State v. Stallings

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 Stalhngs’ request for allocution and over the State’s objection, the district court permitted Stalhngs to address the sentencing jury on the issue of mitigation of punishment; Stalhngs was not sworn or subject to cross-examination. The jury could not agree on the death penalty, and the court sentenced Stalhngs to five consecutive hard-50 life sentences on the capital murder convictions.

When Stalhngs 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 Stalhngs’ 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). Stalhngs 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.

STANDARD OF REVIEW

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 juiy, 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, Stalhngs’ constitutional argument does not restrict our review standard.

CONSTRUCTION RULES

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 [1995]).

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 [2004]). 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 STATUTES

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 noncapital 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 tire 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 defendant shall be sentenced to death.” (Emphasis added.) K.S.A. 2006 Supp. 21-4624(e).

However, notwithstanding the verdict of the jury, the trial court is required to review the juiy’s death verdict “to ascertain whether the imposition of such sentence is supported by the evidence,” and, if not, “the court shall modify the sentence ... to life without the possibility of parole, and no sentence of death shall be imposed.” K.S.A. 2006 Supp. 21-4624(f). The statute does not mention allocution.

DISTRICT COURTS RULING

On appeal, the State inaccurately contends that the district court found Stallings “had a right of allocution in front of the jury . . . without being under oath.” However, in its Order Regarding Al-locution, the district court recognized that, although it was going to permit Stallings to address the jury regarding the issue of mitigation of punishment, “[t]his is not a right authorized by Kansas law.” The court noted that Kansas law recognizes the right of allocution to the sentencing judge, but opined “that right has little meaning in a capital murder case where the jury, not the judge, makes the decision whether to impose the death penalty.”

In an apparent attempt to give meaning to Stallings’ allocution, while addressing the State’s concerns about allowing a defendant to make an unsworn, unchallenged statement to the factfinding jury, the court crafted its own solution. The sentencing court ruled that Stallings’ comments would be limited to the issue of mitigation; that he would submit the substance of his statement in writing to the court in advance; that Stallings would be specifically precluded from addressing his dissatisfaction with current or former counsel and the evidence regarding guilt, except for his mental state at the time the killings were committed; that Stallings’ noncompliance with the court’s requirements would result in termination of his statement; and that Stallings’ statement woüld occur before the attorneys’ closing arguments. In discussing the permissible topic of mitigation of punishment, the district court’s order specifically referred to the following pattern instruction language:

“Mitigating circumstances are those which in fairness may be considered as extenuating or reducing the degree or moral culpability or blame or which justify a sentence of less than death, even though they do not justify or excuse the offense. Mercy can itself be a mitigatingfactor.” (Emphasis added.)

STATUTORY AUTHORITY

As the State points out, the general allocution statutes plainly provide the defendant an opportunity to address the sentencing court, not the sentencing jury. Likewise, the death penalty sentencing procedure does not establish a right of allocution before the jury, separate and apart from the defendant’s right to testify during the evidentiary phase. Stallings invites us to refrain from strictly construing the statutes and to judicially expand the statutory law so as to allow an unsworn, unchallenged statement to the death penalty jury. We decline the invitation.

With respect to allocution before the judge, Stallings declares that right to be meaningless in a death penalty case because the jury has already determined the sentence. That argument is tempered to some extent by K.S.A. 2006 Supp. 21-4624(f), which invests the judge with the final authority to impose the death penalty or to modify it to life without parole. Further, K.S.A. 22-3422, entitled “Allocution,” merely gives the defendant an opportunity to answer “whether he has any legal cause to show why judgment should not be rendered.” That right to show legal cause is effected when the capital murder convict is given an opportunity to address the judge, who is the sole arbiter of legal questions.

However, K.S.A. 22-3424(e) expands a Kansas defendant’s right of allocution to include making a statement on his or her own behalf. See State v. Webb, 242 Kan. 519, 528, 748 P.2d 875 (1988). Stallings contends that this statutory provision would effect “a very hollow right of allocution” unless the capital murder defendant addresses the statement to the sentencing jury. However, we cannot rewrite that statute to add a death penalty exception in order to give the defendant an allocution opportunity which is more to his liking or even one which is more to our liking. The only way to reach such a construction would be to declare that K.S.A. 22-3424(e) needs to be reconciled and brought into workable harmony with the death penalty sentencing provision, K.S.A. 2006 Supp. 21-4624. However, we decline to manufacture a disharmony where none exists.

The plainly worded statutes actually provided Stallings with the opportunity to make two self-serving statements and presentations of mitigating evidence. During the jury proceedings, K.S.A. 2006 Supp. 21-4624(c) permitted him to present all probative evidence in mitigation, including his own immunized testimony. As the district court noted, mercy is a mitigating circumstance, which would make defendant’s plea for mercy relevant testimony. Thus, Stallings could have addressed the jury and presented mitigating evidence during the evidentiary phase, as well as addressing the judge prior to the court’s formal imposition of sentence.

Granted, this form of “allocution” to the jury from the witness stand requires that the defendant be sworn and subject to cross-examination. Those requirements could arguably have a chilling effect on a defendant’s decision to “allocute” before the jury because of fear of the prosecutor’s cross-examination. Some might find unacceptable any procedure which hampers or discourages a defendant’s opportunity to plead to the jury for his or her own fife. However, the legislature is the architect of the death penalty. So long as it stays within constitutional parameters, the legislature is solely responsible for the basic fairness and humanity, or lack thereof, with which the draconian punishment of death is meted out. We must refrain from deciding this case based upon our own perceptions of what the law should be.

In accord, most of the state and federal courts presented with allocution statute language referring to the court and a separate death penalty sentencing provision that is silent on allocution have concluded that a defendant has no statutory right to allocution in front of the death penalty jury. See United States v. Purkey, 428 F.3d 738, 761 (8th Cir. 2005) (concluding that the plain language of the federal allocution rule does not grant the right to allocution before a jury); United States v. Barnette, 211 F.3d 803, 820 (4th Cir. 2000) (stating that the federal allocution rule did not address allocution before death penalty juries); United States v. Hall, 152 F.3d 381, 392-97 (5th Cir. 1998), cert. denied 526 U.S. 1117 (1999) (concluding that the text of the federal allocution rule provided no basis for allowing a defendant to make a statement to a death penalty jury); United States v. Johnson, 403 F. Supp. 2d 721, 871 (N.D. Iowa 2005) (relying on Purkey); United States v. Johnson, 136 F. Supp. 2d 553, 566-68 (W.D. Va. 2001) (stating that the death pen-ally sentencing statute counseled against extending the federal allocution rule to death penalty juries because it set forth with great specificity the type of information to be submitted to the jury); People v. Robbins, 45 Cal. 3d 867, 889-90, 248 Cal. Rptr. 172, 755 P.2d 355 (1988) (finding nothing in the language of the allocution statute that would suggest a legislative intent to allow capital defendants the right of allocution separate from the capital sentencing scheme); State v. Colon, 272 Conn. 106, 306, 864 A.2d 666 (2004) (noting that the rule allowing allocution and the death penalty sentencing statutes were both silent regarding a defendant’s right to allocution before the death penalty jury and relying on the legislature’s specificity for the procedures in the capital sentencing scheme); People v. Gaines, 88 Ill. 2d 342, 375-76, 430 N.E.2d 1046 (1981) (noting that the statute was amended to specifically exclude death penalty proceedings); State v. Whitfield, 837 S.W.2d 503, 514 (Mo. 1992) (deciding the allocution statute did not extend to death penalty juries without analysis); State v. Green, 336 N.C. 142, 192, 443 S.E.2d 14 (1994) (relying on the statutory language, which established a separate statute for death penalty proceedings without incorporating the allocution statute); Com. v. Abu-Jamal, 521 Pa. 188, 212, 555 A.2d 846 (1989) (relying on the separation of the death penalty sentencing statutes from the allocution statute); State v. Stephenson, 878 S.W.2d 530, 551-52 (Tenn. 1994) (concluding that the language of the allocution statute did not specifically include a right to allocution before death penalty juries); State v. Young, 853 P.2d 327, 357-61 (Utah 1993) (concluding that the language of the allocution rule was directed at the procedure of the court and did not include capital sentencing procedures, which were set forth in another statute); Bassett v. Commonwealth, 222 Va. 844, 859, 284 S.E.2d 844 (1981) (relying on the language in the allocution statute, which did not address sentencing before a jury, and the separate statute estabhshing the procedure for death penalty sentencing, which allowed the presentation of evidence but not allocution); but cf. People v. Borrego, 774 P.2d 854, 856 (Colo. 1989); Shelton v. State, 744 A.2d 465, 495-96 (Del. 1999).

Some jurisdictions have allowed a defendant to make a statement to the jury, despite the absence of statutory authority. See, e.g., United States v. Wilson, 493 F. Supp. 2d 515 (E.D. N.Y. 2007) (concluding that there is no statutory or constitutional right to allocution before a death penalty jury but permitting the defendant to make a statement expressing remorse because it would be unjust to deny the defendant’s request); Homick v. State, 108 Nev. 127, 133-34, 825 P.2d 600 (1992) (acknowledging Hardison v. State, 104 Nev. 530, 763 P.2d 52 [1988], which held that the statutory rights to allocution did not apply in capital cases because of the specific statutoiy procedures for death penalty sentencing but concluding that capital defendants have a common-law right to allocution); State v. Zola, 112 N.J. 384, 428, 548 A.2d 1022 (1988) (stating that the rule requiring allocution before a court did not include capital juries and the rule prescribing the procedures in capital cases did not include allocution before the jury but recognizing a common-law right to allocution before a death penalty juiy as long as the defendant’s comments do not dispute any facts).

However, our legislature has declared that the provisions of the Kansas Code of Criminal Procedure “shall govern proceedings in all criminal cases in the courts of the state of Kansas.” K.S.A. 22-2102. Therefore, we are loath to divine a common-law right or to declare some other right to address a death penalty jury when such would be in direct contravention of the criminal code.

Further, one can intuit a rationale for omitting an allocution to the juiy following the presentation of the evidence in a death penalty sentencing. The juiy is asked to determine whether the evidence presented supports the finding of one or more aggravating circumstances and then to weigh whether any mitigating circumstances found to exist outweigh the aggravating circumstances. One can perceive that a lay juror might be confused as to how the defendant’s unsworn, unchallenged statements should factor into the factfinding calculus, i.e., whether to give such statements equal treatment with the evidence produced from the witness stand.

Even Stallings’ brief recognizes the need for “[s]etting parameters [to keep] die capital defendant’s statement in line,” albeit he does not believe that the defendant must be sworn or subject to cross-examination to effect the needed safeguards. Rather, Stallings suggests that the district court, as it did here, can restrict the content of the capital defendant’s statement and screen the proposed statement for any inappropriate comments. While that may true, Stallings does not favor us with an explanation of how we get to the point of defining the permissible parameters of a capital defendant’s statement to the jury without cutting new law completely from whole cloth.

The district court below crafted a commendable compromise of the competing interests of the parties when it permitted Stallings to address the jury, subject to the restrictions and oversight of the presiding judge. However, we must answer the question presented by finding that the court simply did not have the statutory authority to do so.

CONSTITUTIONAL CONSIDERATIONS

Stallings contends that his right to allocution before the death penalty jury is a constitutional guarantee, both as a matter of due process and of equal protection. We disagree. There is scant support for finding the right of allocution in general to be a constitutional right and even less support for extending that right to addressing the death penalty jury, rather than the sentencing judge.

In Webb, Justice Herd explained the historical function and development of allocution. In doing so, he noted that the United States Supreme Court, in Hill v. United States, 368 U.S. 424, 428, 7 L. Ed. 2d 417, 82 S. Ct. 468, reh. denied 369 U.S. 808 (1962), held that the failure to provide allocution was not grounds for collateral attack because the error was not of jurisdictional or constitutional dimension. 242 Kan. at 524. The United States Supreme Court has not revisited the issue.

Since Hill, the Fourth and Ninth Circuits have concluded that denying a defendant’s request for allocution before the sentencing court in a noncapital case is a constitutional due process violation. Boardman v. Estelle, 957 F.2d 1523, 1530 (9th Cir.), cert. denied 506 U.S. 904 (1992); Ashe v. State of N.C., 586 F.2d 334, 336 (4th Cir. 1978). However, we are not presented with a question of the complete denial of allocution, but rather with the question of when and before whom the allocution should occur. Pointedly, the Fourth Circuit did not extend its constitutional due process right to allocution to mean that a capital murder defendant is entitled to make an unsworn, unchallenged statement to the death penalty juiy. Barnette, 211 F.3d 803 (affirming the trial court’s denial of a capital defendant’s request to make unsworn statements to the death penalty sentencing jury without subjecting them to cross-examination). Likewise, we conclude that Stallings had no due process right to address the death penalty jury.

Stallings also makes a cursoiy attempt at mounting an equal protection argument. The substance of his argument is contained in one paragraph, as follows:

“There is no rational basis in allowing non-capital defendant’s [sic] the right to allocution to the sentencing party but to deny it to capital defendants. If anything, capital defendants deserve a heightened level of scrutiny and constitutional safeguards. Further, any concerns about inappropriate comments to the jury can be alleviated by the parameters and limits discussed herein. Without justification, the differing rights violates the right to Equal Protection.”

The first step in analyzing an equal protection claim is to determine the nature of the legislative classification, and if the legislative classification does not target a suspect class or burden a fundamental right, the court applies a rational basis test. See State v. Limon, 280 Kan. 275, 284, 122 P.3d 22 (2005). Where Stallings’ argument disintegrates is that, with respect to allocution, the Kansas Legislature has not created different classes. All convicted persons are treated equally in that they all have the right to allocute before the sentencing judge.

Stallings does not complain about the legislative classification whereby a capital murder defendant is entitled to a jury determination on the death penalty, whereas a noncapital defendant has no entitlement to jury input on sentencing. Thus, what Stallings actually wants is for us to interpret the general allocution statutes to create a legislative classification that will treat capital murder defendants differently. We find no merit in Stallings’ cursory equal protection claim. Accord Gaines, 88 Ill. 2d at 380 (rejecting a capital defendant’s claim that the denial of allocution before a death penalty jury violated his right to equal protection); see also Colon, 272 Conn. at 315 (rejecting a capital defendant’s claim that the denial of allocution before a death penalty jury violated equal protection); People v. Kokoraleis, 132 Ill. 2d 235, 280-82, 547 N.E.2d 202 (1989); People v. Christiansen, 116 Ill. 2d 96, 128-29, 506 N.E.2d 1253 (1987) (rejecting the equal protection claim for capital defendants seeking allocution before a death penalty jury).

CONCLUSION

Our statutes provide that a capital murder defendant has the right of allocution before the sentencing judge. Our statutes do not provide a mechanism for a capital murder defendant to make an unsworn, unchallenged statement to the death penalty jury. The legislature bears sole responsibility for allowing or denying the opportunity for a capital murder defendant to plead to the death penalty jury to spare his or her life. There is no common-law or other right which overrides the legislative prescription of criminal procedure. Our statutory scheme does not violate a capital murder defendant’s constitutional rights. The State’s cross-appeal must be sustained.

Cross-appeal sustained.