Modified opinion on remand filed July 20, 2017.
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
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.
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
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
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.
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
party cannot raise a challenge to the constitutionality of a
statute if the claimed defect does not apply to that party.
Standing is a component of the case-or-controversy limitation
on judicial power under the doctrine of separation of powers.
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.
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.
standing requirement is a constitutional limitation on this
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.
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.
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.
is the duty of a trial court to see that a jury of competent,
fair, and impartial persons is impaneled.
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.
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.
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.
impartial jury consists of jurors who will conscientiously
find the facts and apply the law.
Section 7 of the Kansas Constitution Bill of Rights provides
no greater protection than that provided by K.S.A. 43-156.
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.
Eighth Amendment of the United States Constitution prohibits
giving the jury misleading information that minimizes its
role in the death penalty process.
trial court should avoid any mention of a defendant's
right to appeal.
Judicial comments that are not instructions to the jury are
reviewed on appeal under judicial misconduct standards.
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.
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.
Harmless error analysis applies to error in omitting an
element of a defendant's age from jury instructions.
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.
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
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.
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
from Greenwood District Court; Michael E. Ward, judge.
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 
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.
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.
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
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
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
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.
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.
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."
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.
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
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
". . . 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."
State authenticated the letters through Fife and Mackey and
introduced the letters without further embellishment.
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.
"[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.
"[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
"[Defense counsel]: Are you sorry you wrote those
"[Cheever]: Yeah. Basically yeah. (Nods head.)
"[Defense counsel]: 'Cause they make you look bad?
"[Cheever]: No. Just it's bad, I mean, the whole
"[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
. . . .
"[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-
"[Defense counsel]: -for killing him in that letter. Is
"[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 ...