DocketNumber： No. 90,198
Judges： Beier, Biles, Johnson, Luckert, Moritz, Portion
Filed Date： 7/25/2014
Status： Precedential
Modified Date： 10/18/2024
The opinion of the court was delivered by
Defendant Jonathan D. Carr, and his brother, Reginald Dexter Carr, Jr., were jointly charged, tried, convicted, and sentenced for crimes committed in a series of incidents in December 2000 in Wichita. This is J. Carr s direct appeal from his 43 convictions and four death sentences.
Our opinion in codefendant R. Carr s direct appeal also is filed today. State v. Carr, 299 Kan. 1, 331 P.3d 544. With the exception of the brief introduction to follow, this opinion will refer to the opinion in R. Carr s appeal as much as possible, rather than repeat facts, procedural history, or legal discussions and resolutions.
The first incident giving rise to the charges in this case occurred on December 7 and 8. Andrew Schreiber was the victim. The State charged J. Carr and R. Carr with one count of kidnapping, one count of aggravated robbery, one count of aggravated battery, and one count of criminal damage to property. The jury acquitted J. Carr on all counts and convicted R. Carr on all counts.
In the second incident on December 11, Linda Ann Walenta was the victim. The State charged J. Carr and R. Carr with one count of first-degree felony murder. The jury convicted both men.
In the third incident on December 14 and 15, Heather M., Aaron S., Brad H., Jason B., and Holly G. were the victims of an invasion at the men’s Birchwood Drive home that led to sex crimes, kidnappings, robberies, and, eventually, murder and attempted murder. The State charged J. Carr and R. Carr with eight alternative counts of capital murder, four based on a related sex crime under K.S.A. 21-3439(a)(4) and four based on multiple first-degree premeditated murders under K.S.A. 21-3439(a)(6); one count of attempted first-degree murder; five counts of aggravated kidnap
In connection with the three incidents, the State also charged R. Carr alone with three counts of unlawful possession of a firearm. The jury convicted him on these three counts as well.
After J. Carr’s acquittal on the Schreiber incident and the defendants’ convictions on all other charges, in a separate capital penalty proceeding, J. Carr and R. Carr were sentenced to death for each of the four capital murders committed on December 15. They each received a hard 20 life sentence for the Walenta felony murder. J. Carr received a controlling total of 492 months’ imprisonment consecutive to the hard 20 life sentence, and R. Carr received a controlling total of 570 months’ imprisonment consecutive to the hard 20 life sentence for the remaining non-death-eligible convictions.
In his briefs, J. Carr raises 21 issues tied to the guilt phase of his prosecution and 16 issues tied to the death penalty phase of his prosecution. In addition, because this is a death penalty case, this court is empowered to notice and discuss unassigned potential errors under K.S.A. 2013 Supp. 21-6619(b), which we do. J. Carr does not challenge the sentences he received for the Walenta felony murder; for the crimes in which Headier M., Aaron S., Brad H., Jason B., and Holly G. were the victims that were not eligible for the death penalty; or for the cruelty to animals conviction.
After searching review of the record, careful examination of the parties’ arguments, extensive independent legal research, and lengthy deliberations, we affirm 25 of J. Carr’s 43 convictions, including those for one count of capital murder of Heather M., Aaron S., Brad H., and Jason B. under K.S.A. 21-3439(a)(6) and for the felony murder of Walenta. We reverse the three remaining convictions for capital murder because of charging and multiplicity errors. We also reverse his convictions on Counts 25, 26, 29 through 40, and 42 for coerced sex acts for similar reasons. We affirm the convictions based on Counts 2, 9 through 24, 27, 28,41, and 43 through 55.
We vacate J. Carr’s death sentence for the remaining capital * murder conviction, because the district judge refused to sever the defendants’ penalty phase trials. We remand to the district court for further proceedings.
Factual and Procedural Background for Guilt Phase Issues
The general factual and procedural background for the guilt phase issues in this case is set out in full in the R. Carr opinion. We need not repeat it or supplement it here. To the extent additional, issue-specific factual or procedural background is necessary to resolve any legal issue unique to J. Carr, it will be included in the discussion sections below.
Guilt Phase Issues and Short Answers
We begin our discussion by setting out the questions we answer today on the guilt phase of J. Carr’s trial. We have taken the liberty of reformulating certain questions to focus on their legally significant aspects or effects. We also have reordered questions raised by the defense and have inserted among them unassigned-potential errors noted by us, because we believe this organization enhances
Issues Disposed of by Opinion in R. Carr Appeal
Issues Affecting All Incidents
1. Did the district judge err in refusing to grant defense motions for change of venue? A majority of six of the court’s members answers this question no for reasons explained in Section 1 of the R. Carr opinion, while one member of the court dissents and writes separately on this issue and its reversibility, standing alone.
2. Did the district judge err in refusing to sever the guilt phase of defendants’ trial? A majority of six members of the court answers this question yes for reasons explained in Section 2 of the R. Carr opinion, while one member of the court dissents and writes separately on this issue. A majority of four members of the court agrees that any error on this issue was not reversible standing alone for reasons explained in the R. Carr appeal, while three members of the court dissent, and one of them writes separately for the three on the reversibility question.
3. Was it error for the State to pursue conviction of J. Carr for all counts arising out of tire three December 2000 incidents in one prosecution? The court unanimously answers this question no for reasons explained in Section 3 of the R. Carr opinion.
4. Did tíre district judge err (a) by excusing prospective juror M.W., who opposed the death penalty, for cause, (b) by failing to excuse allegedly mitigation-impaired jury panel members W.B., D.R., D.Ge., and H.Gu. for cause, or< (c) by excusing prospective jurors K.J., M.G., H.D., C.R., D.H., and M.B., who expressed moral or religious reservations about the death penalty, for cause?
5. Did the district judge err by rejecting a defense challenge under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct 1712, 90 L. Ed. 2d 69 (1986), to the State’s peremptory strike of juror and eventual foreperson W.B.? The court unanimously answers this question yes for reasons explained in Section 5 of the R. Carr opinion. A majority of four members of the court agrees that any error on this issue was not reversible standing alone for reasons explained in Section 5 of the R. Carr opinion, while three members of the court dissent, and one of them writes separately for the three on the reversibility question.
Issue Specific to Walenta Incident
6. Was the .district judge’s admission of statements by Walenta through law enforcement error under the Sixth Amendment and Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)? The court unanimously answers this question yes for reasons explained in Section 6 of the R. Carr opinion, but the court also unanimously agrees that this error was not reversible standing alone.
Issues Specific to Quadruple Homicide and Other Birchwood Crimes
7. Did faulty jury instructions on all four K.S.A. 21-3439(a)(4) sex-crime-based capital murders and a multiplicity problem on three of four K.S.A. 21-3439(a)(6) multiple-death capital murders combine to require reversal of three of J. Carr’s death-eligible convictions? The court unanimously answers this question yes for reasons explained in Section 9 of the R. Carr opinion.
8. Was a special unanimity instruction required for Counts 1, 3, 5, and 7 because of multiple sex crimes underlying each count? The court declines to reach the merits of this issue for reasons explained in Section 10 of the R. Carr opinion.
9. Must sex crime convictions underlying capital murder Counts 1, 3, 5, and 7 be reversed because they were lesser included offenses of capital murder under K.S.A. 21-3439 (a)(4)? The court
10. Was the State’s evidence of aggravated burglary sufficient? The court unanimously answers this question yes for reasons explained in Section 12 of the R. Carr opinion.
11. Did the State fail to correctly charge and the district judge fail to correctly instruct on coerced victim-on-victim rape and attempted rape, as tiróse crimes are defined by Kansas statutes, rendering J. Carr’s convictions on those offenses void for lack of subject matter jurisdiction? The court unanimously answers this question yes for reasons explained in Section 13 of the R. Carr opinion.
12. Was the State’s evidence of J. Carr’s guilt as a principal on Count 41 for Holly G.’s digital self-penetration sufficient? A majority of four of the court’s members answers this question yes for reasons explained in Section 14 of the R. Carr opinion, while three members of the court dissent, and one of them writes separately for the two of them on this issue and its reversibility.
13. Were Count 41 and Count 42 multiplicitous? The court unanimously answers this question yes and reverses J. Carr’s conviction as a principal on Count 42 for reasons explained in Section 15 of die R. Carr opinion.
14. Was evidence of results from mitochondrial DNA testing of hairs found at the Birchwood home erroneously admitted? The court unanimously answers this question no for reasons explained in Section 19 of the R. Carr opinion.
15. Did die district judge err by failing to instruct on felony murder as a lesser included crime of capital murder? The court unanimously answers this question no for reasons explained in Section- 21 of the R. Carr opinion.
Other Evidentiary Issues
16. Did the district judge err by automatically excluding eyewitness identification expert testimony proffered by the defense? The court unanimously answers this question yes for reasons explained in Section 22 of the R. Carr opinion, but the court also unanimously agrees that any error on this issue was not reversible standing alone.
Other Instructional Issues
18. Did the district judge err by failing to include language in the instruction on reliability of eyewitness identifications to ensure that jurors considered possible infirmities in cross-racial identifications? The court unanimously answers this question no for reasons explained in Section 24 of the R. Carr opinion.
19. Was die instruction on aiding and abetting erroneous because (a) it permitted jurors to convict the defendants as aiders and abettors for reasonably foreseeable crimes of the other, regardless of whether tire State proved the aider and abettor’s premeditation, (b) it failed to communicate that the defendant aider and abettor had to possess the premeditated intent to kill in order to be convicted of capital murder, or (c) it omitted language from K.S.A. 21-3205(2)? The court unanimously answers the first question yes for reasons explained in Section 25 of the R. Carr opinion. The court unanimously answers the second question no for reasons explained in Section 25 of the R. Carr opinion. The court unanimously answers the third question no for reasons explained in Section 25 of the R. Carr opinion. The court unanimously agrees that the error on the first question was not reversible standing alone for reasons explained in Section 25 of the R. Carr opinion.
Prosecutorial Misconduct
20. Did one of the prosecutors commit reversible misconduct by telling jurors to place themselves in the position of the victims? The court unanimously answers this question no for reasons explained in Section 26 of the R. Carr opinion.
Cumulative Error
21. Did cumulative error deny J. Carr a fair trial on his guilt? A majority of four of the court’s members answers this question no for reasons explained in Section 27 of the R. Carr opinion, while
Issues Not Disposed of by Opinion in R. Carr Appeal
Jl. Did the district judge err by refusing to grant a mistrial when the opening statement by R. Carr s counsel implicated J. Carr and another unknown man as the perpetrators of the Birchwood crimes? A majority of four of the court’s members answers this question no. Three members of the court would hold this to be error and include it among those considered under the cumulative error doctrine.
J2. Did admission of Walenta’s statements violate J. Carr’s confrontation rights under Section 10 of the Kansas Constitution Bill of Rights? The court declines to reach the merits of the Section 10 argument.
J3. Did J. Carr’s conviction on the Walenta felony murder depend upon impermissible inference stacking, meaning the State’s evidence was insufficient? A majority of six members of the court answers this question no. One member of the court dissents and writes separately on this issue and its reversibility, standing alone.
J4. Was tire State’s evidence of J. Carr’s guilt as an aider and abettor of R. Carr’s rape and aggravated criminal sodomy of Holly G. sufficient? The court unanimously answers this question yes.
Jl. Refusal to Grant Mistrial After Opening Statements
This court rules today in the R. Carr appeal that District Judge Paul Clark erred by refusing to sever the defendants’ guilt phase trials but that the error does not require reversal standing alone. See State v. Carr, 299 Kan. at 281-82. These holdings apply equally to this appeal on behalf of J. Carr.
J. Carr has argued additional reasons peculiar to him why severance was required—that a joint trial limited his ability to introduce certain hearsay testimony through Tronda Adams, that it allowed R. Carr to act as a second prosecutor by introducing testimony from Stephanie Donley and a statement from Holly G. that were inculpatory of J. Carr, and that it permitted the jury to - observe and be prejudiced by R. Carr’s improper courtroom be
We mention the severance issue in this context because it is distinct from but related to the unique challenge J. Carr makes on this appeal to Judge Clark’s refusal to grant him a mistrial after opening statements.
R. Carr’s counsel told the jury during opening statement that his client merely stored property stolen from the Birchwood victims for J. Carr and another unknown, uncharged third man, suggesting that J. Carr and the third man were responsible for all of the charged Birchwood crimes. These remarks prompted an objection from counsel for J. Carr on the grounds that they were argumentative and unsupported by the evidence. Judge Clark overruled the objection.
This ruling by Judge Clark was correct. Counsel for R. Carr began his explanation of what happened on the night of December 14 and 15, 2000, with the phrase “the evidence will show.” That phrase signals tire purpose of opening statement; it provides an opportunity for counsel to outline a version of events that he or she expects the evidence to prove to the jury. State v. Kleypas, 272 Kan. 894, Syl. ¶ 23, 40 P.3d 139 (2001) (purpose of opening statement to assist jury in understanding expected evidence; attorneys given reasonable latitude to state facts expected to be proved). In addition, the objection by J. Carr’s counsel that the opening statement was unsupported by evidence was virtually impossible to sustain at that stage of the case, when all evidence was yet to be admitted.
R. Carr’s counsel continued to discuss the involvement of J. Carr and the third unknown man in the Birchwood crimes, finally observing that “tire Birchwood address is replete with Jonathan Carr’s DNA .... Ultimately, the DNA evidence will show that Jonathan Carr, not Reginald Carr, Jonathan Carr committed most, if not all of the crimes which are alleged in the complaint and that he did it with a third black male who still walks the streets of Wichita.”
During that day s lunch break, outside the presence of the jury, the State argued that the opening statement by counsel for R. Carr had violated rulings on motions in limine and that he should be sanctioned for misconduct. The prosecutor also asked the judge to instruct the juiy to disregard the statement. J. Carr moved for a mistrial. The grounds his counsel advanced in support of the motion, although abbreviated, were exactly the same as those advanced in support of J. Carr s multiple motions for severance: The defenses of J. Carr and R. Carr were mutually and irreconcilably antagonistic.
When examining an appellate claim arising out of denial of a mistrial, we review the district judge’s decision for an abuse of discretion. State v. Waller, No. 106,102, 299 Kan. 707, 722, 328 P.3d 1111 (2014). “ ‘[T]he party alleging the abuse bears the burden of proving that his or her substantial rights to a fair trial were prejudiced.’ State v. Angelo, 287 Kan. 262, 283, Syl. ¶ 16, 197 P.3d 337 (2008) (citing State v. White, 284 Kan. 333, 161 P.3d 208 [2007]).” State v. Leaper, 291 Kan. 89, 96-97, 238 P.3d 266 (2010). We first ask whether the district judge abused his or her discretion when deciding whether there was a fundamental failure in the proceedings. If so, we then examine whether the district judge abused his or her discretion when deciding whether the problematic conduct resulted in prejudice that could not be cured or mitigated through jury admonition or instruction, resulting in an injustice. State v. Harris, 293 Kan. 798, 814-15, 269 P.3d 820 (2012).
Having already held that defense motions for severance of the guilt phase should have been granted, we also hold that Judge Clark abused his discretion by failing to recognize a fundamental failure in the proceedings when R. Carr’s counsel made his remarks during opening statement. Those remarks made the irreconcilable antagonism of the codefendants’ cases inescapably clear. However, also in line with the majority view on severance, we further hold that there was no abuse of discretion in refusing to grant a mistrial to cure that failure.
J2. Confrontation Rights under Section 10 of Kansas Constitution Bill of Rights
Like R. Carr, J. Carr challenges tire admission ofWalenta’s statements under the Sixth Amendment and the Confrontation Clause. We have fully discussed those arguments in Section 6 of the R. Carr opinion and need not revisit them here. J. Carr also invoked Section 10 of the Kansas Constitution Bill of Rights in support of his position on this issue, and it is that invocation that prompts us to malee a brief response in this opinion.
We have not previously differentiated the rights of a defendant protected by the Sixth Amendment and those protected by Section 10. See State v. Brown, 285 Kan. 261, 282, 173 P.3d 612 (2007). And we need not do so here. We leave die merits of any argument under Section 10 to the next case.
J3. Sufficiency of Evidence on Walenta Felony Murder
J. Carr challenges the evidence supporting his conviction ofWal-enta’s felony murder as insufficient, arguing that impermissible inference stacking was required in order for the jury to convict.
Additional Factual and Procedural Background
Count 51 in the amended complaint charged both defendants with first-degree felony murder of Walenta while committing or attempting to commit the inherently dangerous felony of aggravated robbery.
Summarized for ease of reference, the evidence showed Walenta was approached by a black male shortly after she pulled into her
Later on the evening of December 11, about 11:15, J. Carr showed up at Adams’ house. Adams testified in pertinent part:
“Q. Do you remember what he was driving?
“A. I think he was dropped off that night and his brother came back to pick him up.
“Q. And so you are not sure of the vehicle?
“A. The Camiy, it would have been the [light-colored four-door] Camry.
“Q. Okay. So when his brother returned, did you see him to the door?
“A. No, I don’t think so.
“Q. Do you recall whether you saw the Camry the early morning hours of the 12th?
“A. No, I don’t, no.”
Adams also testified that J. Carr had a black handgun with him on the same night, which he left with her. Late the next day he asked her to return the gun to him, scolded her for touching it too much, and then proceeded to clean it and every bullet in it thoroughly. Adams identified tire black Lorcin at trial as the gun J. Carr had with him on the night of December 11, 2000.
A few days later, after J. Carr and R. Carr had been arrested in the wake of the Birchwood crimes, Walenta picked two pictures out of a photo array as representative of the general appearance of the man who had shot her. One of those pictures was of R. Carr. She also said that the eyes of the man in the photo of R. Carr represented what she remembered of the gunman’s eyes. She did
Ballistics expert testimony established that the black handgun used in the shooting of Walenta was the same black Lorcin .380 used to shoot out Schreiber s tire and to murder the four friends from the Birchwood home.
J. Carr was acquitted on the four charges arising out of the Schreiber incident and convicted on all charges against him arising out of the Walenta and Birchwood incidents.
Evidence Sufficiency
Our standard of review on sufficiency claims is often stated and familiar:
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, examined in the light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citations omitted.] While the State must sustain its burden of proof on each element of an offense charged, circumstantial evidence and the logical inferences therefrom are sufficient to support a conviction of even the most serious crime. [Citations omitted.] If an appellate court holds that evidence to support a conviction is insufficient as a matter of law, the conviction must be reversed; and no retrial on the same crime is possible. See Burks v. United States, 437 U.S. 1, 11, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978) (double jeopardy precludes second trial once appellate court reverses for insufficient evidence); State v. Houck, 240 Kan. 130, 135-36, 727 P.2d 460 (1986) (conviction reversed without remand, where evidence did not support conviction of offense charged).” State v. Scott, 285 Kan. 366, 372, 171 P.3d 639 (2007).
In addition, appellate courts do not reweigh evidence, resolve ev-identiary conflicts, or make witness credibility determinations. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
We do not agree with J. Carr that his conviction of Walenta’s felony murder required inference to be stacked upon inference.
Walenta saw the gunman emerge from the passenger seat of the light-colored car, and she saw the car pull away from its parking place immediately after the shooting. A juror need only make one inference from these facts to arrive at a finding that there was another person driving the car that followed her. Adams testified that J. Carr was with his brother on the night of the crime. Adams’
What was required was the jury’s willingness to be persuaded of J. Carr’s guilt on circumstantial evidence. This is expressly allowed under Kansas law. See State v. Lowrance, 298 Kan. 274, Syl. ¶ 15, 312 P.3d 328 (2013) (even most serious of crimes may be proved by circumstantial evidence). Circumstantial proof is still proof. It is not equivalent to impermissible inference-stacking. It can rise to the level of beyond a reasonable doubt.
Particularly when we view the evidence in the light most favorable to die prosecution, we conclude the evidence in this case was sufficient to convict J. Carr of Walenta’s murder. This conclusion is reinforced by our recent decision in State v. McBroom, 299 Kan. 731, 756-58, 325 P.3d 1174 (2014), in which we held that evidence of the defendant’s participation in a string of burglaries with a friend could be relied upon by a jury to find he also participated in a burglary/homicide that was apparently committed by more tiran one person in the same general area and time frame. In this case, the evidence against J. Carr on the Birchwood incident would naturally have reinforced the evidence on the Walenta incident.
J. Carr also challenges his conviction as an aider and abettor of R. Carr’s rape and aggravated criminal sodomy of Holly G.
We fully discussed the mirror image of this challenge in our opinion on the R. Carr appeal, in Section 16. There we ruled that R. Carr could be found guilty as an aider and abettor of J. Carr’s sex crimes against Holly G. and Heather M., even though R. Carr was out of the Birchwood home on a trip with a victim to one or more ATMs or in another room when the crimes occurred. The all-night joint enterprise of the Birchwood intruders was plainly and repeatedly demonstrated by the State’s evidence, particularly Holly G.’s lengthy and detailed testimony. Under the standard of review recited in the previous section of this opinion, we have no hesitation in holding that the evidence J. Carr aided and abetted R. Carr’s rape and aggravated criminal sodomy of Holly G. was sufficient. See State v. Pratt, 255 Kan. 767, 773, 876 P.2d 1390 (1994) (aider and abettor need not be physically present when crime committed; sufficient evidence to support defendant’s attempted rape conviction).
Conclusion for Guilt Phase
For the reasons set forth above and in the opinion filed today in R. Carr’s appeal, State v. Carr, 299 Kan. 1, 331 P.3d 544 (2014), we affirm J. Carr’s capital murder conviction under Count 2. We reverse his three remaining capital murder convictions based on the alternative theories under K.S.A. 21-3439(a)(4) and (a)(6).
We affirm J. Carr’s convictions on Counts 9 through 24. Because four pairs of these counts were charged in the alternative, this results in affirmance of 12 rather than 16 convictions.
The convictions based on Counts 25, 26, and 29 through 40 are void for lack of subject matter jurisdiction. We affirm the convictions based on Counts 27 and 28. We affirm J. Carr’s conviction on Count 41. We reverse his conviction on Count 42 because it is multiplicitous with Count 41.
We affirm J. Carr’s convictions on Counts 43 through 55.
The general factual and procedural background for the penalty phase issues in this case is set out in full in the R. Carr opinion. We need not repeat it or supplement it here. In addition, nearly all penalty phase legal issues raised by J. Carr are discussed as needed and disposed of in the R. Carr opinion. We therefore merely list them with accompanying short responses.
PI. Did the district judge err in refusing to sever the penalty phase of defendants’ trial? A majority of six members of the court answers this question yes for reasons explained in Section PI of the R. Carr opinion and because of the family circumstances argument raised by J. Carr. The majority also relies on the prejudice to J. Carr flowing from R. Carr’s visible handcuffs during the penalty phase. One member of the court dissents and writes separately on this issue. A majority of six members of the court agrees that this error requires J. Carr’s remaining death sentence to be vacated, consistent with Section PI of the R. Carr opinion. One member of the court dissents and writes separately on this issue.
P2. Despite compliance with K.S.A. 21-4624(a), was it constitutional error to omit the four aggravating circumstances asserted by the State from the complaint? To provide guidance on remand, the court unanimously answers this question no for reasons explained in Section P2 of the R. Carr opinion.
P3. Did the four aggravating circumstances asserted by the State adequately channel the jury’s discretion in arriving at the sentence of death? To provide guidance on remand, the court unanimously answers this question yes for reasons explained in Section P3 of the R. Carr opinion.
P4. Does the unavailability of a transcript of the jury view deprive J. Carr of a meaningful opportunity for appellate review of his death sentence? To provide guidance on remand, the court unanimously answers this question no for reasons explained in Section P4 of the R. Carr opinion.
P5. Does K.S.A. 21-4624(c)’s allowance of testimonial hearsay (a) offend the heightened reliability standard applicable in death penalty cases, or (b) violate the Confrontation Clause of the United
P6. Did the district judge err in excluding mitigating evidence of (a) likelihood of parole, or (b) the anticipated impact of J. Carr s execution? To provide guidance on remand, the court unanimously answers the first question no for reasons explained in Section P6 of the R. Carr opinion. To provide further guidance on remand, in Section P6 of the R. Carr opinion, the court discusses the standard that should govern consideration if the second question arises again.
P7. Did the district judge err by permitting the State’s rebuttal witness to testify that he had consulted other experts and that they agreed with his opinion? To provide guidance on remand, in Section P7 of the R. Carr opinion, the court discusses the standard that should govern consideration if this question arises again.
P8. Did the district judge err in denying an opportunity for sur-rebuttal testimony? For reasons explained in Section P8 of the R. Carr opinion, the court unanimously agrees that the district judge abused his discretion. The court declines to reach the issue of harmlessness because of the necessity of remand.
P9. Must J. Carr’s sentencing on his noncapital convictions have occurred before the penalty phase of his trial, and, if so, should the juiy have been informed of dre sentences he would serve if he were not sentenced to death? For reasons explained in Section P9 of the R. Carr opinion, the court declines to reach the merits of the first part of this question because it is moot and, to provide guidance on remand, unanimously answers the second part of the question no.
P10. Did the district judge err in failing to instruct the jury that the existence of mitigating factors need not be proved beyond a reasonable doubt? To provide guidance on remand, for reasons explained in Section P10 of the R. Carr opinion, a majority of five
Pll. Did the district judge err by failing to instruct jurors that “the crime” to be considered when evaluating aggravating circumstances was capital murder? In Section Pll of the R. Carr opinion, we discuss this issue to provide guidance on remand.
P12. Was the jury instruction on the role of mercy clearly erroneous? To provide guidance on remand, for reasons explained in Section P12 of tire R. Carr opinion, the court unanimously answers this question no.
P13. Did the wording of Instruction 10, when read with the verdict forms, misstate the law on the need for jury unanimity on mitigating factors not outweighing aggravating factors? To provide guidance on remand, for reasons explained in Section P13 of the R. Carr opinion, the court unanimously answers this question yes.
P14. Must J. Cards death sentence be vacated because a fact necessary to imposition of the penalty—-his age of 18 or older at the time of the capital crimes—was not submitted to the jury or found beyond a reasonable doubt? For reasons explained in Section P14 of the R. Carr opinion, the court declines to reach the merits of this issue because the situation that prompted it is unlikely to arise again on remand.
P15. Does K.S.A. 21-3205 authorize punishing an aider and abettor the same as a principal? In Section P16 of the R. Carr opinion, the court declines to reach the merits of this issue because the record on appeal does not demonstrate that R. Carr was convicted of capital murder as an aider and abettor. This is also true of J. Carr, and no further discussion of the issue is warranted in this opinion.
P16. Is tire death penalty an unconstitutionally disproportionate punishment as applied to aiders and abettors of capital murder under Section 9 of the Kansas Constitution Bill of Rights? In Section P17 of the R. Carr opinion, the court declines to reach the merits of this issue because the record on appeal does not demonstrate that R. Carr was convicted of capital murder as an aider
P17. Was the penalty phase infected by prosecutorial misconduct? J. Carr argues that one prosecutor s multiple references to his unadjudicated criminal conduct and his jailhouse bragging about shooting the Birchwood victims and the crude reason for raping one of the female victims were misconduct. Even though one such reference during closing argument was the subject of a successful objection and an order for the jury to disregard it, J. Carr argues the damage was incurable. Defense counsel’s earlier objection suggesting that the prosecutor could not refer to such material without being able to “prove it up” had been overruled. This objection probably should have been sustained by Judge Clark. See State v. McCaslin, 291 Kan. 697, Syl. ¶ 12, 245 P.3d 1030 (2011) (prosecutor, once challenged, must demonstrate good faith basis for facts underlying questions, argument). For reasons explained in Section P18 of the R. Carr opinion, the court declines to reach the further merits of this issue because the situations that prompted it are unlikely to arise again on remand.
P18. Do verdict forms such as those used in this case pose a threat of double jeopardy? For reasons explained in Section P19 of the R. Carr opinion, the court declines to reach the merits of this issue because it is unripe.
P19. Does Kansas’ execution protocol protect against unnecessary pain? For reasons explained in Section P20 of the R. Carr opinion, the court declines to reach tire merits of this issue because it is unripe.
Conclusion for Penalty Phase
Because the district judge’s failure to sever the penalty phase of defendants’ trial violated J. Carr’s Eighth Amendment right to an individualized sentencing determination and cannot be deemed harmless error, the death sentence for J. Carr’s remaining K.S.A. 21-3439(a)(6) conviction for tire murders of Heather M., Aaron S., Brad H., and Jason B. is vacated. The case is remanded to the district court for further proceedings consistent with this opinion.