Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Gleason

Supreme Court of Kansas

February 3, 2017

State of Kansas, Appellee,
v.
Sidney J. Gleason, Appellant.

         SYLLABUS BY THE COURT

         1. This court's decision in State v. Gleason, 299 Kan. 1127, 329 P.3d 1102');">329 P.3d 1102 (2014) (Gleason I), rev'd and remanded sub nom. Kansas v. Carr, 577 U.S. ___, 136 S.Ct. 633, 193 L.Ed.2d 535 (2016), was based on jurisprudence founded on the Eighth Amendment to the United States Constitution as it relates to the holding regarding instructions on mitigating circumstances. No state law questions were presented as to that holding.

         2. K.S.A. 2015 Supp. 21-6619(b) mandates that the Kansas Supreme Court shall consider any errors asserted in the review and appeal of a death penalty case.

         3. The Eighth Amendment to the United States Constitution does not require the district court to instruct a capital jury that mitigating circumstances need not be proven beyond a reasonable doubt.

         4. K.S.A. 21-4624(e) provides greater protection to a death-eligible defendant than that required by the federal Constitution. Accordingly, a capital jury in Kansas must be instructed that mitigating circumstances need not be proven beyond a reasonable doubt.

         5. A party cannot raise a challenge to a statute's constitutionality if the claimed defect does not apply to that party.

         6. Under § 9 of the Kansas Constitution Bill of Rights, challenges asserting that a punishment is categorically disproportionate are limited to term-of-years sentences.

         7. A criminal defendant does not have a liberty interest in having a jury instructed in accord with an overruled interpretation of a provision of law.

         8. Although certain guilt-phase errors do not individually or collectively require reversal of a conviction, those errors may be so compelling that they affect a sentencing determination when the same jury has decided both guilt and sentence.

         9. A claim of cumulative error in the penalty phase of a death penalty appeal is reviewed using a two-step analysis. First, we determine if any guilt-phase errors must be considered in conjunction with the penalty-phase errors. Second, we must decide if the total cumulative effect of the errors, viewed in the light of the record as a whole, had no reasonable possibility of changing the jury's ultimate conclusion regarding the weight of the aggravating and mitigating circumstances. The overwhelming nature of the evidence is a factor to be considered in making this determination, but its impact is limited. The question is not what effect the error might generally be expected to have upon a reasonable jury but, rather, what effect it had upon the actual sentencing determination in the case on review.

         Appeal from Barton District Court; Hannelore Kitts, judge. Affirmed.

          Sarah Ellen Johnson, of Capital Appellate Defender Office, and Meryl Carver-Allmond and Rebecca E. Woodman, of the same office, were on the briefs for appellant.

          Kristafer R. Ailslieger, deputy solicitor general, and Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, were on the briefs for appellee.

          OPINION

          Biles, J.

         This case returns after the United States Supreme Court reversed and remanded our penalty-phase determination in State v. Gleason, 299 Kan. 1127, 329 P.3d 1102');">329 P.3d 1102 (2014) (Gleason I), rev'd and remanded sub nom. Kansas v. Carr, 577 U.S., 136 S.Ct. 633, 193 L.Ed.2d 535 (2016). That requires us to address the unresolved penalty-phase issues from Sidney J. Gleason's capital murder trial. As explained, Gleason is not entitled to relief on those issues, so we affirm his death sentence.

         Factual and Procedural Background

         A jury convicted Gleason of capital murder for the killings of Darren Wornkey and his girlfriend, Mikiala "Miki" Martinez, as well as premeditated first-degree murder for killing Wornkey, aggravated kidnapping, aggravated robbery, and criminal possession of a firearm. In a separate penalty phase, the same jury sentenced Gleason to death for the capital offense. See K.S.A. 21-3439(a)(6) (defining capital murder as the "intentional and premediated 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").

         These crimes were more fully detailed in our earlier decision. See Gleason I, 299 Kan. at 1134-46. As explained there, Gleason and Damien Thompson were involved with Martinez in an aggravated robbery. Fearing that Martinez was talking with law enforcement about the robbery, Gleason and Thompson tried to intimidate her. In doing so, Gleason shot and killed Wornkey. A short time later, Thompson shot and killed Martinez. After their arrests, Thompson agreed to plead guilty to the first-degree murder of Martinez, disclose the location of her body, and testify against Gleason. In return, the State agreed to recommend certain sentencing terms and dismiss the remaining charges against Thompson. This resulted in Thompson receiving a sentence of life imprisonment with no possibility of parole for 25 years.

         Gleason appealed his convictions and death sentence. A divided court affirmed Gleason's convictions of capital murder, aggravated kidnapping, aggravated robbery, and criminal possession of a firearm. 299 Kan. at 1184. Also by a divided vote, the court vacated Gleason's death sentence, holding that the Eighth Amendment to the United States Constitution required informing Gleason's jury that mitigating circumstances need not be proven beyond a reasonable doubt. 299 Kan. at 1197.

         On certiorari to the United States Supreme Court, the Court reversed and remanded with one dissent. The Court held the Eighth Amendment did not require Kansas juries in a death penalty case to be advised the defendant was not required to prove mitigating circumstances beyond a reasonable doubt. Carr, 136 S.Ct. at 642 ("[O]ur case law does not require capital sentencing courts 'to affirmatively inform the jury that mitigating circumstances need not be proved beyond a reasonable doubt.'"). Gleason's case returned to this court for further proceedings because there were unresolved penalty-phase issues. See 136 S.Ct. at 646 (remanding case); Gleason I, 299 Kan. at 1199 (declining to address Gleason's remaining challenges to sentence after concluding jury instruction issue was dispositive).

         Shortly after that, Gleason filed a motion, asking us to affirm our original holding about the burden-of-proof instruction for mitigating factors on the basis of state law. He also moved for supplemental briefing. The State opposed both motions. We invited further briefing at the parties' option. We also asked if additional oral argument was necessary.

         Gleason submitted a supplemental brief on some unresolved issues and adopted by reference his earlier arguments as to others. The State advised more briefing was unnecessary, arguing there was no new controlling authority since Gleason I. The State also opposed further oral argument. Gleason did not explicitly request oral argument or contend it would be beneficial. He only stated he would "welcome the opportunity" to address the court.

         It should be noted we considered sua sponte revisiting the trial errors rejected by the Gleason I majority, particularly the claim that the district court violated Gleason's constitutional right to confront the witnesses against him and the related question whether the district court erred by not declaring a mistrial after a witness was declared unavailable to testify at trial. This sua sponte consideration occurred in the context of addressing the dissents' arguments below. Ultimately, a majority of the court determined revisiting these questions was inappropriate given Gleason's failure on remand to request reconsideration and because no exception to the law of the case doctrine was applicable. See State v. Kleypas, 305 Kan. 224, 245, 382 P.3d 373 (2016) (Kleypas II) (applying law of the case doctrine in death penalty case and noting only three exceptions to that doctrine: [1] a subsequent trial produces substantially different evidence, [2] a controlling authority has made a contrary decision regarding the law applicable to the issues, or [3] the prior decision was clearly erroneous and would work a manifest injustice).

         Accordingly, the outstanding issues are: (1) whether it was reversible error under state law not to instruct jurors that mitigating circumstances need to be proven only to the individual juror's satisfaction and not beyond a reasonable doubt; (2) whether the death penalty is unconstitutionally disproportionate under § 9 of the Kansas Constitution Bill of Rights as applied to an offender category to which Gleason claims to belong, namely "non-triggerman" accomplices; (3) whether Gleason's death sentence is unconstitutionally disproportionate in comparison to his accomplice's sentence; (4) whether Gleason's death sentence is contrary to the aiding and abetting statute, K.S.A. 21-3205; (5) whether the district court erred in giving a pre-Kleypas I instruction about the weighing equation under K.S.A. 21-4624(e); (6) whether the district court committed clear error when instructing the jury about the sentence Gleason would receive if the jury decided not to impose the death penalty; (7) whether the penalty-phase verdict forms protected Gleason's right to be free from double jeopardy; and (8) whether any cumulative error requires reversal of the death sentence.

         After conducting our own research and fully considering the original and supplemental briefs, we conclude further oral argument is unnecessary. As explained, we hold the remaining issues do not warrant reversal or remand.

         The Jury Instruction on Mitigation

         In his motion for a ruling under state law, Gleason argued we should affirm our prior holding that the district court's failure to provide an affirmative instruction that mitigating factors need not be proven beyond a reasonable doubt required vacating his death sentence. But a motion requesting a specific holding from this court is unusual. And to the extent Gleason advanced a new claim in this motion, he chose the "wrong procedural vehicle to obtain his requested relief." State v. Cheever, 304 Kan. 866, 875-76, 375 P.3d 979 (2016) (Cheever II) (motion practice cannot be used as end run around rules of appellate procedure). Accordingly, we deny Gleason's motion, although that does not end the question.

         We note Gleason's motion was coupled with a motion for supplemental briefing, which we granted. And K.S.A. 2015 Supp. 21-6619(b) requires this court in death penalty cases to "consider . . . any errors asserted in the review and appeal" and authorizes us to notice unassigned errors if doing so serves the "ends of justice." So based on the relevant statute and the unique circumstances of this case, we will treat Gleason's arguments as if they had been raised in his supplemental brief. See Cheever II, 304 Kan. at 876-77 (holding that although Cheever chose "the wrong procedural vehicle to obtain his requested relief" the issue would be considered because this is a death penalty case and K.S.A. 2015 Supp. 21-6619 applies).

         Gleason first argues the state law references in our 2014 decision were central to the outcome, overturning his death sentence due to the absence of a burden of proof explanation for the mitigation instruction. He contends Gleason I's holding on this point was based "on issues unique to Kansas state law, " rather than the Eighth Amendment. The upshot, he asserts, is that the United States Supreme Court's decision reversing Gleason I is not binding and that we are free to ignore it.

         But this disregards both Gleason's previous arguments in Gleason I and what we said when deciding the case. Gleason's original brief declared: "[T]he specific question is whether the instruction prevented the jury from giving proper consideration to mitigating circumstances, as is required by the Eighth and Fourteenth Amendments." (Emphasis added.) Similarly, Gleason's conclusion repeated that the jury was precluded "from giving proper consideration to mitigating circumstances in determining the appropriate sentence for Sidney Gleason, in violation of the Eighth and Fourteenth Amendments." (Emphasis added.) Without question, Gleason did not present a state law basis in his original briefing when arguing for reversal based on the mitigation instruction.

         Just as plainly, there is no credence to his contention that our 2014 decision was grounded in state law. We rejected this identical argument in Cheever II. We held Gleason I and two other cases addressing the same issue "were framed as federal constitutional claims." 304 Kan. at 883. Likewise, we reject Gleason's contention now that our rationale rested on state law. The United States Supreme Court's decision cannot be ignored or treated as nonbinding. It is part of the law of this case with respect to Gleason's federal constitutional claim. See 304 Kan. at 878 (holding Kansas v. Carr forecloses any relief under Eighth Amendment on failure to provide a burden of proof instruction to accompany the mitigating circumstances instruction).

         Gleason argues in the alternative that, even if our original holding was based on Eighth Amendment jurisprudence, state law nonetheless requires an affirmative instruction informing a penalty-phase jury that mitigating factors need not be proven beyond a reasonable doubt. We agree. We recently considered the issue and held the trial court's failure to give such an instruction was error under state law. See Cheever II, 304 Kan. at 886. In that case, we first noted K.S.A. 21-4624(e) states:

"'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 defendant shall be sentenced to death; otherwise, the defendant shall be sentenced to life without the possibility of parole. The jury, if its verdict is a unanimous recommendation of a sentence of death, shall designate in writing, signed by the foreman of the jury, the statutory aggravating circumstances which it found beyond a reasonable doubt. If, after a reasonable time for deliberation, the jury is unable to reach a verdict, the judge shall dismiss the jury and impose a sentence of life without the possibility of parole and shall commit the defendant to the custody of the secretary of corrections.'" 304 Kan. at 879.

         We further observed: "K.S.A. 21-4624(e) provides greater protection to a death-eligible defendant than that required by the federal Constitution, i.e., the defendant has only a burden of production in establishing mitigating circumstances." 304 Kan. at 883. And then we concluded:

"In enacting K.S.A. 21-4624(e), the Kansas Legislature endowed capital defendants with protection above that of the federal constitutional floor with respect to the burden of proof to establish mitigating circumstances. This greater protection is a matter of state law outside the purview of the United States Supreme Court." 304 Kan. at 883-84.

         We then applied our well known multi-step process for considering claims of jury instruction error when there was no objection. Cheever II, 304 Kan. at 884-85 (two-part test); see K.S.A. 22-3414(3) (no party may assert instructional error unless that party objected before the jury retires, stating the grounds for the objection, unless the instruction or failure to give it is clearly erroneous); State v. Robinson, 303 Kan. 11, 282, 363 P.3d 875 (2015) (holding "two-part test" requires appellate court to determine [1] whether subject instruction legally and factually appropriate and [2] assess whether court is firmly convinced jury would have reached different verdict had instruction error not occurred); State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012) (clarifying how review of jury instruction issues fits within the structure of the typical appellate process).

         We held an instruction that mitigating circumstances need not be proven beyond a reasonable doubt was both legally and factually appropriate, so it was error for the trial court not to give it. 304 Kan. at 885-86. The instruction was legally appropriate because of K.S.A. 21-4624(e)'s greater protections. 304 Kan. at 885 ("By necessary implication, [K.S.A. 21-4624(e)] evidences the legislature's intent that a capital penalty phase jury be instructed that mitigating circumstances need to be proved only to the satisfaction of the individual juror in the juror's sentencing decision and not beyond a reasonable doubt."). And it was factually appropriate because Cheever offered evidence of mitigating factors and because "mercy itself may be considered a mitigating factor . . . ." 304 Kan. at 885. We then proceeded to the next analytical step-deciding whether failure to give the instruction was reversible, i.e., clearly erroneous, because Cheever did not request the instruction or object to the one given. 304 Kan. at 886.

         The same analysis used in Cheever II leading up to the determination of error under the first analytical step is equally applicable in Gleason's case. We hold that an instruction on the burden of proof explaining that mitigating circumstances need not be proven beyond a reasonable doubt was legally and factually appropriate in Gleason's case under state law. Accordingly, it was error for the district court not to give the instruction. And because Gleason did not request the instruction, we next consider whether the failure to instruct was clearly erroneous, i.e., whether we are firmly convinced the jury would have reached a different verdict absent the error. As explained, we hold there was no clear error.

         The Gleason I court reviewed the sufficiency of the evidence supporting the aggravating factors the jury found in imposing the death penalty. See K.S.A. 2015 Supp. 21-6619(c) (providing supreme court "shall determine . . . whether the evidence supports the findings that an aggravating circumstance or circumstances existed"). The State alleged four statutory aggravating circumstances, each of which the jury found: (1) Gleason was previously convicted of a felony in which he inflicted great bodily harm, disfigurement, or death on another; (2) Gleason knowingly or purposely killed or created a great risk of death to more than one person; (3) Gleason committed the crime in order to avoid or prevent his lawful arrest or prosecution; and (4) Martinez was killed because she was a prospective witness against Gleason. See K.S.A. 21-4625 (listing aggravating circumstances).

         The standard of review the Gleason I court applied was whether, after studying all the evidence and viewing it in the light most favorable to the prosecution, the court was convinced a rational factfinder could have found the existence of the alleged aggravating circumstance beyond a reasonable doubt. 299 Kan. at 1189. The court concluded sufficient evidence supported all four aggravating circumstances, explaining:

"Regarding the avoid arrest and victim witness aggravators, the evidence established that Gleason, Thompson, Galindo, Fulton, and Martinez robbed Elliott on February 12, 2004. After the robbery, Gleason and Thompson, collectively and individually, threatened their accomplices to discourage them from talking to the police about the robbery. Later, Gleason and Thompson learned that Martinez and Fulton had talked to the police and, 9 days after the robbery, Gleason and Thompson killed Martinez and Wornkey. We are convinced that a rational factfinder could have found beyond a reasonable doubt both that Gleason killed Martinez to avoid arrest or prosecution for the Elliott robbery and that Martinez was killed because she was a prospective witness against Gleason regarding the Elliott robbery. Further, we note that because Martinez witnessed Wornkey's murder, it also would have been reasonable for the jury to conclude that Gleason killed Martinez to avoid arrest or prosecution for killing Wornkey and that Martinez was killed because she was a prospective witness against Gleason regarding Wornkey's murder.
"Gleason challenges the sufficiency of the evidence to support the risk of death aggravator by incorporating his previous argument regarding the State's alleged failure to prove the murders of Wornkey and Martinez were committed as '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.' We rejected that argument in the guilt phase portion of this opinion because the State's evidence clearly established the requisite connection between the two murders. This same evidence supports the jury's finding that Gleason 'knowingly or purposely killed . . . more than one person.' See K.S.A. 21-4625(2).
"Finally, the evidence clearly supports that Gleason previously had been convicted of a felony in which he inflicted great bodily harm, disfigurement, dismemberment, or death on another. See K.S.A. 21-4625(1). Agent Latham testified Gleason was convicted of attempted voluntary manslaughter in 2001 and that at the time of Gleason's trial in this case, the victim of that crime still had a bullet lodged in his chest, had significant scars from three gunshot wounds, and had a surgical scar from the removal of a bullet from his hip." 299 Kan. at 1189-90.

         Against the State's alleged statutory aggravating circumstances, Gleason claimed as mitigating circumstances: (1) His capacity to appreciate the criminality of his conduct was impaired; (2) he was relatively young-24 years old at the time of the crime; (3) the public would be adequately protected if he were given a term of imprisonment; (4) he had an accomplice who significantly participated in planning and committing the crimes; (5) his accomplice received only a life sentence with eligibility for parole in 25 years; (6) he lacked contact with his mother in his early years because she was in jail; (7) he and his siblings were all in jail at the time of sentencing; (8) he was obedient and an excellent student when he lived with his great aunt; and (9) his family loved him.

         On remand, Gleason argues we must reverse his death sentence because we cannot presume an instructional error of this type "did not sway the vote of a single juror." Therefore, the argument continues, we cannot be firmly convinced the verdict would have been the same had the proper instruction been given.

         But our task on appeal is stated differently. To find clear error, the court must be firmly convinced the jury would have reached a different verdict absent the instructional error. This inquiry requires us to review and consider the complete record on appeal to determine the error's impact. Cheever II, 304 Kan. at 886-87. We have done that in Gleason's cases by independently reviewing the record on appeal in full, including the penalty-phase proceedings. We found nothing suggesting there would have been a different verdict had the jury been instructed properly.

         Gleason's mother, great aunt, brothers, and childhood pastor testified to the mitigating circumstances. There was little, if any, dispute about the facts establishing their existence. As to this ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.