Appeal from Wyandotte district court; THOMAS L. BOEDING, judge.
1. The most fundamental rule of statutory construction is to attempt to ascertain the legislature's intent through the statutory language it employs, giving ordinary words their ordinary meaning. When a statute is plain and unambiguous, the courts are charged with the responsibility to give effect to the legislature's expressed intent, resisting the temptation to determine what the law should or should not be.
2. The general allocution statutory provisions provide that a defendant may exercise the right of allocution before the sentencing court. The allocution provisions do not make an exception for death penalty cases, so that a capital murder defendant is entitled to that same right of allocution before the sentencing court, not the sentencing jury.
3. The legislature is the architect of the death penalty in this state. In establishing the death penalty sentencing procedure in a capital murder case, the legislature did not provide a mechanism for the defendant to make an unsworn, unchallenged statement to the death penalty jury. Any common-law or other right a person may have to plead to the jury to spare his or her life has been preempted by the legislature.
4. Our statutory scheme of allocution and death penalty sentencing does not violate a capital murder defendant's constitutional rights.
The opinion of the court was delivered by: Johnson, J.
Following Darrell Stallings' conviction on five counts of capital murder, the State sought the death penalty. Pursuant to Stallings' request for allocution and over the State's objection, the district court permitted Stallings to address the sentencing jury on the issue of mitigation of punishment; Stallings was not sworn or subject to cross-examination. The jury could not agree on the death penalty, and the court sentenced Stallings to five consecutive hard-50 life sentences on the capital murder convictions.
When Stallings appealed his convictions, the State cross-appealed on the issue of whether a defendant has a right to allocution before the jury during the death penalty phase of a capital murder trial. The State does not challenge Stallings' sentencing but rather proceeds upon a question reserved as a matter of statewide interest pursuant to K.S.A. 2006 Supp. 22-3602(b)(3). Stallings subsequently withdrew his appeal, leaving the State's cross-appeal as the only matter currently before us. Based on our statutory law, we sustain the State's cross-appeal.
In Kansas, allocution in general is governed by statute. See K.S.A. 22-3422; K.S.A. 22-3424(e). Likewise, the unique sentencing scheme in a death penalty case, which utilizes a jury, is a creature of statute. See K.S.A. 2006 Supp. 21-4624. Interpreting the interplay among the sentencing statutes involves a de novo standard of review. See State v. Kleypas, 272 Kan. 894, 977, 40 P.3d 139 (2001) (statutory interpretation subject to de novo review). Moreover, Stallings' constitutional argument does not restrict our review standard.
We are guided by well-established rules of statutory construction. The most fundamental rule is that we should ascertain the legislature's intent through the statutory language it employs, giving ordinary words their ordinary meaning. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). When a statute is plain and unambiguous, we are charged with the responsibility to give effect to the legislature's expressed intent, resisting the temptation to determine what the law should or should not be. Bryan, 281 Kan. at 159.
Generally, criminal statutes are strictly construed in favor of the accused, and any reasonable doubt about the meaning is decided in favor of the person subjected to the criminal statute. Kleypas, 272 Kan. at 977-78. However, this strict construction rule "'is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.'" State v. McCurry, 279 Kan. 118, 121, 105 P.3d 1247 (2005) (quoting State v. Cox, 258 Kan. 557, Syl. ¶ 7, 908 P.2d 603 ).
When several provisions apply to a topic, they "'must be construed together with a view of reconciling and bringing them into workable harmony if possible.'" Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 89, 106 P.3d 492 (2005) (quoting State v. Huff, 277 Kan. 195, 203, 83 P.3d 206 ). If the constitutionality of a statute is challenged, we start with a presumption of validity and look for any reasonable way to construe the statute as constitutionally valid. State v. Brown, 280 Kan. 898, 899, 127 P.3d 257 (2006).
The Kansas Code of Criminal Procedure addresses a criminal defendant's general right to allocution in two statutes. The first, K.S.A. 22-3422, entitled "Allocution," states:
"When the defendant appears for judgment, he must be informed by the court of the verdict of the jury, or the finding of the court and asked whether he has any legal cause to show why judgment should not be rendered. If none is shown the court shall pronounce judgment against the defendant." (Emphasis added.)
The second pertinent statutory provision, K.S.A. 22-3424(e), recites:
"Before imposing sentence the court shall: (1) Allow the prosecuting attorney to address the court, if the prosecuting attorney so requests; (2) afford counsel an opportunity to speak on behalf of the defendant; (3) allow the victim or such members of the victim's family as the court deems appropriate to address the court, if the victim or the victim's family so requests; and (4) address the defendant personally and ask the defendant if the defendant wishes to make a statement on the defendant's own behalf and to present any evidence in mitigation of punishment." (Emphasis added.)
Those general sentencing statutes, which predate our current death penalty laws, clearly state that the defendant has the right to address the court, i.e., the sentencing judge. The obvious reason for providing that the defendant direct his or her remarks to the court is that in non-capital cases the judge decides the sentence to be imposed without any input from the jury.
In contrast, the legislature created a separate jury sentencing procedure for capital murder cases in which the State is seeking the death penalty. K.S.A. 2006 Supp. 21-4624. If a defendant is charged with capital murder, the prosecutor must file a written notice of the State's intent to seek the death penalty. K.S.A. 2006 Supp. 21-4624(a). If a defendant who is at least 18 years old and not mentally retarded is convicted of capital murder, the State can move for a separate sentencing proceeding before a jury to determine whether the defendant shall be sentenced to death. K.S.A. 2006 Supp. 21-4624(b). In that separate proceeding, any evidence the court deems relevant, regardless of admissibility under the rules of evidence, may be presented, including matters related to the aggravating circumstances of K.S.A. 21-4625, which the State has previously identified, and any mitigating circumstances; no testimony by the defendant shall be admissible at any subsequent criminal proceeding. K.S.A. 2006 Supp. 21-4624(c). At the conclusion of the evidence, the district court is to provide the jury with oral and written instructions to guide its deliberations. K.S.A. 2006 Supp. 21-4624(d).
"If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. 21-4625 and amendments thereto exist and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist, the ...