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Kansas Supreme Court Selected Opinion Summaries
State v. Kleypas, Docket 80,920
December 28, 2001

Summaries and press releases are prepared by Ron Keefover, Office of Judicial Administration, Kansas Judicial Center, 301 West 10th, Topeka, KS 66612-1507 (785-296-2256), e-mail: keefoverr@kscourts.org.

RE: Appeal No. 80,920: State v. Kleypas

The Kansas Supreme Court today has affirmed the capital murder conviction of Gary Kleypas, but the court vacated his death sentence and remanded the case for resentencing before a newly empaneled jury.

The court's decision to vacate the death sentence was based upon 1) a faulty jury verdict form and 2) that Kansas statute K.S.A. 21-4624(e) is unconstitutional as applied.

The high court held unanimously that the jury verdict form in the Kleypas case was faulty. The court further held in a 4-3 decision that K.S.A. 21-4624(e) violates the federal constitution because it mandates a death sentence when the aggravating and mitigating circumstances are found to be in equal balance.

Below is a summary of the Supreme Court's decision. A copy of it is being posted on the court website, www.kscourts.org at this time. The summary is being released by the Office of Judicial Administration and should not be construed as a statement by the court or elaboration of the opinion on which it is based.

Due to the length of this decision, additional full text copies of it will have to be purchased through the Office of the Clerk of the Supreme Court pursuant to the Kansas Open Records Act. Forms for making this request are available in the clerk's office.

Summary of State v. Kleypas: Appeal Number 80,920

The Supreme Court today affirmed the capital murder conviction of Gary W. Kleypas in the 1996 death of Carrie Williams, Pittsburg, but vacated his death sentence and remanded the case for resentencing before a newly impaneled jury, which could reinstate it.

Today's exhaustive 338-page decision is the first review and analysis of the state's death penalty law by the Kansas Supreme Court since it was re-enacted in 1994. Kleypas was convicted of capital murder, attempted rape, and aggravated burglary in the brutal death of Williams, which occurred in her Pittsburg apartment during the early morning hours of March 30, 1996. He was sentenced to death on March 11, 1998, following a two-part trial that was conducted between July 8 and August 5, 1997.

The Supreme Court in today's decision unanimously affirmed Kleypas' conviction and set aside his death sentence because of the faulty jury verdict form. The court split 4-3 on a second challenge to the death penalty, based on the manner in which jurors were told to weigh aggravating and mitigating circumstances in arriving at the penalty. Dissenting from vacating the sentence on the basis of the so-called "weighing equation" (but agreeing to reverse the sentence on the basis of a faulty verdict form) were Chief Justice Kay McFarland and Justices Bob Abbott and Robert E. Davis. Comprising the majority on that issue were Justices Tyler C. Lockett, Donald L. Allegrucci, Fred N. Six, and Edward Larson.

Today's decision upholds the constitutionality of the death penalty statute, but the four-member majority ruled that the law prescribing how a jury is to weigh aggravating and mitigating circumstances in arriving at its sentence violated the Eighth Amendment as applied in the Kleypas case. Under Kansas law, the jury may consider evidence which supports certain statutorily defined aggravating factors. The jury must then decide which aggravating factors have been proven by the state. In Kleypas' case, the jury concluded that three aggravating circumstances existed:

  1. Kleypas was previously convicted of a felony in which he inflicted great bodily harm, disfigurement, dismemberment or death on another;
  2. Kleypas committed the crime to avoid or prevent a lawful arrest or prosecution; and
  3. Kleypas committed the crime in an especially heinous, atrocious or cruel manner.

The court held that under the death penalty statute the jury had to balance the aggravating circumstances found to exist against any mitigating circumstances. The weighing test is not based on a mere comparison of the number of aggravators and mitigators, but involves a qualitative as well as quantitative assessment by the jury, and requires that the jury return a sentence of death if the aggravating circumstances outweigh any mitigating circumstances found to exist.

The majority held it was improper for the jury to be instructed, as K. S. A. 21-4624(3) requires, that if aggravating circumstances were found but "not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced to death." This has the effect of requiring the death penalty even when the aggravating and mitigating circumstances are found by the jury to be in equal balance. The majority stated: "Here the weighing equation not only limits the jury's consideration, it mandates death if the aggravating and mitigating circumstance are equal. As such, it denies what the Eighth Amendment requires: that the jury is to give effect to the mitigating circumstances that it finds exist." Thus, the majority held, the so-called Kansas "weighing equation"­which in essence allows a "tie" to go to the state­violates the federal constitutional prohibitions against cruel and unusual punishment and the guarantee of due process. The court's majority ruled that "fundamental fairness" requires that a "tie" goes to the defendant when life or death is at issue.

The majority opinion noted that the Kansas Attorney General had, without success, in 1995 recommended to the Kansas Legislature that the death penalty statute be amended to require that aggravating circumstances outweigh mitigating circumstances so that if circumstances are equal "tie goes to the defense."

Today's Supreme Court decision does not invalidate the Kansas death penalty statute, but holds that the weighing equation, as applied, is unconstitutional: "Our decision does not require that we invalidate K. S. A. 21-4624 or the death penalty itself. We do not find K. S. A. 21-4624(e) to be unconstitutional on its face, but rather, we find that the weighing equation impermissibly mandates the death penalty when the jury finds that the mitigating and aggravating circumstances are in equipoise."

In reaching the decision, the court reasoned that the Kansas legislature intended to enact a constitutional death penalty scheme and thus concluded that K.S.A. 21-4624(e) is not void on its face, but only in its application. The majority held that by requiring the "tie" to go to the defendant, the intent of the legislature may be carried out in a constitutional manner: "By simply invalidating the weighing equation and construing K. S. A. 21-4624(e) to provide that if the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K. S. A. 21-4625 exists and, further, that such aggravating circumstance or circumstances outweigh any mitigating circumstance found to exist, the defendant shall be sentenced to death, the intent of the legislature is carried out in a constitutional manner. So construed, we hold that K. S. A. 21-4624 does not violate the Eighth Amendment prohibition against cruel and unusual punishment," the court concluded.

Kleypas now may be re-sentenced by a newly impaneled jury that is instructed that a defendant must be sentenced to death if the aggravating circumstances found to exist outweigh the mitigating circumstances, as opposed to an instruction that the death penalty may be imposed if the mitigating circumstances do not outweigh the aggravating circumstances.

The three dissenters to overturning Kleypas' death sentence based on the weighing equation were led by Justice Davis. They would have upheld the constitutionality of the Kansas weighing equation and affirmed Kleypas' death sentence if a proper jury verdict form would have been used. Justice Davis concluded that the majority, "in rewriting the language of the weighing equation, ignored the clear intent of the statute and invaded the province of the legislature."

"More importantly," Justice Davis wrote, "the weighing equation was constitutional as written." He said in his dissent, which was joined by Chief Justice McFarland and Justice Abbott, that the United States Supreme Court has held that as long as the weighing equation does not preclude the jury from considering relevant mitigating evidence, the specific method of balancing the aggravating and mitigating factors may be left up to the states.

Justice Davis also criticized the majority's reliance on out-of-state cases to arrive at its conclusion. Justice Abbott, writing in a separate dissent, followed much of the same reasoning, concluding that the visceral appeal of the "tie" going to the defendant is not required by the cruel and unusual punishment prohibitions of the Eighth Amendment.

The court was unanimous in its agreement that another reason existed to vacate Kleypas' death sentence based on a faulty verdict form, which the Court characterized as "seriously deficient." According to the death penalty statute, the jury is faced with two options: 1) unanimous agreement that the defendant must be sentenced to death; or 2) absent such unanimous agreement, the defendant will not be sentenced to death.

In Kleypas' case, the trial court properly instructed the jury as to its two options. And, the trial court provided a proper verdict form reflecting the first option­a unanimous decision for death. However, the verdict form meant to reflect the second option improperly characterized it as requiring a unanimous decision against death, the court ruled. The wording of the second verdict form made it appear that the jury, in order to spare Kleypas' life, was required to be unanimous in its decision against death, the court said.

The Supreme Court held that the second verdict form was confusing, misleading, and inconsistent with Kansas law. The court concluded the second verdict form prejudiced Kleypas' right to a fair trial, and absent the problem with the weighing equation, would have been grounds on its own to vacate the death sentence and remand for resentencing.

The court provided substitute language for the second verdict form to be used in all death penalty cases in Kansas. The revised verdict form, consistent with Kansas law, makes it clear that a single juror may block a death verdict, the court ruled.

The court also was unanimous in its rejection of other challenges to the sentencing phase of Kleypas' trial. The court held that the trial court did not err in admitting evidence of the circumstances surrounding Kleypas' prior conviction for the 1977 murder of a Missouri woman, nor did it err in refusing to allow Kleypas to present evidence of the hardships he might endure in prison.

The court held that the trial court's instruction defining mitigating circumstances was proper; the trial court's instructions did not require that jurors unanimously agree on mitigating circumstances; and the trial court did not err in failing to provide an instruction pointing out the inconsistency between the "avoid arrest" aggravator and the "heinous, atrocious or cruel" aggravator because none exists. The court concluded that the state's failure to timely move for a separate sentencing hearing did not prejudice Kleypas, and the trial court did not err in failing to provide the jury information on the possible length of Kleypas' prison sentence should his life be spared.

The court analyzed at length Kleypas' claims of prosecutorial misconduct, but declined to reverse the penalty phase because of them. The court concluded that while none of the instances of prosecutorial misconduct taken in isolation may have been so prejudicial to Kleypas as to require reversal of his sentence, the net cumulative effect of the prosecutorial misconduct might have provided an additional basis for reversal. The court did not vacate Kleypas' sentence on this basis, however, but provided comments on prosecutorial misconduct for the benefit of future trials.

Also in today's ruling, the court unanimously rejected the defendant's multiple claims of error that related specifically to the guilt phase of the case. The issues the court found to be without merit in the guilt phase of the trial included his claim that he was unable to present a complete defense regarding "confabulation,"which defense expert witnesses testified is where one who has little or no memory of events occurring because of a blackout will gather information from outside sources to fill in the gaps in memory.

Other issues relating to the guilt phase of the Kleypas trial included the admissibility of Kleypas' confession, the validity of a search warrant, the validity of his arrest warrant, the trial court's failure to suppress DNA evidence, jury instructions on felony murder, attempted rape, simple battery, voluntary intoxication, and the state's failure to timely notify the defendant of a change of testimony.

The defense also raised the issues of whether Kansas law makes a killing occurring during an attempted rape subject to the death penalty, alleged prosecutorial misconduct in the guilt phase, alleged jury misconduct, sufficiency of the notice to seek the death penalty, failure to provide a pretrial ruling on whether sufficient evidence existed to support aggravating factors, and competency to stand trial.

He also unsuccessfully raised the issues of the removal of a juror for cause in light of the requirements of the U.S. Constitution, the removal of five jurors for cause in light of the Kansas Constitution, the denial of a separate sentencing jury, alleged judicial misconduct during jury orientation, an alleged improper use of a peremptory strike of a juror, and cumulative error in the guilt phase.