# State v. Scott

> Supreme Court of Kansas · May 16, 2008 · 286 Kan. 54

URL: https://www.frixlaw.com/law-library/cases/9786037

## Case

- **Full name:** State of Kansas, Appellee, v. Gavin D. Scott, Appellant
- **Court:** Supreme Court of Kansas
- **Decided:** May 16, 2008
- **Citations:** 286 Kan. 54; 183 P.3d 801; 2008 Kan. LEXIS 182
- **Precedential status:** Published
- **Opinion:** Concurrence by Johnson
- **Judges:** Johnson, Nuss, Knudson, Luckert
- **Cited by:** 69 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by State v. Dunn, 304 Kan. 773 (2016).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9786037

## How later opinions describe it (automated extraction)

- recognizing that appeal had been held in abeyance pending outcome of Kansas v. Marsh, 548 U.S. 163 , 126 S. Ct. 2516 , 165 L. 6 Ed. 2d 429 [2006]
- holding statutorily compliant notice of intent to seek death penalty is sufficient to give defendant 18 meaningful opportunity to respond to statutory aggravating factors
- holding statutorily compliant notice of intent to seek death penalty is sufficient to give defendant meaningful opportunity to respond to statutory aggravating factors

## Opinion text

Johnson, J.,
concurring: I concur in the result reached by the majority but write separately to take issue with the applicability of the aggravating factor in K.S.A. 21-4625(3).
I agree with Scott’s argument that K.S.A. 21-4625(3) should apply to such scenarios as a murder-for-hire or a killing to obtain an inheritance from the victim. The provision speaks to a defendant *123 murdering someone “for the purpose of receiving” money or property, suggesting a direct connection between the murder of a specific person and the acquisition of money or property because of the death of that person.
I acknowledge that our prior cases in the hard 40 context have construed the same language to encompass a murder which occurs collaterally to a robbery or burglary. In my view, in those cases, the defendant murders for the purpose of facilitating the taking of money or property or for the purpose of avoiding being caught for the property crime without any particular regard to the identity of the victim.
While I feel constrained by the principle of stare decisis to follow our precedent in the hárd 40 cases, I do not feel bound to extend those holdings to a death penalty case. As the majority notes, our jurisprudence in hard 40 cases is not controlling in death penalty cases. 286 Kan. at 113. Therefore, I would restrict the application of K.S.A. 21-4625(3) to those instances where the defendant’s purpose in killing the specific victim was to receive money or property as a direct consequence of the murder. Here, the murders were committed in the course of a burglary, and Scott did not receive money or property solely because the particular victims were murdered. He obtained property because he broke into the house and took it. I would find that the facts of this case would not support a finding that Scott committed the murder for the purpose of receiving money or property.
Luckert, J., joins in the foregoing concurrence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9786037. Public record. Not legal advice.