State v. Kleypas

Abbott, J.,

dissenting: I concur with Justice Davis’ dissent. I have no quarrel with anything in Justice Davis’ dissent, which I *1137 consider to be excellent. I would merely add the following thoughts.

The American Law Institute Model Penal Code § 210.6(2) (1985) (adopting 1962 official draft) requires mitigating circumstances to outweigh aggravating circumstances. The Model Penal Code provides for a hearing either before a jury or before a judge, and the language indicates that if the sentencer finds one of the aggravating circumstances it still may not impose the death penalty unless it “further finds there are no mitigating circumstances sufficiently substantial to call for leniency.” To me, this obviously requires the defendant to come forth with evidence of mitigating circumstances sufficiently substantial to call for leniency. It simply requires mitigating circumstances to outweigh the aggravating circumstances to prevent the death penalty from being imposed.

Justice Davis has thoroughly discussed the cases set forth below. I would rely on them.

In Walton v. Arizona, 497 U.S. 639 , 111 L. Ed. 2d 511 , 110 S. Ct. 3047 (1990), the Court stated:

“So long as a State’s method of allocating the burdens of proof does not lessen the State’s burden to prove every element of the offense charged, or in this case to prove the existence of aggravating circumstances, a defendant’s constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency.” 497 U.S. at 650 .

Kleypas attempts to distinguish Walton on the basis that the Arizona statute does not mandate a death sentence if the sentencing court finds the aggravators and mitigators in equal balance. The Ninth Circuit Court of Appeals disagreed in Adamson v. Ricketts, 865 F.2d 1011 (9th Cir. 1988) (en banc) noting that “under the Arizona statute, the death sentence will be imposed unless mitigating circumstances outweigh the aggravating circumstances,” and “in situations where the mitigating and aggravating circumstances are in balance . . . the statute bars the court from imposing a sentence less than death.” 865 F.2d at 1042 n.50, 1043.

In People v. Bean, 137 Ill. 2d 65 , 560 N.E.2d 258 (1990), cert. denied 499 U.S. 932 (1991), the court concluded:

“The defendant does not alone have a burden of persuasion at this balancing stage, for the State is the movant, the party seeking the death penalty, and so bears the *1138 primary burden of persuading the jury that, as the statute states, there are no mitigating factors sufficient to preclude the sentencer from imposing die sentence of death for which the defendant is eligible. [Citation omitted.]” 137 Ill. 2d at 139 .

Further,

“because this is a process of balancing intangibles, not of proving facts, it is improper to speak of defendants as having a ‘burden.’ After the State as movant has attempted to persuade the jury the death sentence should be imposed, a defendant may attempt to dissuade the jury from doing so. Whether defendant attempts to dissuade the jury,-whether he decides to take up this burden, is up to him; die law does not require him to take it up.” 137 Ill. 2d at 140 .

In State v. Spain, 263 Kan. 708, 725 , 953 P.2d 1004 (1998), Spain was convicted and received a hard 40 sentence. His sentence was vacated and remanded. On remand, the trial court found one aggravating and one mitigating circumstance, and found them to be of equal weight. The trial court interpreted K.S.A. 1999 Supp. 21-4635(c) to require a hard 40 sentence when aggravators and mitigators were in equipoise. Spain was sentenced to a term of 40 years without parole. See State v. Spain, 269 Kan. 54, 58 , 4 P.3d 621 (2000).

On appeal, Spain argued that 21-4635(c) violated state and federal constitutional prohibitions against cruel and unusual punishment. He relied on death penalty cases, including Hulsey v. Sargent, 868 F. Supp. 1090 (E.D. Ark. 1993); People v. Young, 814 P.2d 834 (Colo. 1991); and State v. Biegenwald, 106 N.J. 13 , 524 A.2d 130 (1987), to support his argument. The State, as it did here, relied on Walton .

This court pointed out that the court in Young interpreted the Colorado Constitution to provide broader protection under its cruel and unusual punishment clause than that offered by the Eighth Amendment to the United States Constitution. For that reason, this court noted, Young distinguished Walton. 269 Kan. at 59 . In discussing Walton , this court stated:

“In Walton , five justices agreed the Arizona death penalty statute did not create an unconstitutional presumption in favor of the death penalty. The statute at issue in Walton required imposition of the sentence of death if any aggravating circumstances were established and there were “ ‘no mitigating circumstances sufficiently substantial’ ” to warrant leniency. [Citations omitted.] Although the language cho *1139 sen by the Arizona Legislature does not include the terms ‘weigh’ or ‘outweigh,’ what the statute prescribes is a weighing process that results in imposition of the death penalty if the mitigating circumstances are not of sufficient weight to tip the balance toward leniency.

“As previously noted, the Colorado Supreme Court interpreted its own constitutional provisions to grant greater protection than the comparable United States constitutional provision. Thus, Walton was not controlling. In contrast, this court has never extended greater protection to our citizens beyond the federal guarantees. [Citation omitted.]” (Emphasis added.) 269 Kan. at 59 .

This court reaffirmed that death penalty cases are not controlling in hard 40 cases. 269 Kan. at 59 . That said, this court quoted the following key passage from Walton:

“ ‘So long as a State’s method of allocating the burdens of proof does not lessen the State’s burden to prove every element of the offense charged, or in this case to prove the existence of aggravating circumstances, a defendant’s constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency.’ ” 269 Kan. at 60 (citing Walton, 497 U.S. at 650 ).

As the Fourth Circuit Court of Appeals stated, in summarizing the relevant Supreme Court philosophy:

“The procedure involved in imposing the death penalty need not be structured to favor a defendant but need only avoid creating a fundamentally unfair trial. See Barclay v. Florida, 463 U.S. 939 , 103 S. Ct. 3418 , 77 L. Ed. 2d 1134 (1983). The best of all procedural worlds is not guaranteed by the United States Constitution. McGautha v. California, 402 U.S. 183 , 91 S. Ct. 1454 , 28 L. Ed. 2d 711 (1971). In Zant v. Stephens, 462 U.S. 862 , 103 S. Ct. 2733 , 77 L. Ed. 2d 235 (1983), the Supreme Court emphasized that in designing a constitutional capita] punishment system, all that the state is required to provide is a meaningful basis for distinguishing between those trials resulting in a penalty of death and those in which a penalty of life imprisonment is imposed. Under Thant, this is accomplished by simply identifying aggravating circumstances and requiring that one or more of them be found.” Rook v. Rice, 783 F.2d 401, 406 (4th Cir. 1986).

Walton echoes this basic philosophy and is the seminal case in this area. While the wording of the Arizona statute in Walton is not identical to that of the Kansas statute, the operation is the same. The United States Supreme Court’s analysis bears repeating:

“So long as a State’s method of allocating the burdens of proof does not lessen the State’s burden to prove every element of the offense charged, or in this case to prove the existence of aggravating circumstances, a defendant’s constitutional *1140 rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency.” Walton, 497 U.S. at 650 .

With this simple framing of the issue, it is clear that Kansas’ statute passes constitutional muster. K.S.A. 21-4624(e) requires the State to prove one or more of the aggravating circumstances beyond a reasonable doubt. There is no burden on the defendant to prove mitigating circumstances; the jury may consider anything it considers a mitigating circumstance regardless of whether it has been “proven” or not. K.S.A. 21-4624(f) requires the court to review a death sentence imposed by a jury to ensure it is supported by the evidence. The fact that a death sentence results where aggravators and mitigators are found to be in equipoise does not lessen the State’s burden to prove the existence of aggravating circumstances.

Kleypas fails to explain how the Kansas scheme precludes the sentencer from considering any mitigating evidence, much less how the Kansas scheme forces the jury to disregard such evidence. Clearly the Kansas scheme allows, under K.S.A. 21-4624(e), consideration of any mitigating circumstances found to exist.

Justice Scalia’s pointed concurring opinion in Walton concluded that guided discretion and individualized sentencing as set forth in the cases cannot be reconciled. The majority’s treatment of the Arizona weighing equation, however, suggests that in an attempt to harmonize the two objectives, the Court has fashioned a safety valve of sorts. In effect, while holding in Lockett v. Ohio, 438 U.S. 586 , 57 L. Ed. 2d 973 , 98 S. Ct. 2954 (1978), that the substance of mitigating evidence cannot be restricted beyond a determination of its relevance, the Court in subsequent cases stops short of an “anything goes” approach to the defendant’s presentation of mitigating evidence by allowing the states to fashion the procedure or method by which mitigating evidence is considered. This is evident in Zant v. Stephens, 462 U.S. 862 , 77 L. Ed. 2d 235 , 103 S. Ct. 2733 (1983), and Franklin v. Lynaugh, 487 U.S. 164 , 101 L. Ed. 2d 155 , 108 S. Ct. 2320 (1988), where the Court refused to require a weighing equation, and in Blystone v. Pennsylvania, 494 U.S. 299 , 108 L. Ed. 2d 255 , 110 S. Ct. 1078 (1990), and Boyde v. California, *1141 494 U.S. 370 , 108 L. Ed. 2d 316 , 110 S. Ct. 1190 (1990), where the Court in summary fashion approved two states’ formulations of a weighing equation. Walton is an extension of Blystone and Boyde in that the Court once again faced the task of evaluating a particular type of weighing equation, and it refused to delve into the mechanics of the equation, focusing instead on the more basic requirements of whether the sentencer was allowed to consider all relevant mitigating evidence.

The Court’s development of Eighth Amendment jurisprudence on this issue suggests that the precise nature of any state’s weighing equation is not at issue. The weighing equation is part of the procedural makeup of the death penalty decision, and as long as it operates within a scheme which allows full consideration of relevant mitigating evidence, it is left to the broad discretion of the individual states.

In Walton , the Supreme Court did more than simply approve the particular wording of the Arizona weighing equation. It confirmed what its earlier decisions suggested — that the Eighth Amendment would be applied to the substance of the death penalty decision to ensure guided discretion and individualized consideration, but that procedural aspects, the weighing equation among them, would be left to the will of state legislatures. See Tuilaepa v. California, 512 U.S. 967, 980 , 129 L. Ed. 2d 750 , 114 S. Ct. 2630 (1994) (reiterating that the States are not constrained to “adopt a kind of mandatory sentencing scheme requiring a jury to sentence a defendant to death if it found, for example, a certain kind or number of facts, or found more statutory aggravating factors than statutory mitigating factors”); Buchanan v. Angelone, 522 U.S. 269, 276 , 139 L. Ed. 2d 702 , 118 S. Ct. 757 (1998) (“Our consistent concern has been that restrictions on the jury’s sentencing determination not preclude the jury from being able to give effect to any relevant mitigating evidence. . . . But we have never gone further and held that the state must affirmatively structure in a particular way the manner in which juries consider mitigating evidence.”); Campbell v. Blodgett, 978 F.2d 1502, 1512-13 (9th Cir. 1992).

*1142 The substance-procedure dichotomy thus renders unimportant the distinction, as raised by Kleypas, between the approved Arizona weighing equation and the Kansas weighing equation.

The balance of Kleypas’ arguments can be characterized as general complaints about the inherent unfairness of allowing a “tie,” or aggravators and mitigators found to be in equal balance, to result in a sentence of death. Kleypas couches this “tie goes to the State” argument in terms of a presumption of death and a burden on him to prove that his life should be spared. The visceral appeal of this argument is simply not supported by the Eighth Amendment.

Much of this appeal likely stems from thinking of the sentencing decision in terms of the State’s burden during the guilt phase of a trial. It is clear, however, that the guilt phase and sentencing phase are distinct and subject to different rules. In California v. Ramos, 463 U.S. 992 , 77 L. Ed. 2d 1171 , 103 S. Ct. 3446 (1983), the United States Supreme Court rejected an analogy between the two phases, noting

“the fundamental difference between the nature of the guili/innocence determination . . . and the nature of the life/death choice at the penalty phase. . . . In returning a conviction, the jury must satisfy itself that the necessary elements of the particular crime have been proved beyond a reasonable doubt. In fixing a penalty, however, there is no similar ‘central issue’ from which the jury’s attention may be diverted. Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty, as did respondent’s jury in determining the truth of the alleged special circumstance, the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment.” 463 U.S. at 1007-08.

If the Kansas death penalty scheme meets the Eighth Amendment requirements of guided discretion and individualized sentencing, the details of the weighing equation should not operate to defeat the balance of the death penalty law under the federal Constitution. That the Kansas weighing equation may or may not differ from that of Arizona is of little consequence; it is a matter of procedure left to the discretion of the States.