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State v. Cheever

Supreme Court of Kansas

July 20, 2017

State of Kansas, Appellee,
v.
Scott D. Cheever, Appellant.

          Modified opinion on remand filed July 20, 2017.

         SYLLABUS

         1. Defendants who testify on their own behalf open themselves not only to cross-examination but also to rebuttal testimony concerning both the substance of their testimony and their credibility.

         2. Retroactive application of K.S.A. 2013 Supp. 21-5402(d) excluding felony murder as a lesser included offense of capital murder in a capital case does not violate a capital defendant's due process rights or the constitutional prohibition against ex post facto laws.

          3. Appellate issues and arguments supporting them must be advanced initially in a brief. A motion is an inappropriate vehicle to raise or argue an appellate issue for the first time.

         4. 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 proved beyond a reasonable doubt.

         5. K.S.A. 21-4624(e) provides greater protection to a death-eligible defendant than required by the federal Constitution. In Kansas, a capital jury must be instructed that mitigating circumstances need not be proved beyond a reasonable doubt. Under the facts of this case and the applicable standard of review, the district court's failure to instruct the jury about the burden of proof on mitigators was not clearly erroneous.

         6. K.S.A. 2015 Supp. 21-6619(b) imposes a mandatory exception in death penalty appeals to various statutes, rules, and prudential practices barring consideration of unpreserved issues.

         7. A party cannot raise a challenge to the constitutionality of a statute if the claimed defect does not apply to that party.

          8. Standing is a component of the case-or-controversy limitation on judicial power under the doctrine of separation of powers.

         9. Because the Kansas Constitution's framework limits the judicial power to actual cases and controversies, Kansas courts do not have the power to give advisory opinions.

         10. To meet the case-or-controversy requirement, a party must have standing; the issue cannot be moot; the issue must be ripe; and the issue cannot present a political question.

         11. The standing requirement is a constitutional limitation on this court's power.

         12. Under the Sixth and Fourteenth Amendments to the United States Constitution, a defendant in a capital criminal case has a right to an impartial jury.

         13. A juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the court's instructions require.

         14. The proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment is whether the juror's views would prevent or substantially impair the performance of his or her duties as a juror in accordance with the court's instructions and the juror's oath.

         15. It is the duty of a trial court to see that a jury of competent, fair, and impartial persons is impaneled.

         16. K.S.A. 22-3410(2)(i) provides that a prospective juror may be challenged for cause when his or her state of mind with reference to the case or parties prevents the juror from acting impartially and without prejudice to the substantial rights of any party.

         17. Because only the district court is in a position to view the demeanor of prospective jurors during voir dire, a district court's ruling on a challenge for cause will not be disturbed on appeal unless it is clearly erroneous or amounts to an abuse of discretion.

         18. When a defendant appeals a strike for cause of a panel member prompted by the prospective juror's opinion on the death penalty, the question before the appellate court is not whether it would have agreed with a district judge's decision but whether the district judge's decision is fairly supported by the record.

         19. An impartial jury consists of jurors who will conscientiously find the facts and apply the law.

          20. Section 7 of the Kansas Constitution Bill of Rights provides no greater protection than that provided by K.S.A. 43-156.

         21. Prospective jurors cannot be discriminated against on the basis of their religious belief or lack of belief, but they can be excluded from jury service when their belief or nonbelief makes it impossible for them to act impartially under the rule of law.

         22. The Eighth Amendment of the United States Constitution prohibits giving the jury misleading information that minimizes its role in the death penalty process.

         23. A trial court should avoid any mention of a defendant's right to appeal.

         24. Judicial comments that are not instructions to the jury are reviewed on appeal under judicial misconduct standards.

         25. In cases alleging judicial misconduct, the court's standard of review is unlimited. It must look to the particular facts and circumstances of the case. The question is whether the defendant's substantial rights to a fair trial were prejudiced by the district judge's statements. The defendant bears the burden of showing his or her substantial rights were prejudiced.

          26. Capital defendants are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. A defendant's age of at least 18 years old at the time of the crime is a fact necessary to the defendant's eligibility for the death penalty in Kansas, and proof of that fact is therefore within the scope of protection provided under the Sixth Amendment to the United States Constitution.

         27. Harmless error analysis applies to error in omitting an element of a defendant's age from jury instructions.

         28. Under K.S.A. 21-4624(c), any evidence relevant to the question of sentence that the court deems to have probative value may be received, regardless of its admissibility under the rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements.

         29. The standard of review and the ultimate question that must be answered with regard to whether prosecutorial misconduct in the penalty phase of a capital trial was harmless is whether the court is able to find beyond a reasonable doubt that the prosecutorial misconduct, viewed in the light of the record as a whole, had little, if any, likelihood of changing the jury's ultimate conclusion on the weight of aggravating and mitigating circumstances. The overwhelming nature of the evidence is a factor to be considered, although its impact is limited.

          30. When considering a claim that cumulative error infected the penalty-phase proceeding, this court must consider whether it is able to find that the total cumulative effect of the errors, viewed in the light of the record as a whole, had little, if any, likelihood of changing the jury's ultimate conclusion regarding the weight of the aggravating and mitigating circumstances. The degree of certainty by which this court must be persuaded turns on whether any of the errors infringe upon a right guaranteed by the United States Constitution. The overwhelming nature of the evidence is a factor to be considered, although its impact is limited. The question before this court is not what effect the cumulative error generally might be expected to have upon a reasonable jury but, rather, what effect it had upon the actual sentencing determination in the case on review.

         31. Although certain guilt-phase errors may 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.

         Appeal from Greenwood District Court; Michael E. Ward, judge.

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

          Stephen R. McAllister, solicitor general, argued the cause, and Kristafer R. Ailslieger, deputy solicitor general, Clay Britton, assistant solicitor general, Steve Six, former attorney general, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

          Stephen Douglas Bonney, of ACLU Foundation of Kansas, of Kansas City, Missouri, and Catherine M.A. Carroll and Albinas J. Prizgintas, of Wilmer Cutler Pickering Hale and Dorr LLP, of Washington, D.C., were on the brief for amici curiae American Civil Liberties Union and ACLU Foundation of Kansas.

          MODIFIED OPINION [1]

          Rosen, J.

         This case comes before us after the United States Supreme Court vacated our decision in State v. Cheever, 295 Kan. 229, 284 P.3d 1007 (2012), vacated and remanded 571 U.S.__, 134 S.Ct. 596, 187 L.Ed.2d 519 (2013), and remanded for further proceedings.

         In our decision, we had held that defendant Scott D. Cheever did not waive his privilege against self-incrimination under the Fifth Amendment to the United States Constitution by presenting a voluntary intoxication defense to the capital murder charges against him. 295 Kan. at 251. The United States Supreme Court disagreed and held that the rebuttal testimony presented by the State in the form of the expert opinion of Dr. Michael Welner was admissible. Kansas v. Cheever, 571 U.S.__, 134 S.Ct. 596, 602, 187 L.Ed.2d 519 (2013). As the Court noted, because we had ruled that Welner should not have been allowed to testify at all, we did not consider whether the testimony he gave exceeded the scope of rebuttal allowed by the Fifth Amendment or by Kansas evidentiary rules; and the Court did not address the issue. 134 S.Ct. at 603.

         On remand, we asked the parties to address the scope-of-rebuttal issue. Briefs were received and arguments heard. After consideration, we hold that Welner's testimony, while questionable in form, did not, in substance, exceed the proper scope of rebuttal, either constitutionally or under state evidentiary rules. We further hold that none of the remaining issues raised on appeal require reversal or remand, and, accordingly, we affirm Cheever's convictions and sentences.

          The facts of this case were set out at length in our earlier decision, Cheever, 295 Kan. at 235-40, and we therefore add facts only as necessary to our analysis of the issues.

         Appellate proceedings in this case followed Cheever's conviction of one count of capital murder for the killing of Greenwood County Sheriff Matthew Samuels and four counts of attempted capital murder for firing at other law enforcement officers. Direct appeal to this court was automatic because the jury had sentenced Cheever to death on the capital offense. See K.S.A. 21-4627(a).

         Guilt Phase

         Proper Rebuttal Testimony

         Cheever's objections to the content of Welner's testimony revolve primarily around Welner's statement that Cheever emulated an outlaw lifestyle and his alleged implication that Cheever had an antisocial personality disorder. Taking as our standard both the guidance set out in the United States Supreme Court's decision and our own oft-stated rubric for reviewing challenges regarding the appropriate scope of rebuttal, see, e.g., State v. Sitlington, 291 Kan. 458, 464, 241 P.3d 1003 (2010) (trial judge has broad discretion in determining use, extent of relevant evidence in rebuttal), we hold that the trial judge's admission of Welner's testimony was within the broad discretion granted him.

         First, and significantly, our measure of the appropriate scope of rebuttal in this case must take into account not just the testimony presented by Cheever's expert on the topic of his methamphetamine intoxication, but also Cheever's own testimony concerning his past use of the drug and the events leading to and constituting the crimes. Much of Welner's testimony concerning details of the crimes, and Cheever's actions constituting them, was responsive to Cheever's own testimony. Having taken the stand, Cheever opened himself to rebuttal testimony just as he opened himself to cross-examination concerning both the substance of his testimony and his credibility as a witness. Cheever, 134 S.Ct. at 601.

         But concluding that Welner's testimony was responsive in and of itself does not insulate the testimony from appellate scrutiny if the testimony was otherwise inadmissible. Cf. State v. Everett, 296 Kan. 1039, 1045, 297 P.3d 292 (2013) (evidence admitted in rebuttal to other evidence under an "'open the door'" rule is not an exception permitting evidence of other crimes or civil wrongs to be admitted independent of K.S.A. 60-455); State v. Cosby, 285 Kan. 230, 248-49, 169 P.3d 1128 (2007) (K.S.A. 60-447[b] applies to rebuttal evidence). Generally, a defendant does not put his or her character "truly in issue" simply by asserting an intoxication defense. State v. Bowers, 218 Kan. 736, 737, 545 P.2d 303 (1976); cf. State v. Mader, 261 Kan. 280, 283, 931 P.2d 1247 (1997) (when defendant relies upon self-defense, his or her attempt to prove victim was aggressor does not, standing alone, place character of victim in issue). And K.S.A. 60-447(b)(ii) provides that "evidence of a trait of an accused's character[, ] . . . if offered by the prosecution to prove guilt, may be admitted only after the accused has introduced evidence of his or her good character." (Emphasis added.)

         Characterizing portions of Welner's testimony as bad character evidence, Cheever argues that the testimony was inadmissible under K.S.A. 60-447(b)(ii) because he never introduced any evidence of his good character. The State appears to concede that Cheever did not introduce evidence of his good character, but it responds that Cheever "opened the door" to the complained-of testimony. The State asserts that Cheever and his expert both testified on the same or similar points addressed by Welner.

          We believe the State was too hasty in conceding that Cheever did not introduce evidence of his good character. If he did so, the State's defense of this point with its open-the-door argument is unnecessary. In our view, Cheever downplays his own direct testimony unconvincingly. During direct, Cheever discussed two letters that he wrote shortly after the shooting death of Samuels. In the letters, which the State admitted without objection during its case-in-chief and to which Cheever continues to have no objection on appeal, Cheever wrote to two individuals-Nathan Fife and Crystal Mackey. The bulk of each letter is braggadocio, in which Cheever tells a glorified version of the circumstances surrounding the shooting and his arrest. The letters include multiple damning admissions. He admits that he intentionally waited hours for "the cops" to arrive and that he "blew [Samuels] back down the stairs" with a .44 Magnum pistol. In the course of these recitations, Cheever makes fleeting reference to being an "outlaw until they bury me" and to his willingness to "do it again in a heartbeat."

In Cheever's letter to Fife, he bragged:
"What's up my boy? Yeah I fucked up big time! It was fucking intense though. I'd do it again in a heartbeat. . . . I had a Super Blackhawk [.]44 mag and a [.]22 competition target pistol! . . . They shot 4 teargas things in there and that wasn't shit so they came piling in. I blew the first one back down the stairs, and the second one but that was all the [.]44 shells I had left on me . . . . I'm pretty much fucked! Fuck 'em, I'm still an outlaw until they bury me.
". . . Slates out there being a straight bitch. I was going to burn him [and] Carol out of Virgil but I had to shoot the sheriff instead!"
To Mackey, Cheever wrote:
"Anyways, [Billy] tried to get a front and call the cops (or get the cops called) thinking I'd just roll over and take it. I seen that shit coming for 5 hrs!!! But I said fuck it . . . gonna have to shoot me. Pussies couldn't aim too good though so here I am! Stuck like Chuck! Damn it was intense Mackey. . . .
". . . And they wonder why a fucking young crankster gangster tends to snap every once in a while."

         The State authenticated the letters through Fife and Mackey and introduced the letters without further embellishment.

         Once Cheever was on the stand, during his direct examination, the following exchange occurred between him and his lawyer:

"[Defense counsel]: This letter to Fife, Scott, it's a horrible letter.
"[Cheever]: Yeah.
"[Defense counsel]: You see that now?
"[Cheever]: Yeah. (Nods head.)
"[Defense counsel]: The person that wrote this letter I think could be accurately termed a monster.
"[Cheever]: Yeah.
"[Defense counsel]: Would you disagree with that?
"[Cheever]: I seen it then, too. I mean, I was even told by my attorneys at that time, I think even you told me back then, 'Don't be writing no letters, don't be doing anything.' And I just, I mean, at that time, I mean, I was at the bottom. I mean, I'm not thinking about any of that. I don't even care, I mean, what the repercussions would be. I'm just trying to show off for my buddy, you know, I mean.
"[Defense counsel]: You don't even care what? I didn't hear that.
"[Cheever]: About anything. I'm not thinking about how any of the Samuels feel, I'm not thinking about my family, I'm not thinking about myself. It's just crazy, crazy time.
"[Defense counsel]: The letter to Crystal?
"[Cheever]: Yeah, same deal.
"[Defense counsel]: Not much better.
"[Cheever]: No, just putting on that persona, playing that role. I mean-
"[Defense counsel]: What role?
"[Cheever]: Just how everybody in that area is, I mean, in that type of community just everybody's drug addicts, and just-just I don't know, showing off for 'em, I guess.
"[Defense counsel]: Are you sorry you wrote those letters now?
"[Cheever]: Yeah. Basically yeah. (Nods head.)
"[Defense counsel]: 'Cause they make you look bad?
"[Cheever]: No. Just it's bad, I mean, the whole dialogue-
"[Defense counsel]: Sorry that somebody found 'em and you got caught?
"[Cheever]: No. I mean, just for my family, for the Samuels family, just the whole deal. They look at that person, and I don't know, it's real hard to hate that person- or real easy to hate that person. And just it's not good to be like that, I mean, I can't really explain it.
. . . .
"[Defense counsel]: The letter that you wrote to Fife, you don't seem sorry as to what's happened to Sheriff Samuels, you don't seem sorry-
"[Cheever]: No.
"[Defense counsel]: -for killing him in that letter. Is that accurate?
"[Cheever]: No.
"[Defense counsel]: You didn't seem sorry?
"[Cheever]: At that time, no, I didn't even think about it. I wasn't thinking about nothing, except-
"[Defense counsel]: You don't seem very broken up in the letter ...

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