State v. Cheever , 295 Kan. 229 ( 2012 )

Rosen, J.,

concurring: I concur with the majority but write separately only to comment on Cheever s argument that jurors be allowed the opportunity to consider mercy after finding a determination of death is warranted.

As a result of our decision in State v. Stallings, 284 Kan. 741, 163 P.3d 1232 (2007), capital defendants are denied the statutory right of allocution to the sentencing juiy. See K.S.A. 22-3424(e) (defendant must be given opportunity to address the court, make a statement on the defendant’s own behalf, and present evidence in mitigation of punishment). Thus, a capital defendant is deprived of any meaningful opportunity to make a plea for mercy, indeed for his or her very life, before the sentencing jury malees a decision whether the defendant is to be put to death. I dissented from the decision in Stallings and write here to make clear my opinion that Cheever, like all criminal defendants, should be afforded an opportunity to offer a direct allocutory statement in mitigation to his sentencer.