Petitioners Brief — Kansas v. Carr, 135 S. Ct. 2917 (2015) (No. 14-450)

No. 14-449, 450

In the Supreme Court of the Ginited States

STATE OF KANSAS,

Petitioner,

JONATHAN D. CARR AND

REGINALD DEXTER CARR, JR.,

Respondents.

On Writ of Certiorari to the

Supreme Court of Kansas

BRIEF FOR PETITIONER

DEREK SCHMIDT

Attorney General of Kansas

JEFFREY A. CHANAY

Chief Deputy Attorney General

STEPHEN R. MCALLISTER

Solicitor General of Kansas

(Counsel of Record)

KRrIsTAFER R. AILSLIEGER

Deputy Solicitor General

NATALIE CHALMERS

Assistant Solicitor General

Davip LOWDEN

Chief Assistant District Attorney

18” Kansas Judicial District

120 S.W. 10th Ave., 2nd Floor

Topeka, KS 66612

(785) 296-2215

steve.mcallister@trqlaw.com

June 2015 Counsel for Petitioner

Becker Gallagher Cincinnati,OH Washington, D.C. - 800.890.5001

i

CAPITAL CASE

QUESTIONS PRESENTED

1. Whether the trial court’s decision not to sever the

sentencing phase of the co-defendant brothers’ trial

here—a decision that comports with the traditional

approach preferring joinder in circumstances like

this—violated an Eighth Amendment right to an

“individualized sentencing” determination and was

not harmless in any event?

2. Whether the Eighth Amendment requires that a

capital-sentencing jury be affirmatively instructed

that mitigating circumstances “need not be proven

beyond a reasonable doubt,” as the Kansas Supreme

Court held here, or instead whether the Eighth

Amendment is satisfied by instructions that, in

context, make clear that each juror must

individually assess and weigh any mitigating

circumstances?

il

TABLE OF CONTENTS

QUESTIONS PRESENTED i

TABLE OF AUTHORITIES vi

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE

A. The Multiple Violent Crimes Underlying

These Cases. 2

B. The Extensive Trial and Detailed Penalty

Proceedings 5

C. The Kansas Supreme Court Reversed The

Death Sentences. 11

1. The Majority Ruled That Failure To Sever

The Penalty Phase Was Constitutional

Error. 12

a. Failure to Sever for Reginald Carr 12

b. Failure to Sever for Jonathan Carr 15

2. The Majority Ruled That The Instructions

Violated The Eighth Amendment Because

They Failed To Affirmatively Inform The

Jury That Mitigating Circumstances

Need Not Be Proven Beyond A

Reasonable Doubt. 16

en en

ill

3. One Dissent Disagreed That Failure To

Sever Was Constitutional Error And Both

Dissents Disagreed That There Was Error

In The Instructions. 17

SUMMARY OF THE ARGUMENT 20

ARGUMENT 25

I. The Joint Penalty Phase Proceeding Did Not

Violate The Eighth Amendment. Severance

Decisions Are Reviewed Only For An Abuse Of

Discretion And Require Defendants To Meet A

High Burden Not Satisfied Here. 25

A. The Reasons Joinder Is Generally Proper

And Desirable Apply Fully Here. The Eighth

Amendment Does Not Create A Per Se Bar

To Joinder In Capital Cases. 27

1. As A General Rule, Joinder Is Strongly

Favored, And There Is No Need For A

Special Or Contrary Rule In Capital

Cases. 27

a. This Court’s Cases Strongly Favor

Joinder. 27

b. The Court Has Recognized The Value

And Propriety Of Having A Single

Jury In Capital Cases Generally, And

Of Joinder In The Analogous Context

Of A Non-Capital Defendant Tried

With A Capital Codefendant. 31

iv

c. The Reasons For Permitting Joinder

Apply Fully In Capital Sentencing

Proceedings And, In Some Respects,

With Special Force. 33

2. Jurors Are Presumed To Follow Their

Instructions, And There Is No Reason Not

To Follow That Foundational Principle

Here. 36

3. Because There Is No Eighth Amendment

Right To Have A Capital Sentencing Jury

Consider “Mercy,” There Can Be No

Entitlement To Separate Penalty Phase

Proceedings On That Basis. 40

B. Severance Decisions Are Subject Only To

Abuse Of Discretion Review And Require

Defendants To Satisfy A High Burden, One

Not Met Here By Either Carr. 42

1. Neither Carr Met The “Heavy Burden” Of

Establishing “Compelling, Specific, And

Actual Prejudice.” 43

a. There Was No Compelling, Specific,

And Actual Prejudice To Reginald

Carr. 43

b. There Was No Compelling, Specific,

And Actual Prejudice To Jonathan

Carr. 47

2. Any Perceived Error Here Had To Be

Harmless Given The Overwhelming

Evidence Against Each Carr. 49

Vv

II. There Was No Reasonable Likelihood That The

Jury Applied The Instructions Here To Prevent

The Consideration Of Mitigating

Circumstances. 53

CONCLUSION 62

vi

TABLE OF AUTHORITIES

CASES

Blueford v. Arkansas,

566 U.S. __, 182 S. Ct. 2044 (2012)

Blystone v. Pennsylvania,

494 U.S. 299 (1990)

Boyde v. California,

494 U.S. 370 (1990)

Bruton v. United States,

391 U.S. 123 (1968)

Buchanan v. Angelone,

522 U.S. 269 (1998)

Buchanan v. Kentucky,

483 U.S. 402 (1987)

California v. Brown,

479 U.S. 538 (1987)

Commonwealth v. Rainey,

656 A.2d 1326 (Pa. 1995)

CSX Transp., Inc. v. Hensley,

556 U.S. 838 (2009) (per curiam)

Dawson v. State,

637 A.2d 57 (Del. 1994)

Deck v. Missouri,

544 U.S. 622 (2005)

Gregg v. Georgia,

428 U.S. 153 (1976)

21, 37

54

passim

29

23

31, 32, 33

21, 41

41

21, 36, 37

57

48

31

vil

Kansas v. Marsh,

548 U.S. 163 (2006)

Lockhart v. McCree,

476 U.S. 162 (1986)

Matheney v. State,

688 N.E.2d 883 (Ind. 1997)

Opper v. United States,

348 U.S. 84 (1954)

People v. Lewis,

28 P.3d 34 (Cal. 2001)

People v. Welch,

976 P.2d 754 (Cal. 1999)

Puiatti v. McNeil,

626 F.3d 1283 (11th Cir. 2010)

Richardson v. Marsh,

481 U.S. 200 (1987)

Saffle v. Parks,

494 U.S. 484 (1990)

State v. Gleason,

329 P.3d 1102 (2014)

State v. J. Carr,

329 P.3d 1195 (Kan. 2014)

State v. Johnson,

723 N.E.2d 1054 (Ohio 2000)

State v. Lafferty,

20 P.3d 342 (Utah 2001)

55

20, 31, 33

58

29, 42

41

57

34, 35

passim

21, 41

passim

41

41

vill

State v. R. Carr,

331 P.3d 544 (Kan. 2014) ]

United States v. Abfalter,

340 F.3d 646 (8th Cir. 2003) 43

United States v. Bernard,

299 F.3d 467 (5th Cir. 2002) 35

United States v. Clark,

989 F.2d 1490 (7th Cir. 1993) 43

United States v. Driver,

535 F.3d 424 (6th Cir. 2008) 43

United States v. Fazio,

770 F.3d 160 (2d Cir. 2014) 43

United States v. Gonzalez,

804 F.2d 691 (11th Cir. 1986) 43

United States v. Lane,

474 U.S. 438 (1986) 29

United States v. Marchant & Colson,

25 U.S. (12 Wheat.) 480 (1827) 27, 28

United States v. McConnell,

749 F.2d 1441 (10th Cir. 1984) 43

United States v. Pindell,

336 F.3d 1049 (D.C. Cir. 2003) 43

United States v. Thornton,

1 F.3d 149 (3d Cir. 1993) 43

United States v. Tipton,

90 F.3d 861 (4th Cir. 1996) 35

United States v. Wheeler,

802 F.2d 778 (5th Cir. 1986)

Weeks v. Angelone,

528 U.S. 225 (2000)

Zafiro v. United States,

506 U.S. 534 (1993)

CONSTITUTION AND STATUTES

18 U.S.C. § 3592(a)(4)

28 U.S.C. § 1257(a)

U.S. Const. amend. VI

U.S. Const. amend. VIII

U.S. Const. amend. XIV

43

23, 37

passim

26

1

12, 32

passim

1, 41

1

OPINIONS BELOW

The decisions of the Kansas Supreme Court are

reported, State v. R. Carr, 331 P.3d 544 (Kan. 2014),

State v. J. Carr, 329 P.3d 1195 (Kan. 2014), and are

reproduced as appendices to the respective Petitions for

Writ of Certiorari.

JURISDICTION

The Kansas Supreme Court decided these cases

July 25, 2014. This Court has jurisdiction under 28

U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Eighth Amendment to the United States

Constitution provides in relevant part that

“lelxcessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments

inflicted.” U.S. Const. amend. VIII.

The Fourteenth Amendment to the United

States Constitution provides, in pertinent part,

“.. nor shall any State deprive any person of life,

liberty, or property without due process of law ....” U.S.

Const. amend. XIV.

2

STATEMENT OF THE CASE’

A. The Multiple Violent Crimes Underlying

These Cases.

Reginald Carr, Jr., and Jonathan Carr, brothers,

were charged, jointly tried, convicted, and sentenced for

crimes committed in a series of three violent incidents

in December 2000 in Wichita, Kansas.

1. The Schreiber Carjacking. In the first

incident, on December 7, 2000, the respondents

carjacked Andrew Schreiber and drove to various

ATMs, forcing Schreiber at gunpoint to withdraw

money from his bank account. The Carrs ultimately

abandoned Schreiber in a rural area after taking his

watch, striking him in the head with a gun, and

shooting out the tires of his vehicle. RC App. 29-32.

2. The Walenta Murder. Four days later, the

respondents followed Linda Ann Walenta to her home.

As she pulled into her driveway, one of the Carrs

approached her vehicle and pointed a gun through the

driver’s side window. Walenta attempted to reverse her

vehicle and was shot. She survived for a few days, but

died from the shooting. RC App. 33-35.

' Kansas will refer to the appendices to the Petitions for Writ of

Certiorari by utilizing “RC App.” for Kansas v. Reginald Carr,

No. 14-450, and “JC App.” for Kansas v. Jonathan Carr, No. 14-

449. When the cited material in the appendices is the same,

Kansas cites the “RC App.” The parties deferred the printing of the

Joint Appendix until after the Respondents’ briefs were filed. After

the printing and filing of the Joint Appendix, Kansas filed this

brief substituting “JA” citations where possible.

3

3. The Birchwood Rapes, Torture, Robberies,

and Multiple Murders. The third and final incident

began on December 14, 2000, at a Birchwood

neighborhood home shared by three young men, Aaron

S., Brad H., and Jason B. Two women, Holly G. and

Heather M., also were at the home that night. RC

App. 35.

Shortly after the occupants of the house went to

bed, the Carrs, armed with guns, forced their way

inside. They rounded up the occupants, gathered them

into one bedroom, and demanded money. When the

victims said they had no cash, the Carrs demanded

ATM cards. The Carrs also ordered the victims to

remove their clothes and forced all five into a closet. RC

App. 35-36.

The Carrs then removed the two women from the

closet and forced them to perform oral sex on each

other and to penetrate each other with their fingers,

while the Carrs watched and gave instructions. Next,

the Carrs brought the male victims out of the closet one

at a time and ordered each to have sexual intercourse

with Holly G. The Carrs threatened to shoot the men if

they did not perform. When one victim said he would

not do it, he was struck in the back of the head with a

hard object. RC App. 37-38.

The Carrs next ordered each of the men to have

sexual intercourse with Heather M. After these

numerous coerced sex acts, Reginald drove Brad H. to

several ATMs to withdraw money. While they were

gone, Jonathan raped Holly G., and then raped or

attempted to rape Heather M. RC App. 38-39, 61.

4

Brad H. and Reginald returned after about 30

minutes, and Reginald then took Jason B. to two ATMs

to withdraw money. Upon their return, Reginald took

Holly G. to several ATMs to withdraw money. Finally,

Reginald returned with Holly G. and took Aaron S. to

withdraw money. RC App. 39-41, 62-63.

When Reginald and Aaron S. returned, Reginald

raped Holly G. and forced her to perform oral sex.

Meanwhile, Jonathan raped Heather M. again, and

then raped Holly G. again. RC App. 41-42.

After these rapes, the Carrs forced the men into the

trunk of Aaron S.’s car, put Heather M. in the back

seat of the car, and put Holly G. in the passenger seat

of Jason B.’s truck. Jonathan drove Aaron S.’s car,

followed by Reginald driving Jason B.’s truck. The

Carrs drove to a soccer field and ordered all of the

victims out, forcing them to kneel in a line. The Carrs

then shot each of the five victims in the back of the

head, and drove away. RC App. 43-44, 57-58.

Miraculously, Holly G. survived. The bullet fired at

her head fractured her skull, but did not enter her

brain, apparently because a plastic hairclip she was

wearing deflected the bullet. The impact stunned Holly

G., but she remained kneeling until one of the Carrs

kicked her to the ground. She could hear the Carrs

talking, and felt the impact when one of them drove

Jason B.’s truck over her body as they left. RC App. 44-

46, 57.

After the Carrs left the murder scene, Holly G. got

up and used the only piece of clothing she had in a

futile effort to bandage Jason B.'s fatal head wound.

She then spotted lights from a house in the distance.

5

Naked, barefoot, shot in the back of the head, and

having been run over by a vehicle, she somehow

managed to travel more than a mile through snow and

over fences to reach the house. RC App. 44, 57, 496.

Holly G. pounded on the door and awoke the

homeowners, who took her inside and called 911. Holly

G. survived her numerous serious injuries. The other

four victims, however, died. Holly G. provided police

with details of these heinous crimes and eventually

would testify against the Carrs at trial. RC App. 44-45,

57-58.

Soon after the murders the police apprehended

Reginald. When he was arrested, Reginald had a gas

card bearing Jason B.’s name, a watch that belonged to

Heather M., and $996. Inside the apartment where the

police arrested Reginald, they found numerous

additional items belonging to the four murder victims

and Holly G. RC App. 51-52.

Meanwhile, Jonathan was at a friend’s apartment.

When the friend and her mother saw news footage of

Reginald’s arrest and learned that police were looking

for another individual, they grew suspicious of

Jonathan and called police. Police arrived and

apprehended Jonathan. Like Reginald, Jonathan had

property of the victims, including the engagement ring

Jason B. had purchased for, but not yet given to, Holly

G. RC App. 52-55.

B. The Extensive Trial and Detailed Penalty

Proceedings.

The Carrs were charged with and convicted of

numerous offenses arising from their crime spree,

including the felony murder of Walenta, and four

6

capital murders of Aaron S., Brad H., Jason B., and

Heather M. RC App. 25-27. They were tried jointly in

the guilt phase.

After both Carrs were convicted of capital murder,

the court conducted a joint penalty proceeding. The

State’s case-in-chief for the penalty phase consisted

solely of relying on the State’s guilt-phase evidence

already presented. JA 73-74. The State argued that the

guilt-phase evidence established four aggravating

factors applicable to each Carr:

(1) That the defendant knowingly or

purposely killed or created a great risk of

death to more than one person.

(2) That the defendant committed the crime

for the defendant’s self or another for the

purpose of receiving money or any other

thing of monetary value.

(3) That the defendant committed the crime

in order to avoid or prevent a lawful

arrest or prosecution.

(4) That the defendant committed the crime

in an especially heinous, atrocious or

cruel manner.

RC App. 502-503, 505-506.

In mitigation, the Carrs offered extensive evidence

of their childhoods, including various events, incidents,

and experiences. They presented that evidence through

the testimony of family members, in particular their

mother, sister, an aunt and two cousins. Sentencing Tr.

Vol. 41-A, at 36-138, Vol. 41-B, at 31-48 (mother); Vol.

7

41-B, at 64-121 (sister); Vol. 41-B, at 122-141, Vol. 43-

B, at 52-142 (aunt); Vol. 42, at 106-141 (cousin); Vol.

45-B, at 142-152, Vol. 46, at 5-26 (cousin). Each Carr

also presented a forensic psychologist to testify as an

expert about the psychological effects each Carr’s

childhood had on him. Sentencing Tr. Vol. 43-A, at 17-

123, Vol. 43-B, at 5-50 (Dr. Reidy for Reginald); Vol. 45-

A, at 4-145, Vol. 45-B, at 4-140 (Dr. Cunningham for

Jonathan). They also presented a retired medical

doctor, Dr. Preston, as an expert witness, who opined

that both Reginald and Jonathan showed abnormal

brains on PET scans performed in preparation for these

cases. Sentencing Tr. Vol. 42, at 6-105.

Reginald presented evidence that he tries to be a

good father to his three children. Sentencing Tr. Vol.

42, at 113-114, 172-173, 181. Jonathan presented

evidence that he was considered a good kid growing up,

and some evidence that he was negatively influenced

by his brother. E.g., Sentencing Tr. Vol. 41A, at 116;

Vol. 42, at 149; Vol. 43-A, at 6.

The only evidence that the State responded to with

rebuttal evidence was the expert testimony that each

brother showed brain abnormalities. In that regard, the

State presented a neuroradiologist, Dr. Pay, who

testified that the PET scans of Reginald and Jonathan

showed normal brains. Sentencing Tr. Vol. 46, at 34-90.

In any event, in closing argument, Jonathan’s counsel

acknowledged that the “brain injury” evidence was not

intended to show that a brain injury caused Jonathan

to commit the crimes or somehow excused his

commission of the crimes. JA 429.

8

The State did not contest that the Carrs had

troubled childhoods, that their parents had many

problems, that Reginald took some actions to be a good

parent to his children, that Jonathan was considered

by some to be a good kid growing up, or that Jonathan

was influenced at times by his older brother. All of that

evidence was essentially uncontested.

At the close of the sentencing phase evidence, the

trial court conducted a jury instruction conference that

was extremely short, taking up less than five pages in

the transcript. JA 373-376. Neither defendant objected

to the instructions on mitigation. Nor did either

defendant propose a mitigation instruction that said

anything about burden of proof. Nor did either

defendant suggest or argue that the instructions as

proposed would confuse the jurors because the

instructions included a “beyond a reasonable doubt”

burden of proof for aggravating factors but no burden

of proof for mitigating circumstances. Id.

The trial court instructed the jury that, in

determining the sentence for each defendant, “you

should consider and weigh everything admitted into

evidence during the guilt phase or the penalty phase of

this trial that bears on either an aggravating or a

mitigating circumstance.” Instruction No. 2, RC

App. 500. Further, the trial court emphasized to the

jury that “[yjou must give separate consideration to

each defendant. Each is entitled to have his sentence

decided on the evidence and law which is applicable to

him. Any evidence in this phase that was limited to

only one defendant should not be considered by you as

to the other defendant.” Instruction No. 3, RC

App. 501.

9

With respect to mitigation, the trial court instructed

the jury that “you may consider sympathy for a

defendant,” and the “appropriateness of exercising

mercy can itselfjbe a mitigating factor ....” Instructions

No. 6, 8, RC App. 503, 507. The court went on to

emphasize that the

determination of what are mitigating

circumstances is for you as jurors to decide

under the facts and circumstances of the case.

Mitigating circumstances are to be determined

by each individual juror when deciding whether

the State has proved beyond a reasonable doubt

that the death penalty should be imposed. The

same mitigating circumstances do not need to be

found by all members of the jury in order to be

considered by an individual juror in arriving at

his or her decision.

Instructions No. 6, 8, RC App. 504, 507. The trial court

then instructed the jury on six statutory mitigating

circumstances (no prior criminal history, mental or

emotional disturbance, defendant was a relatively

minor accomplice, extreme duress or domination by

another, term of imprisonment will protect the public,

and age of the defendant), but made clear that

mitigating circumstances, unlike aggravating factors,

were not limited to the statutory list: “You may further

consider as a mitigating circumstance any other factor

which you find may serve as a basis for imposing a

sentence of less than death. Each of you must consider

every mitigating circumstance found to exist.”

Instruction Nos. 6, 8, RC App. 505, 508 (emphasis

added).

10

During closing arguments, neither Carr tried to put

the blame on the other, nor did either Carr argue that

he was less culpable than the other. Instead, both

Carrs focused on evidence of their childhoods, arguing

that such a background favored giving them life

sentences rather than death. JA 405-423, 426-433.

Furthermore, the Carrs’ closing arguments

emphasized the individuality of each defendant, with

counsel for Reginald arguing at length about the

reasons to show mercy to Reginald. Referring to

“Reggie” numerous times, Reginald’s counsel detailed

the mitigating evidence relating to “Reggie,” and never

once mentioned “Jonathan.” JA 405-423. Similarly,

though briefer overall in his closing, Jonathan’s counsel

referred to Reginald only once and even then not by

name, when he mentioned that Jonathan “has come to

court every day, unlike his brother.” JA 431. Also,

Jonathan’s counsel emphasized that “[y]ou know, any

one of you can decide to save this young man’s life. Any

one of you.” JA 433.

Simply put, the vast majority of sentencing phase

evidence was not antagonistic as between the two

Carrs, nor did either Carr, much less both, attempt in

closing argument to put the blame for the crimes on the

other. Instead, each Carr focused his efforts to

establish mitigating circumstances on demonstrating

his individual history, his upbringing, his family

situation, and his life experiences. JA 405-423, 426-

433.

The jury explicitly found the existence of all four of

the aggravating factors the State alleged for each

defendant, and that those factors were not outweighed

by any mitigating circumstances. Verdict Form (1),

11

JA 461-462 (Reginald); JA 477-478 (Jonathan). The

jury declined to utilize either of the other two verdict

forms provided. See Verdict Form (2), JA 463

(Reginald) (to be used if the jury found no aggravating

circumstances had been proved beyond a reasonable

doubt); JA 479 (Jonathan) (same); Verdict Form (3),

JA 464 (Reginald) (to be used if the jury was unable to

reach a unanimous verdict sentencing the defendant to

death); JA 480 (Jonathan) (same).

The trial court sentenced both Reginald and

Jonathan to death for the capital murder convictions.

The court gave each a life sentence for the Walenta

murder, and additional terms of imprisonment for

other convictions. RC App. 27.

C. The Kansas Supreme Court Reversed The

Death Sentences.

The Kansas Supreme Court affirmed 32 of

Reginald’s 50 convictions, including one count of capital

murder. RC App. 28. The court also affirmed 25 of

Jonathan’s 43 convictions, including one count of

capital murder. JC App. 26.

But a majority of the court reversed the death

sentences, finding three constitutional errors in the

penalty proceedings, two of which are under review

here: (1) each Carr’s Eighth Amendment right to an

individualized sentencing determination was violated

by the trial court’s decision not to sever their penalty

phase proceedings, RC App. 404-414, JC App. 45; and

(2) the trial court’s failure to affirmatively inform the

jury that mitigating circumstances need not be proved

beyond a reasonable doubt violated the Eighth

12

Amendment. RC App. 445-446, JC App. 47.’ This Court

granted review of these two issues.°

One justice dissented on both issues, and would

have affirmed the death sentences. RC App. 483-497;

JC App. 65-66. Another justice dissented only from the

jury instructions holding. RC App. 481-483; JC App.

63-65.

1. The Majority Ruled That Failure To

Sever The Penalty Phase Was

Constitutional Error.

a. Failure to Sever for Reginald Carr

For the severance issue, the Kansas Supreme Court

only discussed Reginald’s claim in full. The court began

by observing that Reginald asserted the failure to sever

“violated his Eighth Amendment to the United States

Constitution right to an individualized capital

sentencing determination ....” RC App. 404-405. The

court then asserted that “J.Carr makes at least one

distinct argument in favor of severance in the penalty

phase: He asserts the joint trial inhibited the jury’s

individualized consideration of him because of family

? In deciding this issue, the Kansas Supreme Court relied on its

opinion in State v. Gleason, 329 P.3d 1102 (2014), released only one

week earlier, to explain its reasoning. This Court granted review

of Gleason, No. 14-452, which is being briefed and argued

simultaneously with these cases.

* The third constitutional error the Kansas Supreme Court found

was that the Carrs’ Sixth Amendment right to confrontation was

violated by the admission of hearsay evidence in the sentencing

phase. RC App. 421-424. The State included that question in its

petitions, but the Court has taken no action on that question.

13

characteristics tending to demonstrate future

dangerousness that he shared with his brother.” Jd. at

405. The court also noted that “[ajlthough R. Carr’s

visible handcuffs are not specified as another source of

prejudice to J. Carr, they also factor into our decision

ave

The Kansas Supreme Court purported to

acknowledge that the Eighth Amendment “does not

categorically mandate separate penalty phase

proceedings for each codefendant in a death penalty

case.” RC App. 406. The court then proceeded to

identify what appear to be its three main rationales for

finding error in the trial court’s decision not to sever

the penalty phase here:

(1) Because capital sentencing is about moral

culpability, “mercy from a single juror is all it takes to

send a capital defendant to prison rather than to

execution,” thus “[mJercy may overcome even the most

obvious imbalance between forceful evidence of

aggravators from the State and a defense mitigation

case that is so weak it would not pull the skin off a rice

pudding,” RC App. at 408-409;

(2) J. Carr’s lawyer cross-examined the

codefendants’ sister, Temica, and elicited a statement

from Temica that Reginald may have told her, during

14

a visit to him in jail, that he was the shooter, id. at

409-410‘; and

(3) “(This is a rare instance in which our usual

presumption that jurors follow the judge’s instructions

is defeated by logic.” Jd. at 411. The court’s only

explanation for the third rationale was that “the

maelstrom that was [the codefendants’] family and

their influence on and interactions with one another,

including testimony that tended to show that R. Carr

was a corrupting influence on J. Carr,” id., required the

legal conclusion that “the penalty phase evidence

simply was not amenable to orderly separation and

analysis.” Id.

After concluding that the failure to sever the

penalty phase violated the “Eighth Amendment right

to an individualized capital sentencing,” RC App. 412,

the Kansas Supreme Court very briefly considered the

following question: “Can this error be considered

harmless?” /d. The court articulated the harmless error

standard as “not whether a death penalty sentence

would have been imposed but for the error,” id. at 413,

* The court recognized that Temica’s testimony might have been

admitted against R. Carr (who called her as his mitigation witness)

in a penalty phase proceeding even if severed, RC App. 409, that

there is no evidence the State was aware that she might give such

testimony (it was very “possible that the State was completely

unaware of R. Carr’s admission to Temica,” id. at 410), and that

when the State did cross-examine Temica she was vague and

equivocal: “I believe I heard him tell me something like that. I

don’t remember ... like when he asked me who he shot and all that,

I don’t remember who was, you know, shot by who.” /d.

Furthermore, the vast majority of Temica’s testimony was about

family dynamics and childhood experiences, because she is the

oldest child in the family. See JA 131-158.

15

but instead as “whether the death verdict actually

rendered in this trial was surely unattributable to the

error.” Id.

The court’s sole sentence of “rationale” applying this

standard consists of the following:

The evidence that was admitted, the

especially damning subset of it that may not

have been admitted in a severed proceeding, and

the hopelessly tangled interrelationship of the

mitigation cases presented by the defendants

persuades us that the jury could not have

discharged its duty to consider only the evidence

limited to one defendant as it arrived at their

death sentences.

Id. Thus, the Kansas Supreme Court concluded that

“(wile cannot say that the death verdict was

unattributable, at least in part, to this error,” id., and

it reversed Reginald’s death sentence.

b. Failure to Sever for Jonathan Carr

For Jonathan Carr’s claim regarding severance, the

Kansas Supreme Court said very little, summarizing

its conclusion: “A majority of six members of the court”

find a constitutional violation (1) “for the reasons

explained in Section Pl of the R. Carr opinion,”

(2) “because of the family circumstances argument

raised by J. Carr,” and (3) “the prejudice to J. Carr

flowing from R. Carr’s visible handcuffs during the

penalty phase.” JC App. 45. With that, the Kansas

Supreme Court reversed Jonathan’s death sentence.

16

2. The Majority Ruled That The

Instructions Violated The Eighth

Amendment Because They Failed To

Affirmatively Inform The Jury That

Mitigating Circumstances Need Not Be

Proven Beyond A Reasonable Doubt.

The Kansas Supreme Court resolved the mitigation

instruction question on the basis of its then recent

decision in Kansas v. Gleason, and commented only

minimally as follows:

When nothing in the instructions mentions

any burden other than “beyond a reasonable

doubt,” jurors may be “prevented from giving

meaningful effect or a reasoned moral response

to” mitigating evidence, implicating a

defendant’s right to individualized sentencing

under the Eighth Amendment. State v. Gleason.

This is unacceptable.

Were we not already vacating R. Carr’s death

sentence on Count 2 and remanding the case

because of Judge Clark’s failure to sever the

penalty phase, error on this issue would have

forced us to do so.

RC App. 446 (full citations omitted).

17

3. One Dissent Disagreed That Failure To

Sever Was Constitutional Error And

Both Dissents Disagreed That There

Was Error In The Instructions.

The dissenting justice’ on severance observed that

the “majority's discussion finding an Eighth

Amendment violation” in the trial court’s failure to

sever the penalty phase proceedings was “logically

flawed and, at times, difficult to follow.” RC App. 487.

Further, with regard to harmless error, “the majority’s

nearly nonexistent analysis goes entirely awry.” Id.

The dissent found any concern about codefendants

attempting to put the blame on each other both

insufficient to justify severance generally, and

misplaced here, especially, because “most of the two

brothers’ mitigating evidence was not antagonistic.” RC

App. 489. Furthermore, the fact that Temica’s

statements “might not have been admitted in the

penalty phase of a separate trial” did not create a

“constitutional violation.” Id.

The dissent harshly criticized the majority’s

“unsupported” analysis that the “jury did not follow its

explicit instructions” to consider each defendant

individually. RC App. 490. Indeed, the “majority’s logic

overlooks that this jury had already demonstrated its

ability to differentiate ... when it refused to convict

Jonathan Carr on counts related to the Schreiber

incident.” Id. “Instead, the majority vaguely offers a

° The dissenting justice on this issue was former Kansas Supreme

Court Justice Nancy Moritz, who is now a judge on the U.S. Court

of Appeals for the Tenth Circuit.

18

statement I cannot even loosely characterize as logical

.... Id. Thus, the dissent simply could “not agree with

the highly flawed and limited rationale offered by the

majority for finding constitutional error ....” Jd.

Assuming for the sake of argument that error had

occurred, the dissent “strongly disagree[d] with the

majority's conclusory, one-paragraph harmless-error

analysis ..... RC App. 491. “Reginald Carr’s death

penalty verdict must be attributed to the overwhelming

evidence of extreme terror, humiliation, pain, and

anguish inflicted upon the multiple victims.” Jd. In

fact, the dissent had “no hesitation whatsoever in

concluding that when viewed in light of the record as a

whole [any prejudice from joinder] had little, if any,

likelihood of changing the jury’s ultimate conclusion

....” Id. at 493. The jurors “heard overwhelming and

convincing evidence of heinous and atrocious acts

committed by Reginald Carr,” including from “Holly,

the unintended survivor of this savage attack. It is

nearly impossible to convey in a few short paragraphs

the overwhelming nature of that evidence.” Jd. at 493-

494.

The dissent concluded that the trial court did not

err in refusing to sever J. Carr’s penalty phase, JC Pet.

App. 65, and that, “even considering a joinder error in

the penalty phase, I would affirm the jury’s imposition

of the death penalty for Jonathan Carr.” Id. at 65-66.

The “mitigating evidence simply pales in comparison to

the aggravating circumstances,” id. at 66, and thus

° The dissent summarized that evidence in seven paragraphs, RC

App. 494-496, but in the interests of brevity the State addresses

that summary below in Section I.B.2. of the Argument.

19

“beyond a reasonable doubt {) the jury’s decision to

impose the death penalty was not attributable to any

joinder error below.” Jd. To the contrary, “the jury

imposed a sentence of death because it understood that

the horrendous circumstances called for that sentence.”

Id.

With respect to the mitigation instructions issue,

two Justices dissented, with Justice Biles issuing a

shortened version of his dissent in Kansas v. Gleason.’

' Kansas’ opening brief in Kansas v. Gleason describes the dissent

in Gleason. Kansas will not repeat that discussion here.

20

SUMMARY OF THE ARGUMENT

Nothing in this Court’s precedents mandates

severance in capital cases as an Eighth Amendment

requirement to insure defendants receive

individualized sentencing. The Kansas Supreme

Court’s reasoning and holding in these cases—which

effectively makes severance mandatory, given that

codefendants are likely to always try to lessen their

own moral culpability in comparison to each other—is

contrary to the long-standing preference for joint trials

in the criminal justice system. Richardson v. Marsh,

481 U.S. 200, 209-210 (1987); Zafiro v. United States,

506 U.S. 534 (1993). Nothing about the Carrs’ penalty

proceedings required severance here.

“Joint trials generally serve the interests of justice

by avoiding inconsistent verdicts and enabling more

accurate assessment of relative culpability—

advantages which sometimes operate to the defendant’s

benefit.” Richardson, 481 U.S. at 210. But, “[e)ven

apart from these tactical considerations, joint trials

generally serve the interests of justice by avoiding the

scandal and inequity of inconsistent verdicts.” Id.

Furthermore, “it seems obvious that in most, if not all,

capital cases much of the evidence adduced at the guilt

phase of the trial will also have a bearing on the

penalty phase: if two different juries were to be

required, such testimony would have to be presented

twice, once to each jury.” Lockhart v. McCree, 476 US.

162, 181 (1986).

The “individualized sentencing” principle is not

incompatible with joint penalty phase proceedings, and

may even be enhanced in such proceedings. The same

considerations that favor joinder in the guilt phase

21

remain in play during the sentencing phase. Forcing

the States to utilize multiple, separate, and largely

repetitive sentencing hearings before the same jury or

even different juries would have several undesirable

consequences. Such an approach could permit one or

more capital defendants to preview the State’s penalty

phase evidence and arguments, increasing the

possibility of inconsistent and inequitable verdicts.

Such an approach elso would greatly increase the time

commitments of jurors and the resources required to

try these proceedings. Lastly, mandating separate,

repetitive proceedings also could work to the detriment

of victims who might have to testify in multiple

proceedings.

Instead, the rule is that jury instructions are

sufficient to cure any risk of prejudice from joinder.

Zafiro, 506 U.S. at 540-541. Contrary to the holding of

the Kansas Supreme Court, juries can be presumed to

follow instructions explicitly informing them each

defendant must be given individualized consideration

in determining the sentences. This Court long has

embraced and emphasized the presumption that juries

follow their instructions. Richardson, 481 U.S. at 211;

CSX Transp., Inc. v. Hensley, 556 U.S. 838, 841 (2009)

(per curiam); Blueford v. Arkansas, 566 U.S. __, 132

S. Ct. 2044, 2051 (2012). No logical rationale exists to

disregard the presumption here.

Further, there is no Eighth Amendment right to

have a capital sentencing jury consider mercy.

California v. Brown, 479 U.S. 538 (1987) (jury can be

instructed not to consider mercy or sympathy); see also

Saffle v. Parks, 494 U.S. 484 (1990) (contention that

Eighth Amendment requires jury be allowed to base

22

capital sentencing decision on sympathy for defendant

would be a “new rule” not applicable on federal habeas

review). As a result, the Eighth Amendment cannot

mandate separate sentencing proceedings on the

rationale that “mercy” can only be fully considered in

separate proceedings. Again, the Kansas Supreme

Court erred.

Finally, joinder is erroneous only when a defendant

can demonstrate actual and substantial prejudice, an

extremely high standard, and one that is rarely met.

Here, neither Carr can meet that high standard.

Moreover, any potential risk was cured both by the

instructions and the separate verdict forms. The

Kansas Supreme Court’s flimsy “rationales” for its

contrary conclusions simply do not withstand scrutiny.

Ultimately, the evidence supporting a death sentence

for each defendant in this case was overwhelming. The

repeated torture each defendant inflicted on the victims

was horrific.

Just as there was no basis in the Court’s precedents

for the Kansas Supreme Court’s severance rulings,

there likewise is nothing in the Court’s precedents

justifying the Kansas court’s holding that the Eighth

Amendment requires a jury in a death penalty

proceeding to be affirmatively instructed that

mitigating circumstances need not be proven beyond a

reasonable doubt. Indeed, that holding stands in stark

contrast to this Court’s precedents, and is both legally

and logically insupportable. Instead, the controlling

constitutional standard here is “whether there is a

reasonable likelihood that the jury has applied the

challenged instruction in a way that prevents the

consideration of constitutionally relevant evidence.”

23

Boyde v. California, 494 U.S. 370 (1990). The Boyde

Court relied on three factors to make that

determination, and those three factors demonstrate

there was no error here.

First, the language of the instructions did not

impose any burden of proof on the Carrs to prove

mitigating circumstances. In Buchanan v. Angelone,

522 U.S. 269 (1998), the Court made clear that the

Eighth Amendment does not require detailed

instructions on mitigation, or that any particular

requirements for mitigation be included in the jury

instructions. Instead, the Court emphasized that, with

respect to mitigation, the Eighth Amendment only

requires “that the sentencer may not be precluded from

considering, and may not refuse to consider, any

constitutionally relevant evidence.” 522 U.S. at 276.

Otherwise, “the state may shape and structure the

jury’s consideration of mitigation so long as it does not

preclude the jury from giving effect to any relevant

mitigating evidence.” Id. See also Weeks v. Angelone,

528 U.S. 225 (2000) (same holding).

Second, in this case, as in Boyde, the State did not

vigorously contest the existence of the mitigating

circumstances presented, apart from a battle of the

experts on whether the Carrs actually presented

evidence of demonstrable brain abnormalities. Rather,

the State focused its argument on the weight the jury

should give the proposed mitigators. Third, the parties’

closing arguments, the final factor under Boyde,

properly emphasized each jurors role to act

individually and independently to consider all

mitigating evidence.

24

Applying the Boyde standard and factors here, there

is no reasonable likelihood that jurors applied the

instructions to prevent the consideration of any

relevant mitigating evidence, or to prevent them from

giving whatever individual effect they chose to such

evidence. Thus, there was no Eighth Amendment

violation, and the Kansas Supreme Court was wrong.

25

ARGUMENT

I. The Joint Penalty Phase Proceeding Did Not

Violate The Eighth Amendment. Severance

Decisions Are Reviewed Only For An Abuse Of

Discretion And Require Defendants To Meet A

High Burden Not Satisfied Here.

Despite purporting to acknowledge that severance

is not constitutionally required in all capital penalty

phase proceedings, the Kansas Supreme Court

effectively established a per se rule requiring

severance. Kansas will refute each of the Kansas

Supreme Court’s rationales for that result below. But

there can be no doubt that the Kansas Supreme Court

ultimately found that the failure to sever the penalty

phase for these two capital defendants was Eighth

Amendment error because, in that court’s view, the

defendants each failed to receive the “individualized

sentencing” this Court has determined the Eighth

Amendment requires.

The Kansas Supreme Court’s ultimate conclusion

appears to rest on three primary contentions. First, the

court opined that the differentiation in the moral

culpability of codefendants necessarily affects the jury’s

ability to individually apply mercy to each defendant,

effectively making jonder in the penalty phase

constitutionally problematic in any capital case. RC

App. 407-409. Second, the court opined that some

evidence potentially harmful to Reginald might not

have been admitted in his sentencing proceeding had

he not been joined with Jonathan. Jd. at 409-411.

Third, the court opined that any severance problem

could not be cured by the jury instructions (which

properly and explicitly informed the jury that it was to

26

consider each defendant and the evidence against him

individually), allegedly because “this is a rare instance

in which our usual presumption that jurors follow the

judge’s instructions is defeated by logic.” Jd. at 411.

Thus, the Kansas Supreme Court concluded that “the

penalty phase evidence simply was not amenable to

orderly separation and analysis,” which resulted in an

Eighth Amendment violation. Jd. at 411-412.

That conclusion is wrong as a matter of federal

constitutional law for several reasons. First,

codefendants will virtually always attempt to

distinguish their moral culpability to avoid death

sentences, and capital sentencing schemes typically

permit them to do so as part of their mitigation

argument. See, e.g., 18 U.S.C. § 3592(a)(4) (Jury may

consider as mitigating factor that “[a]Jnother defendant

or defendants, equally culpable in the crime, will not be

punished by death.”). Moreover, many capital

sentencing schemes, like the Kansas scheme, permit

defendants to seek “mercy” from the jury and allow the

jury to consider mercy. Thus, the Kansas Supreme

Court’s first rationale for finding an Eighth

Amendment violation here effectively creates a per se

bar against joinder in the penalty phase of capital cases

under several] capital sentencing regimes.

Second, the evidence about which Reginald

complains was in fact offered by a witness he called; it

was not elicited by the State, and ultimately the

witness (his sister) equivocated significantly in her

testimony. The Kansas Supreme Court recognized that

the most it could say was that this evidence “might” not

have been admitted if there were separate penalty

proceedings, and the court further recognized the State

27

did nothing improper. That is not the stuff of which

Eighth Amendment violations are made.

Finally, the Kansas Supreme Court did not offer

anything in support of its bald assertion that here the

court could not accept the presumption that jurors

follow their instructions—not one sentence, not one

citation, and not one shred of evidence that such a

foundational presumption should be thrown out the

window. Instead, the Kansas Supreme Court’s finding

of an Eighth Amendment violation runs contrary to

almost 200 years of American legal history, and

conflicts with the strong, traditional presumptions in

favor of joinder in criminal cases and that juries can

and do follow their instructions.

A. The Reasons Joinder Is Generally Proper

And Desirable Apply Fully Here. The

Eighth Amendment Does Not Create A Per

Se Bar To Joinder In Capital Cases.

1. As A General Rule, Joinder Is Strongly

Favored, And There Is No Need For A

Special Or Contrary Rule In Capital

Cases.

a. This Court’s Cases Strongly Favor

Joinder.

The Court first addressed a challenge to the joint

trial of capital defendants almost 200 years ago; the

Court quickly and soundly rejected the challenge. In

United States v. Marchant & Colson, 25 U.S. (12

Wheat.) 480 (1827), the question was “whether two or

more persons, jointly charged in the same indictment

with a capital offence, have a right, by the laws of the

country, to be tried severally, separately, and apart ....”

28

Id. at 480. Writing for the Court, Justice Story declared

“it is a matter of discretion in the Court, and not of

right in the parties.” Jd.

The Court found no right to compel severance in

federal statutes, noting that “if the right can be

maintained at all, it must be as a right derived from

the common law ....” 25 U.S. at 480. The Court pointed

to Hawkins, Pleas of the Crown, for the proposition that

the common law “plainly supposes that it is in the

election of the prosecutor whether there should be a

joint or separate trial.” Jd. at 483. Otherwise,

lilf there had been any known right in the

prisoner to control this election, it seems

incredible that so accurate and learned an

author should not have stated it, when the

occasion indispensably required him to take

notice of a qualification so important to his text.

His silence is, under such circumstances, very

significant.

Id. Thus, the Court concluded that the question of

severance “is a matter of sound discretion, to be

exercised by the Court with all due regard and

tenderness to prisoners, according to the known

humanity of our criminal jurisprudence.” Jd. at 485.

This Court’s respect for the principles recognized in

Marchant & Colson has not changed or waned over

29

time. Instead, the Court has reaffirmed the

discretionary nature of severance decisions,® and

continued to express a clear preference for joint trials

in criminal cases generally. Most notably, perhaps, in

Zafiro v. United States, 506 U.S. 534 (1993), the Court

spoke emphatically of the “preference in the federal

system for joint trials of defendants who are indicted

together.” Jd. at 537. Pointing out that joint trials play

a vital role and serve the interests of justice, the Court

observed that “Iflor these reasons, we repeatedly have

approved of joint trials.” Id.

In Zafiro, the defendants urged the Court to “adopt

a bright-line rule, mandating severance whenever

codefendants have conflicting defenses.” 506 U.S. at

538. But the Court declined to do so, because

“[m]utually antagonistic defenses are not prejudicial

per se,” id., and “the tailoring of relief to be granted, if

any, [is left] to the district court’s sound discretion.” Jd.

at 539. Instead, a party seeking severance has to

demonstrate serious and actual prejudice: the

complainant’s burden is to establish that “there is a

serious risk that a joint trial would compromise a

specific trial right of one of the defendants, or prevent

® See, e.g., Opper v. United States, 348 U.S. 84, 95 (1954) (“It was

within the sound discretion of the trial judge as to whether the

defendants should be tried together or severally and there is

nothing in the record to indicate an abuse of discretion when

petitioner’s motion for severance was overruled.”) United States v.

Lane, 474 U.S. 438, 449 (1986) (“In common with other courts, the

Court long has recognized that joint trials ‘conserve state funds,

diminish inconvenience to witnesses and public authorities, and

avoid delays in bringing those accused of crime to trial.”) (quoting

Bruton v. United States, 391 U.S. 123, 134 (1968)).

30

the jury from making a reliable judgment about guilt or

innocence.” Id.

Even when a serious risk of prejudice is shown, the

Court in Zafiro observed that “less drastic measures,

such as limiting instructions, often will suffice to cure

any risk of prejudice.” 506 U.S. at 539. Moreover, the

Court emphasized two additional considerations that

generally weigh against severance. First, “it is well

settled that defendants are not entitled to severance

merely because they may have a better chance of

acquittal in separate trials.” Jd. at 540. Second,

generally any risk of prejudice “is of the type that can

be cured with proper instructions, and ‘juries are

presumed to follow their instructions.” Jd. at 540-541

(quoting Richardson, 481 U.S. at 211).

In other cases, the Court has emphasized that

“(joint trials generally serve the interests of justice by

avoiding inconsistent verdicts and enabling more

accurate assessment of relative culpability—

advantages which sometimes operate to the defendant's

benefit.” Richardson, 481 U.S. at 210. But, “[e]ven

apart from these tactical considerations, joint trials

generally serve the interests of justice by avoiding the

scandal and inequity of inconsistent verdicts.” Id.

The strong general presumption in favor of joinder,

and the foundations on which it rests, are not so

ephemeral that they evaporate and disappear in capital

proceedings merely because codefendants may attempt

to distinguish their respective moral culpability by

possibly blaming each other. In fact, both this Court

and the Circuits have recognized the value of utilizing

a single jury for capital cases in a variety of

circumstances.

31

b. The Court Has Recognized The Value

And Propriety Of Having A Single

Jury In Capital Cases Generally, And

Of Joinder In The Analogous Context

Of A Non-Capital Defendant Tried

With A Capital Codefendant.

This Court has recognized the propriety and

desirability of having a single jury hear entire capital

cases, and of joinder in circumstances that raise similar

considerations to those at issue in this case. First, in

Lockhart v. McCree, 476 U.S. 162 (1986), the Court

considered and rejected Eighth Amendment challenges

to Arkansas’ use of a “unitary jury in capital cases.” Jd.

at 180. The Court noted that it had upheld the Georgia

system against a similar attack in Gregg v. Georgia,

428 U.S. 153 (1976), and then proceeded to discuss two

critical reasons why a unitary jury makes sense in

capital cases: (1) “the defendant might benefit at the

sentencing phase of the trial from the jury’s ‘residual

doubts’ about the evidence presented at the guilt

phase,” 476 U.S. at 181; and (2) “it seems obvious that

in most, if not all, capital cases much of the evidence

adduced at the guilt phase of the trial will also have a

bearing on the penalty phase: if two different juries

were to be required, such testimony would have to be

presented twice, once to each jury.” Jd.

Second, the Court has rejected the claim that a non-

capital defendant’s guilt phase proceeding cannot be

joined with a capital codefendant. In Buchanan v.

Kentucky, 483 U.S. 402 (1987), a juvenile defendant

was charged with non-capital murder in connection

with a robbery, rape, and murder in which his adult

codefendant was charged with capital murder.

32

Defendant argued that his Sixth Amendment jury trial

rights were violated because in their joint trial he was

tried by a “death-qualified” jury due to his

codefendant’s capital murder charge.

The Court rejected the claim, pointing out that the

State has an “interest in promoting the reliability and

consistency of its judicial process, an interest that may

benefit the noncapital defendant as well.” Jd. at 418.

The Court emphasized that ‘[iJn joint trials, the jury

obtains a more complete view of all the acts underlying

the charges than would be possible in separate trials.”

Id. Such a perspective “is particularly significant

where, as here, all the crimes charged against the

joined defendants arise out of one chain of events.” Jd.

Furthermore, the State has a legitimate “concern that

it not be required to undergo the burden of presenting

the same evidence to different juries where, as here,

two defendants, only one of whom is eligible for a death

sentence, are charged with crimes arising out of the

same events.” Id. at 418-419.

Kansas recognizes that this case involves two

capital defendants, and they are making an Eighth

Amendment claim about their joint penalty proceeding,

obvious factual differences from Buchanan.

Nonetheless, the interests the Court addressed in

Buchanan are front and center here, including the

many advantages of joint trials for defendants as well

as the interests of justice.

33

c. The Reasons For Permitting Joinder

Apply Fully In Capital Sentencing

Proceedings And, In Some Respects,

With Special Force.

The reasons that support joinder apply with full

force to capital proceedings, including capital

sentencing proceedings. As this Court has recognized,

“(ijn joint trials, the jury obtains a more complete view

of all the acts underlying the charges than would be

possible in separate trials.” Buchanan, 483 U.S. at 418.

Such a perspective “is particularly significant where, as

here, all the crimes charged against the joined

defendants arise out of one chain of events.” /d.

Furthermore, the State has a legitimate “concern that

it not be required to undergo the burden of presenting

the same evidence to different juries where, as here,

two defendants ... are charged with crimes arising out

of the same events.” Jd. at 418-419.

Moreover, “{jjoint trials generally serve the

interests of justice by avoiding inconsistent verdicts

and enabling more accurate assessment of relative

culpability—advantages which sometimes operate to

the defendant’s benefit.” Richardson, 481 U.S. at 210.

But, “[e]ven apart from these tactical considerations,

joint trials generally serve the interests of justice by

avoiding the scandal and inequity of inconsistent

verdicts.” Jd. Furthermore, “it seems obvious that in

most, if not all, capital cases much of the evidence

adduced at the guilt phase of the trial will also have a

bearing on the penalty phase: if two different juries

were to be required, such testimony would have to be

presented twice, once to each jury.” Lockhart, 476 U.S.

at 181.

34

Even when a risk of prejudice from joinder is shown,

this Court in Zafiro observed that “less drastic

measures, such as limiting instructions, often will

suffice to cure any risk of prejudice.” 506 U.S. at 539.

Indeed, generally any risk of prejudice “is of the type

that can be cured with proper instructions, and ‘juries

are presumed to follow their instructions.” Jd. at 540-

541 (quoting Richardson, 481 U.S. at 211).

The Circuits have recognized that the Eighth

Amendment does not prohibit joint capital proceedings.

For instance, in Puiatti v. McNeil, 626 F.3d 1283 (11th

Cir. 2010), the Court of Appeals noted that, “[a]lthough

ldefendant’s] argument intertwines severance and

individualized sentencing,” id. at 1308, those are

separate arguments, and the two are not incompatible:

although Puiatti attempts to connect and

intertwine severance with his constitutional

right to an individualized sentencing

determination, we can locate, and Puiatti has

cited, no Supreme Court decision doing so.

Lockett and its progeny do not address joint

penalty phases or say that the presence of a co-

defendant at a capital defendant’s penalty phase

trial has any Eighth Amendment implications

whatsoever. None of the Lockett line of cases

relates to severance or helps Puiatti’s claim at

all. Puiatti ... cites no precedent that suggests a

joint penalty trial is improper for co-defendants

who were properly joined in the guilt phase. The

Supreme Court has never intimated, much less

held, that the special concerns in capital cases

require, or even suggest, that severance is

necessary.

35

Id. at 1315. In fact, a joint proceeding “avoid|s] the

inequity of inconsistent verdicts and one capital

defendant going second with the benefits of previewing

the State’s evidence and arguments.” Jd. at 1318.

Further, “the Lockett-Eddings-Penry-Abdul-Kabir

principle that the sentencer must be allowed to

consider and give effect to ‘all relevant mitigating

evidence,’ is quite compatible with a joint trial.” Jd.

Likewise, in United States v. Tipton, 90 F.3d 861

(4th Cir. 1996), the Fourth Circuit readily identified

several reasons supporting joinder in capital

sentencing proceedings: (1) the relevant federal

statutes “require that ... the penalty hearing shall be

conducted before the same jury that determined guilt,”

so severance “would have required [multiple] separate,

largely repetitive penalty hearings before this jury,” id.

at 892; (2) the same considerations that favor joinder in

the guilt phase “must remain generally in play at the

penalty phase,” id.; (3) any potential risk to

individualized sentencing “could not of course have

been entirely removed by conducting three sequential,

largely repetitive hearings before the same jury,” id.;

(4) “More critically, ... the court’s frequent instructions

on the need to give each defendant’s case individualized

consideration sufficed,” id.; and (5) individual

consideration was emphasized by “the court's

submission of separate packets of penalty verdict forms

for each defendant.” Jd. at 893. See also United States

v. Bernard, 299 F.3d 467 (5th Cir. 2002) (affirming

denial of motion to sever capital penalty phase

proceedings).

36

The Circuits, faithfully applying this Court’s

precedents, have gotten it right. The Kansas Supreme

Court stands alone and was wrong.

2. Jurors Are Presumed To Follow Their

Instructions, And There Is No Reason

Not To Follow That Foundational

Principle Here.

In concluding that reversal was required, the

Kansas Supreme Court turned an unquestioned legal

presumption on its head by refusing to believe the jury

could follow the instructions given here, instructions

that plainly required the jury to give each defendant

individualized consideration in determining the

sentences. The court’s rejection of such a foundational

principle is both unwarranted and contrary to the

Zafiro holding that any risk of prejudice arising from

joint proceedings generally can be cured by giving

proper jury instructions. 506 U.S. at 539.

In fact, if courts begin to question the presumption

that juries follow their instructions, judges will be

invited by disappointed litigants to second-guess the

unexplained decisions of juries. This Court has

explained that “the jury system is premised on the idea

that rationality and careful regard for the court’s

instructions will confine and exclude jurors’ raw

emotions.” CSX Transp., Inc. v. Hensley, 556 U.S. 838,

841 (2009) (per curiam). Thus, the Court long has

embraced tihe presumption:

The rule that juries are presumed to follow

their instructions is a pragmatic one, rooted less

in the absolute certitude that the presumption is

true than in the belief that it represents a

37

reasonable practical accommodation of the

interests of the state and the defendant in the

criminal justice process.

Richardson, 481 U.S. at 211.

The presumption is not discarded or altered in

capital cases: “Jurors routinely serve as impartial

factfinders in cases that involve sensitive, even life-

and-death matters. In those cases, as in all cases, juries

are presumed to follow the court’s instructions.” CSX

Transp., 556 U.S. at 841. Moreover, this Court has

applied the presumption in capital cases on a number

of occasions. See, e.g., Weeks v. Angelone, 528 U.S. 225,

234 (2000) (“A jury is presumed to follow its

instructions”); Blueford v. Arkansas, 566 U.S. __, 132

S. Ct. 2044, 2051 (2012) (same).

Here, in fact, the jury was explicitly instructed in

ways that made clear each juror’s obligation to consider

the defendants individually. For example, the trial

court expressly instructed the jury, at the

commencement of the penalty proceeding, that “[i|t is

the responsibility of the jury to decide the proper

sentence for the individual defendant in these [the

capital murder] counts.” JA 60. (emphasis added). The

trial court repeated that instruction at the end of the

penalty phase as well, just before the court read the

jury all of the instructions. JA 378. At the conclusion of

the penalty phase, the court instructed the jury as

follows:

You must give separate consideration to each

defendant. Each is entitled to have his sentence

decided on the evidence and law which is

applicable to him.

38

Any evidence in this phase that was limited

to only one defendant should not be considered

by you as to the other defendant.

RC App. 501 (Instruction No. 3). Furthermore, the jury

was given several individual instructions for each

defendant. In other words, there was an instruction on

aggravating circumstances for Reginald (Instruction

No. 5, RC App. 502-03), and one for Jonathan

(Instruction No. 7, RC App. 505-506). There was a

mitigation instruction for Reginald (Instruction No. 6,

RC App. 503-505), and one for Jonathan (Instruction

No. 8, RC App. 507-508).

Finally, the verdict forms and accompanying

instructions also distinguished the two defendants.

First, the jury was instructed that “[w]hen considering

an individual defendant,” the jury must find that there

are one or more aggravators and that they outweigh

any mitigation beyond a reasonable doubt. RC App. 509

(Instruction No. 10) (emphasis added). That same

instruction tells the jury that “[iJf you sentence the

particular defendant to death,” then the jury is to use

Verdict Form (1). Jd. (emphasis added). In addition, the

trial court gave the jury separate verdict forms for each

defendant. JA 387. There were three forms for each of

the four capital murder counts. The first verdict form

for Reginald, the one the jury used for all four capital

counts, found specific aggravating factors, found

“unanimously beyond a reasonable doubt that the

aggravating circumstances found to exist outweigh

mitigating circumstances found to exist,” and found

“the proper sentence for Reginald D. Carr is death.”

39

JA 461-462, 465-466, 469-470, 473-474.° The first form

for Jonathan, also the one the jury used for all four

capital counts, was identical except the jury found “the

proper sentence for Jonathan D. Carr is death.”

JA 477-478, 481-482, 485-486, 489-490.

Thus, the jury instructions and the verdict forms

plainly distinguished between the two defendants,

curing any risk of prejudice from joinder.’° The Kansas

Supreme Court offered no legal or logical reason for

discarding the presumption in this case, nor did it point

to any evidence in the record indicating or even

remotely suggesting that the jury might not have

followed its instructions to consider each defendant

individually. Instead, the court just baldly asserted

that there was a serious and presumed risk that the

jurors did not follow their instructions. That is not law,

nor is it traditional judicial review.

* The second verdict form was to be used if the jury found that no

aggravating circumstances had been proved beyond a reasonable

doubt. JA 463. The third verdict form was to be used if the jury

could not unanimously agree that a death sentence was proper. JA

464.

Notably, this same jury already had proven its ability to

distinguish between the Carrs and assess the evidence against

each individually when in the guilt phase the jury acquitted

Jonathan Carr of counts against him regarding the carjacking of

Andrew Schreiber, but convicted Reginald. RC App. 174; JC

App. 25.

40

3. Because There Is No Eighth Amendment

Right To Have A Capital Sentencing

Jury Consider “Mercy,” There Can Be

No Entitlement To Separate Penalty

Phase Proceedings On That Basis.

The Kansas Supreme Court erred when it relied on

the proposition that severance was required in order to

give full effect to the jury’s ability to consider “mercy”

in sentencing. Again, neither defendant was prevented

from presenting any allegedly mitigating evidence, or

from making any and all arguments to the jury about

sparing their lives, including a request for mercy.

Further, the jurors were instructed to consider each

defendant individually. That ought to be the end of the

matter.

But the Kansas Supreme Court at least implied, if

not effectively held, that because Kansas generously

permits capital sentencing juries to consider “mercy,””’

the Eighth Amendment requires that any capital

codefendants in Kansas necessarily have to be

sentenced separately in order for the jury to evaluate

“mercy” for each individual. Such a conclusion has no

basis in federal constitutional law.

First, consideration of mercy is not required by the

Eighth Amendment. This Court has held that States

instead constitutionally may preclude capital

sentencing juries from considering “mercy,” and may

explicitly instruct juries that they “must not be swayed

"In this case, the jury was instructed, “mercy can itself be a

mitigating factor in determining whether the state has proved

beyond a reasonable doubt that the death penalty should be

imposed.” RC App. 503-504.

4]

by mere sentiment, conjecture, sympathy, passion,

prejudice, public opinion or public feeling.” California

v. Brown, 479 U.S. 538 (1987). See Saffle v. Parks, 494

U.S. 484 (1990) (contention that Eighth Amendment

requires that juries be allowed to base capital

sentencing decision on sympathy for defendant would

be a “new rule” not applicable on federal habeas

review). State courts, likewise, uniformly have rejected

the notion that consideration of “mercy” is a federal

constitutional requirement. See e.g. People v. Lewis, 28

P.3d 34, 75 (Cal. 2001) (Eighth Amendment does not

require an instruction stating “liln determining

whether to sentence the defendant to life imprisonment

without possibility of parole, or to death, you may

decide to exercise mercy on behalf of the defendant.”);

State v. Lafferty, 20 P.3d 342, 373 (Utah 2001) (federal

constitution does not require an instruction telling

jurors they should be guided by mercy); State v.

Johnson, 723 N.E.2d 1054, 1076, 1080 (Ohio 2000)

(summarily finding no Eighth or Fourteenth

Amendment error in instruction that “fairness” and

“mercy” are to be excised from the definition of

mitigating factors); Commonwealth v. Rainey, 656 A.2d

1326, 1333-1334 (Pa. 1995) (counsel was not ineffective

for failing to request a mercy instruction since allowing

the jury unbridled discretion to grant mercy would be

clearly erroneous).

Second, the Kansas Supreme Court’s effective

holding does not follow from its apparent premise.

There is absolutely nothing inconsistent about

permitting the jury to consider “mercy” and conducting

a joint penalty phase proceeding. Indeed, the presence

of more than one defendant may in fact work to the

advantage of one or more other defendants in this

42

regard, by helping the jury to more accurately assess

the defendants’ relative blameworthiness and

culpability. Severance might well, in effect, work to the

detriment of some capital defendants when it comes to

“mercy.” Thus, this “rationale” of the Kansas Supreme

Court is inherently intertwined with that court’s

rejection of the foundationai principle that jurors are

presumed to follow their instructions which explicitly

tell the jury to consider each defendant individually.

Ultimately, the Kansas Supreme Court has

essentially held that the federal constitution mandates

automatic severance of all capital sentencing

proceedings in which a jury is permitted to consider

“mercy,” even though the Constitution does not require

that capital juries even be allowed to consider “mercy.”

Such a holding extends the Eighth Amendment’s

“individualized sentencing” requirement well beyond

the Court’s precedents, and produces illogical results.

The fact that Kansas gives juries broad discretion to

consider mitigation should not count against Kansas in

determining whether severance was constitutionally

required here.

B. Severance Decisions Are Subject Only To

Abuse Of Discretion Review And Require

Defendants To Satisfy A High Burden, One

Not Met Here By Either Carr.

This Court long has recognized that severance

decisions are subject only to abuse of discretion review

by appellate courts. E.g., Zafiro v. United States, 506

U.S. 534 (1993); Opper v. United States, 348 U.S. 84, 95

(1954). Although the Court has not been more specific

in its review of severance decisions, many Circuits have

been quite clear about the high burden a defendant

43

challenging joinder has to meet. Reading this Court’s

precedents, the Circuits have stated that a “district

court’s decision to deny severance is ‘virtually

unreviewable’ and will be overturned only if a

defendant can demonstrate prejudice‘so severe that his

conviction constituted a miscarriage of justice and that

the denial of his motion constituted an abuse of

discretion.” United States v. Fazio, 770 F.3d 160, 165-

66 (2d Cir. 2014) (internal citations omitted).

Similarly the Circuits emphasize that the defendant

challenging joinder bears a “heavy burden,” e.g., United

States v. Thornton, 1 F.3d 149, 153 (3d Cir. 1993);

United States v. McConnell, 749 F.2d 1441, 1444 (10th

Cir. 1984), to show “compelling, specific, and actual

prejudice,” e.g., Thornton, 1 F.3d at 153; United States

v. Driver, 535 F.3d 424, 427 (6th Cir. 2008); United

States v. Wheeler, 802 F.2d 778, 782 (5th Cir. 1986);

United States v. Gonzalez, 804 F.2d 691, 694-95 (11th

Cir. 1986), or “real,” “actual,” or “clear” prejudice. E£.g.,

United States v. Abfalter, 340 F.3d 646, 652 (8th Cir.

2003); McConnell, 749 F.2d at 1444; United States v.

Clark, 989 F.2d 1490, 1499 (7th Cir. 1993); United

States v. Pindell, 336 F.3d 1049, 1057 (D.C. Cir. 2003).

1. Neither Carr Met The “Heavy Burden”

Of Establishing “Compelling, Specific,

And Actual Prejudice.”

a. There Was No Compelling, Specific,

And Actual Prejudice To Reginald

Carr.

In reversing Reginald’s death sentence based on the

failure to sever the penalty proceedings, the court

relied on the following factors: (1) Jonathan “continued

44

the pattern he had set in the guilt phase by

emphasizing that [Reginald] was the more culpable

actor and a negative influence in [Jonathan’s} life,” RC

App. 406; (2) this mitigating factor created antagonistic

defenses because the mitigation evidence differentiated

between the brothers’ moral culpability and could have

impacted a juror’s decision to show mercy, RC App..

407-409; (3) Jonathan’s cross-examination of Temica

resulted in her testimony that, during a visit she made

to Reginald when he was in jail awaiting trial, he may

have admitted to shooting the victims, RC App. 409-

410; (4) Temica’s testimony could have negated any

juror’s willingness to show mercy based on residual

doubt regarding Reginald, or a belief that Jonathan

was the shooter, RC App. 410; and (5) Jonathan’s

mitigating evidence could have been considered by the

jury as improper, nonstatutory aggravating evidence

against Reginald. RC App. 411.

None of these “rationales” or the record supports a

finding that there was compelling, specific and actual

prejudice to Reginald. First, reading the penalty phase

transcripts and the parties’ closing arguments belies

the suggestions that Jonathan’s defense against the

death penalty was to blame Reginald, or that their

defenses were inherently or even significantly

antagonistic. Quite the contrary, the vast majority of

the mitigation evidence was overlapping and

complementary in showing and describing the

childhood experiences and family circumstances that

the brothers had shared. JA 79-85, 87, 92-94, 98;

Sentencing Tr. Vol. 41-A, at 44-45, 63-65, 78 (mother);

JA 134-135, 145-147 (sister); JA 345-346, 348-350

(cousin).

45

To similar effect, one forensic psychologist testified

about Reginald’s childhood and its effects on him, JA

224, 227-228, 234-237, 240-241; a different forensic

psychologist testified about the same matters with

regard to Jonathan. Sentencing Tr. Vol. 45-A at 89, 93-

94, 115-116, 129-133, 136; Vol. 45-B, 11-12, 17-20. In

addition, an expert opined that both Carrs showed

demonstrable brain abnormalities. JA 202; Sentencing

Tr. Vol. 42, at 53. No expert opined that Reginald was

the more culpable actor, or that Jonathan was less

culpable.

Finally, one will search the closing argument of

Jonathan’s counsel in vain for any suggestion that

Jonathan was seeking mercy by blaming Reginald.

Instead, just as Reginald did, Jonathan primarily

argued that his horrible childhood and bad life

experiences should sway the jury to give him a life

sentence. JA 425-431.”

The only other “prejudice” the Kansas Supreme

Court found was Reginald’s complaint that his sister

equivocally suggested he may have told her that he

shot some or all of the victims. But it is important to

remember that Temica was Reginald’s witness, and he

called her to testify as part of his mitigation case.

Furthermore, the State did not elicit the testimony

" There is absolutely no basis for the Kansas court’s assertion that

Jonathan’s evidence might somehow have been relied upon by the

jury as “nonstatutory” aggravation, not least because the jury was

plainly instructed that it could consider only the aggravating

circumstances the State asserted. RC App. 503, 506. Further, the

court does not even identify what evidence Jonathan presented

that arguably would fall into a category of “nonstatutory”

aggravation as opposed to mitigation.

46

about which Reginald complains, and in any event

Temica’s testimony was vague and equivocal.

The initial, brief statements Temica made came in

response to questions from Jonathan’s counsel}:

Q. Did Reggie tell you [during a visit she made

to him when he was in jail] he was the one who

shot those people?

A. Yes.

Q. Did he tell you he shot all of them?

A. I don’t remember the conversation.

JA 158. When the State later questioned Temica she

said the following:

Q. And you told us that your brother Reginald

Carr said that he personally shot these people?

A. I believe I heard him tell me something like

that. I don’t remember.

Q. You don’t remember?

A. Right. I believe he told me something like

that, but like when he asked me who he shot

and all that, I don’t remember who was, you

know, shot by who.

JA 180-181.

The Kansas Supreme Court recognized that the

most it could say was that this evidence “might” not

have been admitted if there were separate penalty

proceedings, and the court further recognized that the

State did nothing improper. This short and equivocal

47

testimony, from one of Reginald’s own witnesses,

testimony that very possibly would have been

presented even in a separate penalty proceeding, does

not meet the heavy burden of showing compelling,

specific and actual prejudice to Reginald.

b. There Was No Compelling, Specific,

And Actual Prejudice To Jonathan

Carr.

In reversing Jonathan’s death sentence, the Kansas

court summarily adopted the findings it had made in

Reginald’s appeal, and without explanation added that

the court was relying on the “family circumstances

argument” raised by Jonathan, and on prejudice to

Jonathan from Reginald’s visible handcuffs during the

penalty phase. JC App. 45.

The court’s reasoning, however, is inherently flawed

because the same rationales cannot be applied to both

Reginald and Jonathan. Remember, it was Jonathan’s

counsel who elicited the testimony from Temica about

Reginald’s alleged jailhouse confession. JA 158.

Necessarily, even if there was evidence of Reginald’s

heightened culpability presented in the sentencing

proceeding, such evidence likely would have helped

Jonathan, not prejudiced him.

The Kansas Supreme Court’s rationales regarding

Reginald utterly fail to resolve Jonathan’s severance

claim in his favor. Indeed, the court never articulated

how the failure to sever prejudiced Jonathan in any

way. Further, although the State is largely at a loss to

know what the “family circumstances” argument

consists of (Jonathan made no argument about “family

circumstances” in his briefs in the Kansas Supreme

48

Court, much less in his brief in opposition to Kansas’

petition for writ of certiorari in this Court), even

assuming that notion is based on expert and other

testimony about Reginald’s and Jonathan’s childhoods,

the evidence also clearly differentiated between the two

of them. None of the evidence about Reginald was

attributed to Jonathan.

For instance, Jonathan lived with an aunt in Texas

for over a year when he was nine, and then in Ohio for

a portion of time during his teenage years while

Reginald was in prison. In fact, this was the evidence

Jonathan relied on to argue “grave emotional harm”

from his separation from his family, especially his

siblings, at various times in his life. Sentencing Tr. Vol.

45-A, at 106. He also presented witnesses who testified

that he was a good person and good worker while ir

Ohio. Other witnesses who knew him from a

construction job in Dodge City, Kansas, testified that

Jonathan was a good kid when they knew him.

Sentencing Tr. Vol. 42, at 143, 149, 160-161; Vol. 43-A,

at 6. Additionally, there was evidence that Jonathan

attempted to commit suicide at least once, if not twice,

prior to committing the crimes in these cases.

Sentencing Tr. Vol. 45-A, at 89, 104.

Finally, the Kansas Supreme Court’s single,

unexplained assertion that Reginald wearing visible

handcuffs during the penalty phase proceeding

somehow prejudiced Jonathan leads nowhere. Although

this Court has held that shackling a capital defendant

during the guilt phase is per se error, Deck v. Missouri,

544 U.S. 622 (2005), the same is not true of the penalty

phase, which is the only phase at issue here. The

Kansas Supreme Court’s reference to Reginald’s

49

handcuffs somehow prejudicing Jonathan is even more

bizarre given that the Kansas court did not rely on

Reginald’s visible handcuffs as a justification for

granting severance to Reginald.

Reginald’s deliberate refusal to do anything to

conceal his handcuffs, JA 59, did not obviously or

automatically prejudice Jonathan. Instead, just the

opposite seems likely: seeing Reginald’s handcuffs but

not seeing any restraints on Jonathan might have

suggested to the jury that Jonathan was better

behaved than Reginald. In closing argument,

Jonathan’s counsel essentially made that point:

“|Jonathan) has come to court every day, unlike his

brother. And he has treated me like a gentleman. It’s

been my pleasure to represent him.” JA 431 (emphasis

added).

Ultimately, the Kansas Supreme Court failed to

articulate any reason based in the law or logic, or to

identify any facts in the record, to demonstrate

compelling, specific, and actual prejudice to Jonathan.

Denial of Jonathan’s request for severance was not

error, constitutional or otherwise.

2. Any Perceived Error Here Had To Be

Harmless Given The Overwhelming

Evidence Against Each Carr.

Even if the failure to sever the Carrs’ sentencing

proceedings somehow violated the Eighth Amendment,

any error was harmless. The Kansas Supreme Court

could arrive at a contrary conclusion only by ignoring

and discounting the overwhelming evidence of the

atrocities each Carr committed against multiple

victims.

50

In order to conclude any error was harmless, this

Court merely has to review the facts of the crimes.

Reginald’s purported confession (as hesitatingly and

equivocatingly relayed by his sister, Temica), and

Jonathan’s meager attempts to claim Reginald was a

negative influence on Jonathan, could not have made

any difference in the jury’s sentencing determinations

given the overwhelming evidence. As the dissent below

aptly summarized:

For more than 3 hours, Reginald and

Jonathan Carr inflicted their perverse form of

torture on the five victims in this case, forcing

their often naked captives to commit sexual acts

on one another as the two intruders watched.

Holly recounted that over those 3 hours she was

raped once by Reginald Carr, who after raping

her, grabbed her by the back, turned her around,

ejaculated into her mouth, and directed her to

swallow. The jury also heard Holly describe how

she was twice raped by Jonathan Carr, forced to

digitally penetrate herself, and forced into

sexual intercourse with Heather, Brad, Aaron,

and Jason.

When she was not being violated herself,

Holly sat naked in a closet with her fellow

captives, so terrified she wet herself, listening to

Heather moaning in pain as she repeatedly was

raped in the same fashion. Heather's moans

caused her boyfriend, Aaron, to break down,

sobbing and crying, “[T]his shouldn’t happen

this way.” Holly performed oral sex on Jason

while in the closet because one of the two

51

defendants threatened additional violence if the

men could not get an erection.

Each victim also was forced to leave the

Birchwood residence and travel alone with

Reginald Carr to withdraw money from his or

her bank accounts. Holly recounted her

experience, explaining she was clothed only in a

sweatshirt, and that Reginald Carr groped her

vagina while they were in the car. Holly asked

Reginald if he was going to kill them, and he

said “no.”

But any slight hope Holly might have had

that her life and the lives of her friends would be

spared was dashed when they returned to the

house and Reginald Carr told Holly, “[DJon’t

worry. I'm not going to shoot you yet.” Carr’s

threat proved true when the five victims were

taken at gunpoint into the garage, and Jason,

Brad, and Aaron were forced into the trunk of

Aaron’s car. Jonathan Carr then drove Aaron’s

car, with Heather seated on the passenger side,

while Reginald Carr drove Jason’s truck with

Holly seated on the passenger side.

The defendants then took their victims to a

soccer field in a remote location. They ordered

the men out of the trunk and ordered Heather

and Holly out of the car. Eventually, Reginald

Carr and Jonathan Carr forced each of their five

victims, who were naked or partially clothed, to

kneel next to each other, single file, on the snow-

covered ground in below freezing temperatures.

As these victims did so, surely each suspected

his or her fate.

52

Holly testified she heard one shot, then heard

Aaron pleading, and then “another shot and

another one and another one” as each victim was

shot, execution style, in the back of the head.

Then everything went briefly gray for Holly. But

even after being shot in the back of the head,

Holly remained kneeling. One of the defendants

kicked her in the back, causing her to fall face

forward in the snow. She heard the defendants

having a conversation before they drove off in

Jason’s truck. She felt an impact as the truck

ran over her.

After the two men drove off, Holly got up and

checked on the others, wrapping her only

remaining piece of clothing around Jason’s head

in a futile attempt to save his life. And then she

ran—terrified, naked, bleeding, and freezing for

over a mile to get help. Meanwhile, Reginald and

Jonathan Carr, unaware that Holly had

survived, returned to the home at Birchwood to

steal belongings from the victims and beat

Holly’s dog to death.

RC App. 494-496.

Kansas cannot sum up the situation better than the

dissenting justice did when, after reviewing the

preceding evidence, she concluded:

The majority gives lip service to the standard of

review.... But it entirely fails to conduct the

analysis. Had it done so, I do not believe it could

arrive at any conclusion other than that the

severance error, if any, had little, if any,

likelihood of changing the jury’s ultimate

53

conclusion. Instead, the court should hold that

this jury, which demonstrated its willingness to

independently assess the respective culpability

of each defendant, appropriately conducted the

required weighing of aggravating and mitigating

circumstances and concluded Reginald Carr

deserved the penalty of death.

RC App. 496-497.

Any error here, even assuming error can be found,

was harmless by any standard the Court might apply.

Il. There Was No Reasonable Likelihood That

The Jury Applied The Instructions Here To

Prevent The Consideration Of Mitigating

Circumstances.

Relying on its decision in State v. Gleason, 329 P.3d

1102 (2014), the Kansas Supreme Court ruled that the

trial court’s failure to affirmatively instruct the jury

that mitigating circumstances need not be proven

beyond a reasonable doubt was constitutional error. RC

App. 445-446. In Gleason, the court held that because

“the instructions repeatedly emphasized the State’s

burden to prove the existence of aggravating

circumstances beyond a reasonable doubt and to prove

beyond a reasonable doubt that the death penalty

should be imposed,” but “never informed or explained

to the jury that no particular burden of proof applied to

mitigating circumstances,” the Eighth Amendment was

violated. 329 P.3d at 1148.

54

The Court explained its reasoning as follows:

{the} jury was left to speculate as to the

correct burden of proof for mitigating

circumstances, and reasonable jurors might

have believed they could not consider mitigating

circumstances not proven beyond a reasonable

doubt. Thus, jurors may have been prevented

from giving meaningful effect or a reasoned

moral response to [the defendant’s) mitigating

evidence, implicating [the defendant’s] right to

individualized sentencing under the Eighth

Amendment.

329 P.3d at 1148.

The relevant instructions in the Carr cases were

virtually identical to those the Kansas Supreme Court

found deficient in Gleason. Thus, the same legal

arguments Kansas has made at length in its opening

brief in Kansas v. Gleason are incorporated by

reference.’* Kansas here will only summarize those

arguments and focus on facts and arguments specific to

the Carr cases.

Nothing in this Court’s precedents holds that the

Eighth Amendment mandates an_ instruction

affirmatively informing a capital sentencing jury that

mitigating circumstances are not subject to any

particular burden of proof. The Constitution only

requires that capital sentencing juries be allowed to

consider and give effect to all relevant mitigating

evidence. Blystone v. Pennsylvania, 494 U.S. 299, 307

(1990). So long as they do not prevent juries from

'S See Kansas Opening Brief in Kansas v. Gleason, at 23-42.

55

considering relevant mitigation, the States “are free to

determine the manner in which a jury may consider

mitigating evidence.” Kansas v. Marsh, 548 U.S. 163,

171 (2006). Thus, to the extent the Kansas Supreme

Court held that the Eighth Amendment requires a jury

in a capital sentencing proceeding to be affirmatively

instructed that mitigating circumstances need not be

proven beyond a reasonable doubt, that ruling is

erroneous.

Even if such an instruction were required as a

matter of Kansas law, that circumstance would not

establish an Eighth Amendment violation. Instead, the

controlling constitutional standard is articulated in

Boyde v. California, 494 U.S. 370 (1990): “the proper

inquiry in such a case is whether there is a reasonable

likelihood that the jury has applied the challenged

instruction in a way that prevents the consideration of

constitutionally relevant evidence.” Jd.

The Boyde Court relied on three factors to decide

whether the jury likely understood the instruction to

prevent the consideration of mitigating evidence. First,

the Court analyzed the language of the instructions

and concluded that there was no reasonable likelihood

that jurors would have read the challenged instruction

to prevent consideration of any mitigating

circumstances. Jd. at 381-382. Second, the Court

considered the actual evidence presented, pointing out

that the defendant had offered considerable mitigating

evidence with no opposition from the prosecution. Jd. at

384. Third, the Court considered the arguments of

counsel, and noted that the prosecutor never suggested

that the mitigation evidence in question could not be

considered. Jd. at 385. Putting these considerations

56

together, the Court concluded that there was no

reasonable likelihood the jury understood the

instructions to prevent the consideration of relevant

mitigating evidence.

Consideration of the three Boyde factors here leads

to the inevitable conclusion that the jury instructions

were constitutionally sound. As in Gleason, the jury

was told that the “State has the burden to prove

beyond a reasonable doubt that there are one or more

aggravating circumstances and that they outweigh

mitigating circumstances found to exist.” RC App. 501

(Instruction No. 4). Critically, the jury was told in

detail that it had complete freedom to consider and

assess mitigating circumstances:

The determination of what are mitigating

circumstances is for you as jurors to decide

under the facts and circumstances of this case.

Mitigating circumstances are to be determined

by each individual juror when deciding whether

the State has proved beyond a reasonable doubt

that the death penalty should be imposed. The

same mitigating circumstances do not need to be

found by all members of the jury in order to be

considered by an individual juror in arriving at

his or her sentencing decisions.

RC App. 504 (Instruction No. 6).

The instructions on their face thus emphasize that

jurors may consider virtually anything as mitigation,

and that such circumstances are “to be determined by

each individual juror.” Nowhere do the instructions

ever suggest that a burden of proof applies to

mitigation. To the contrary, the fairest reading of them

57

is that determining and considering mitigation is

within the unfettered discretion of each juror.

Indeed, there does not even have to be evidence at

all, because the instruction also informed the jury that

“lylou may further consider as a mitigating

circumstance any other factor which you find may

serve as a basis for imposing a sentence of less than

death.” RC App. 505. As a result, the instructions

would permit a juror to vote for a life sentence even if

virtually no mitigation evidence was presented, so long

as the juror concluded that “any other factor” such as

“mercy” or almost anything else outweighed any

aggravating factors.

Moreover, at least three state supreme courts have

reviewed virtually identical instructions and concluded

that the most natural reading of such instructions is

that there is no burden of proof for mitigation, not that

the jury would be confused and think that a “beyond a

reasonable doubt” standard applies. People v. Welch,

976 P.2d 754, 797 (Cal. 1999) (“because the trial court

instructed specifically that the reasonable doubt

standard applied (partially erroneously) to aggravating

factors, and mentioned nothing about mitigating

factors, the reasonable juror would infer that no such

reasonable doubt standard applied to mitigating

factors”); Dawson v. State, 637 A.2d 57, 64-65 (Del.

1994) (“in the absence of express guidance concerning

the proper burden of proof to establish the existence of

mitigating circumstances,” court would not “assume

that the jury applied the same ‘beyond a reasonable

doubt’ standard of proof that it was instructed to use in

determining whether the State had established the

existence of statutory aggravating circumstances”);

58

Matheney v. State, 688 N.E.2d 883, 902 (Ind. 1997) (“All

instructions to a jury on reasonable doubt place that

burden on the State,” and thus “[t]here is no inference

in any portion of a trial that defendant’s evidence

comes under that scrutiny.”).

Second, in its argument to open the penalty phase,

the State expressly told the jurors they had

considerable discretion to consider mitigation, broadly

defined: “mitigators” are “whatever they choose to

prove or show to lessen or to change any culpability

under the death penalty statute.” JA 62. Indeed, the

State made clear that “[a]nything, in fairness, may be

considered as extenuating or reducing the degree of

culpability or blame which justifies a sentence of less

than death ....” JA 63-64.

Similarly, Jonathan’s counsel told the jury that

“(mjitigating evidence is what you decide it is. You

decide how much mitigating evidence is worth.” JA 68.

And he emphasized the individualized nature of each

juror’s consideration: “what’s important to one juror

about mitigating might not be important to another.”

Id.

The State did not vigorously contest the existence of

most of the mitigating circumstances presented. Apart

from a battle of experts on the question whether either

Carr presented actual scientific or medical evidence of

demonstrable brain abnormalities, the State’s

argument focused almost entirely on the weight the

jury should give the proposed mitigators. In fact, the

State’s case-in-chief in the penalty phase consisted

entirely of resting on the evidence the State presented

in the guilt phase. The State offered no new evidence or

o9

witnesses to support its proof of aggravating factors.

See JA 73-74. |

1

The Carrs presented extensive evidence of their

childhoods and how their lives paralleled risk factors

the United States Department of Justice had identified

in people who commit violent crimes. JA 408-409. This

evidence included domestic violence in their home,

alcohol and drug abuse by their parents, being

abandoned, emotional detachment of their mother,

family history of mental illness, and beatings they

received when they misbehaved. JA 409-412, 415-417,

428, 430.

Reginald presented evidence of his early sexual

conduct and drug dealing. JA 414. He further

presented evidence that he tried to be a good father and

that his children loved him. JA 418. And he

emphasized that he would spend the rest of his life in

prison if the jury chose to let him live. JA 420-421.

Jonathan presented evidence that he suffered when

sent to another state to live with his aunt after he was

accused of rape in the third grade. JA 427. He also

presented evidence that he tried to commit suicide,

perhaps twice, had a learning disability, and had no

serious criminal record prior to these crimes. JA 428,

430. Jonathan also presented witnesses who

remembered him as a good person growing up. JA 431-

432. Finally, Jonathan reminded the jury that he would

spend at least 50 years in prison if the jury spared his

life. JA 432-433.

The only real point of contention regarding the

evidence was the claim made by both Reginald and

Jonathan that they had demonstrable brain

60

abnormalities. Their expert, Dr. Preston, a retired

doctor who was qualified as an expert in “nuclear

medicine,” testified about PET scans, and how they can

demonstrate the presence of brain abnormalities. His

opinion was that the PET scan of each Carr done in

preparation for this case showed abnormal brain

functioning. JA 201, 203-204; Sentencing Tr. Vol. 42, at

6-105.

The State’s only rebuttal witness in the penalty

proceeding, and its only rebuttal evidence, was Dr. Pay,

a neuroradiologist, who testified about PET scans and

whether those of the Carrs in fact showed brain

abnormalities. He disagreed with Dr. Preston’s

conclusions, testifying that he had consulted with a

number of his colleagues and their consensus was the

PET scans showed each Carr had a normal brain. JA

370-371; Sentencing Tr. Vol. 46, at 34-90.

Finally, the parties’ closing arguments (the third

Boyde factor), also made clear the jurors’ responsibility

to consider all of the mitigating evidence, broadly

defined, and did nothing to give the impression

mitigation could not be considered unless proven

beyond a reasonable doubt. The State acknowledged

that there had been “quite a bit of [mitigation]

evidence.” JA 392. The State reiterated that what

counts as a mitigating circumstance is “{s]}omething for

the jury to decide.” JA 396. The State certainly

challenged the weight to be given mitigation evidence

in comparison to the heinous nature of the crimes. E.z.,

JA 398-399. But with the exception of the brain

abnormality dispute, the State did not genuinely

challenge the existence of the mitigating circumstances

upon which either Carr relied. Rather, the State asked

61

the jury to consider whether anything either Carr

presented reduced his “degree of moral culpability.” JA

435. The State argued that the death penalty was

appropriate for each Carr because the aggravating

circumstances outweighed “any and all mitigation.” JA

404-405, 434-436, 442-443.

Reginald’s counsel emphasized that “[i]t is all for

you to consider ... whether you want to give [any

particular mitigating circumstance] any weight.” JA

408. Likewise, Jonathan’s counsel emphasized that “it

is for you to decide how muc:i impact a bad family life

has.” JA 426.

Applying Boyde, there is no reasonable likelihood

the jurors applied the instructions in this case to

prevent the consideration of any relevant mitigating

evidence either Carr presented, or to prevent the jurors

from giving whatever individual effect they chose to

such evidence. Certainly, no reasonable juror would

have understood these instructions to prevent

consideration of mitigating circumstance unless such

factors were proven beyond a reasonable doubt.

Ultimately, there is no basis in this Court’s

precedent, in logic, or in the record for the Kansas

Supreme Court’s Eighth Amendment rulings.

62

CONCLUSION

Kansas requests that the Court reverse the Kansas

Supreme Court on both questions presented.

June 2015

Respectfully submitted,

DEREK SCHMIDT

Attorney General of Kansas

JEFFREY A. CHANAY

Chief Deputy Attorney General

STEPHEN R. MCALLISTER

Solicitor General of Kansas

(Counsel of Record)

KRISTAFER R. AILSLIEGER

Deputy Solicitor General

NATALIE CHALMERS

Assistant Solicitor General

DAVID LOWDEN

Chief Assistant District Attorney

18 Kansas Judicial District

120 S.W. 10th Ave., 2nd Floor

Topeka, KS 66612

(785) 296-2215

steve. mcallister@trqlaw.com

Counsel for Petitioner