our statutes defining intellectual disability as they existed at the time of his crimes and as they exist now.

Our problem on appeal is identifying the law to apply to resolve these questions because that law changed after Thurber's trial. The United State Supreme Court twice expanded Eighth Amendment requirements for making intellectual disability determinations in death penalty cases. See Moore v. Texas , 581 U.S. ––––, 137 S.Ct. 1039, 1044, 1053, 197 L.Ed. 2d 416 (2017) (states cannot restrict an individual's qualification as intellectually disabled by using outdated medical standards; these adjudications should be informed by the medical community's current consensus reflecting its improved understanding over time); Hall v. Florida , 572 U.S. ––––, 134 S.Ct. 1986, 2001, 188 L.Ed. 2d 1007 (2014) (When defendant's IQ test score falls within the test's acknowledged and inherent margin of error, defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.).

Adding to this conundrum, the 2016 Legislature amended 76-12b01(i), expanding the criteria for demonstrating intellectual disability by allowing evidentiary "means in addition to standardized intellectual testing." The Legislature also directed that this change "shall be construed and applied retroactively ." (Emphasis added.) See L. 2016, ch. 108, § 1. These revisions appear to reflect legislative intent to comply with the United States Supreme Court's 2014 Hall decision by altering a key definition previously used by our Kansas courts for intellectual disability determinations. See K.S.A. 2016 Supp. 21-6622(h).

Because new rules for conducting criminal prosecutions typically apply to cases pending on direct review, such as Thurber's, we have determined the best interests of justice require remanding this limited question on intellectual disability to the district court for further proceedings. We retain jurisdiction over the remaining penalty-phase issues pending notification from the district court and the parties about the outcome on remand.

FACTUAL AND PROCEDURAL BACKGROUND

On Friday, January 5, 2007, following a late morning practice with her Cowley Community College Tigerette dance team, J.S. was reported missing. As police searched the Arkansas City area, suspicion quickly focused on Thurber.

That evening, a police officer saw Thurber's car parked near his parents' house. Thurber's father invited the officer inside to speak with Thurber. When asked about his whereabouts, Thurber said he drove his car to Winfield to meet a friend earlier that day; once there he and his friend met two people his friend knew, but whom Thurber did not know. He said the four drove around rural areas in a car belonging to one of the friend's friends until the car got stuck on a dirt road near Cedar Vale. Thurber said he started walking alone toward Arkansas City. He eventually called his father, who picked him up. Thurber's father confirmed getting Thurber, who was wet and muddy, a little over a mile west from Cowley County State Fishing Lake. Thurber told the officer some friends drove his car back from Winfield. After getting the car, he said, he picked up his paycheck at Subway, where he worked.

That same evening, officers spoke with Alexis Swartzell, who recently ended a three-year relationship with Thurber. She told officers Thurber often took her to the Kaw Wildlife Area, southeast of Arkansas City, and she pointed out places she and Thurber would visit.

On Saturday, January 6, 2007, Detective Eric Mata arrested Thurber on a bond revocation and suspicion of criminal trespass because the investigation into J.S.'s disappearance showed Thurber had been on the college campus, where the detective believed Thurber was not supposed to be. Thurber told Mata he wanted to speak with his attorney.

Also that evening, officers searched Thurber's parents' house. Officers collected the shoes Thurber wore when his father picked him up the day before. The shoes were wet and drying on a towel. Thurber's father told police he helped Thurber clean mud off the shoes.

By Sunday, January 7, 2007, searchers trained in identifying human activity in rough country looked for J.S. near the Kaw Wildlife Area. They found matching impressions of Thurber's shoes. They also saw tracks nearby that appeared to be impressions left by flip-flop sandals. As evening approached, the search stopped for the day.

On the way home, some searchers drove past Cowley County State Fishing Lake and decided to stop because they heard Thurber was wet when his father picked him up. They discovered a muddy tire track, muddy shoeprints near a public restroom, mail addressed to J.S.'s parents in a chemical toilet, dance shoes in another toilet, and a flip-flop sandal. Investigators later retrieved cutoff sweat shorts, a wallet containing J.S.'s driver's license and social security card, her black leotard, a Tigerette jacket with J.S.'s first name on the front, a vehicle floor mat, and a car seat cushion. The sandal matched the impressions found at the Kaw Wildlife Area. Searchers spent the next two days around Cowley County State Fishing Lake and the Kaw Wildlife Area.

On Tuesday, January 9, 2007, divers located J.S.'s submerged car in the lake. Officers recovered another flip-flop sandal matching the earlier one. At the Kaw Wildlife Area, searchers found J.S.'s naked body in a wood pile.

The State charged Thurber with two alternative counts of capital murder: one alleging J.S. was the victim of attempted rape and the second alleging she was the victim of aggravated criminal sodomy. The State also charged Thurber with one count of aggravated kidnapping and filed a notice of intent to seek the death penalty based on a single aggravating circumstance—the murder was committed in an especially heinous, atrocious, or cruel manner. See K.S.A. 21-4624(a) ; K.S.A. 21-4625(6).

Trial: guilt-phase proceedings

A little more than two years later, a jury convicted Thurber of capital murder based on combined theories of attempted rape and aggravated criminal sodomy. The jury also convicted him of aggravated kidnapping. It is necessary to detail the prosecution's case to explain how we resolve the issues.

The State presented evidence of Thurber's and J.S.'s movements on the day J.S. disappeared. The State placed Thurber at Cowley County Community College that morning. Photographs and security camera footage showed Thurber's light blue Cadillac at various campus locations with the car entering and exiting campus parking lots multiple times between 10:18 a.m. and 11:48 a.m. Two Tigerette dance team members testified they saw Thurber in his vehicle near campus that morning. One noticed him as she arrived for practice at 9:50 a.m., and the other as she left practice at 11:50 a.m.

Several witnesses testified they saw J.S.'s car that afternoon. Kari Morris, J.S.'s friend, noticed J.S. sitting in the passenger seat as their two vehicles passed each other in Arkansas City shortly after noon. Morris testified the person driving J.S.'s car appeared to be a large male. She called J.S.'s cell phone but did not get an answer. She said J.S.'s car appeared to be heading east out of town. Two other women testified they saw a car like J.S.'s vehicle while driving on a dirt road south of Arkansas City around 3 p.m. One testified Thurber was the driver and identified him in court.

Cell phone tower data indicated Thurber's and J.S.'s cell phones were east of Arkansas City that afternoon. And some of the individuals who Thurber said he was with that day testified they were not with him.

The State presented DNA evidence connecting Thurber to J.S.'s car and her body. Terry Melton, a director of a forensic DNA testing laboratory, testified she ran mitochondrial DNA tests on a hair found on the driver's seat of J.S.'s car. Melton said Thurber and his maternal relatives could not be excluded as donors, although 99.77 percent of the population could be excluded. Lance Antel, a KBI forensic biologist, analyzed several DNA samples collected from J.S.'s body. Antel could not exclude Thurber as a possible contributor for a partial mixture DNA profile...