Kansas Supreme Court Selected Opinion Summary
State v. Gavin D. Scott, Appeal No. 83,801
May 16, 2008

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. 83,801: State v. Gavin D. Scott

The Supreme Court today ordered re-sentencing of Gavin D. Scott, Wichita, for the capital murder of a Wichita couple arising from a 1996 home invasion in rural Sedgwick County.

The Court unanimously affirmed the defendant's convictions of capital murder, aggravated burglary, and criminal possession of a firearm, but reversed his conviction of premeditated murder because it is multiplicitous with the capital murder. The Court also upheld the constitutionality of the weighing equation in the Kansas Death Penalty Act that provides if the existence of aggravating circumstances is not outweighed by any mitigating circumstances the defendant shall be sentenced to death.

Co-defendant Jason Wakefield was not given the death penalty, but remains under two consecutive hard-40 prison sentences in the case. Scott was tried for premeditated murder in the death of Douglas Brittain and capital murder for the deaths of Elizabeth Brittain and Douglas Brittain as part of the same act or transaction. The Court concluded that proof of Douglas Brittain's murder was required to convict Scott of capital murder of Elizabeth Brittain and Douglas Brittain as part of the same act or transaction, thus, making the first-degree murder count multiplicitous.

In today's decision, the Court said the State "has acknowledged the murder of Douglas Brittain was a crime necessarily proved under the charge of capital murder. Accordingly, Scott's convictions were multiplicitous in the absence of clear and unambiguous legislative intent authorizing multiple prosecutions for the same conduct."

"Here, there has been no such declared legislative intent. Accordingly, we conclude Scott's conviction for the first-degree premeditated murder of Douglas Brittain must be reversed."

The Court vacated the defendant's death sentence on the basis of error in the jury instructions given in the penalty phase of the trial. On remand, a jury will be impaneled to determine whether the death penalty should be re-imposed in the case. Other convictions and resulting sentences were affirmed in today's high court decision.

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