Archive for the ‘Murder’ Category

Decision: State v. Trussell

August 26, 2009

August 21. The Kansas Supreme Court has issued its opinion in State v. Trussell (No. 99,411) a murder-conspiracy case that reads like something from a TV show. In a unanimous decision, written by Justice Lee Johnson, the Court affirmed Jerry Trussell’s convictions arising out of the 1997 murder of his friend and host “Punkie” Harrod.

Jerry Trussell and his wife Tammy became friends with the Harrods (Punkie and Kelly) in the 1990s. At one point Tammy left Punkie, claiming he was abusive, though a court awarded him temporary custody of their kids. She later moved back in with him after discovering she was pregnant and the divorce was abandoned. In 1997, after some conversations between the women, Kelly started having sex with Jerry in return for his agreeing to “get rid of” her husband. Later, Jerry and Tammy were evicted from their home and moved in with the Harrods. In 1997 the Jerry, Kelly and Tammy organized a scene in which Punkie and Jerry fought and Kelly shot him in the head. His body was buried in a shallow grave.

Suspicions were aroused and police interviewed the protagonists several times without success. In 2001, Tammy began telling the police different versions of the story and in 2004 she led police to the location of the grave though no body was recovered. In 2005 Jerry Trussell was tried for 1st degree murder and conspiracy but the jury failed to reach a verdict. At a subsequent trial in 2007, Jerry was convicted. Between the first trial and the second trial the District Court reversed itself over whether to admit some un-Mirandized statements given by Jerry to police in 2001, resulting in the admission of the statements.

On appeal Trussell raised several issues, which the Court dismissed quickly.

Trussell argued that the State had not presented sufficient evidence that he had intent to have Punkie killed, but the Court rejected this noting that intent can be formed quickly and the evidence before the jury was that Trussell had had ample time to form intent since the killing was planned ahead of time.

Trussell argued that a self-defense instruction should have been given to the jury even though he had not asked for one, and indeed his theory of defense had been that he was being set up as the fall guy by Tammy and Kelly. The Court held that District Courts have no obligation to proactively instruct on every possible theory of defense, especially ones which might conflict with the defendant’s own theory.

Trussell argued that his 2001 statements ought to have remained suppressed. The Kansas Supreme Court disagreed and upheld the District Court’s reasoning on the matter. Since the statements were given voluntarily and Trussell was able to leave of his own volition at any point, the Court held that this was a non-custodial interrogation and that therefore Miranda did not apply.

Trussell objected that the Prosecutor had often used leading questions and that the District Court allowed this. In fact whenever the Defense objected to the leading questions the Court had them rephrased or dropped. However, the transcript indicated that there were unobjected-to leading questions also. The Court held that it had no jurisdiction to rule on these since the Defense had not objected at trial. The Court indicated that Prosecutorial Misconduct might have been a better argument for Trussell to have made, but he hadn’t so the matter was not considered.

Trussell objected to the Trial Court’s decision to rule one witness as a hostile witness (thus able to be asked leading questions). The Kansas Supreme Court held that the Trial Court was in the right position to make that call and that the transcript showed it had considered the matter before making its ruling and therefore upheld it.

Trussell’s life sentence (without parole for 25 years) for murder and subsequent 12 year sentence for conspiracy was affirmed.


Decision: State v. Ransom

August 12, 2009

July 24th. The Kansas Supreme Court has issued its decision in State v. Ransom (No. 99,794), the third case arising from a Wichita Gang Scene murder spree. Previous coverage of the prosecutions which arose from this crime has been covered here and here. In a unanimous opinion, written by Justice Carol Beier, the Court rejected Karlan Ransom’s attempt to get a new trial based on the exclusion of evidence arising from a search his girlfriend consented to.

After the killings detailed in the previous coverage, police received a tip that they should check the house of Sharondi Washington (Ransom’s girlfriend), where Ransom stayed 6 nights per week. A large number of police officers descended on the house. Initially, Washington would not let them in but after coming out and speaking to them in a police car, Washington consented to the search. It should be noted that Washington subsequently claimed that she did not agree to the search (which was one of Ransom’s claims on appeal). The Court rejected this argument based on the District Judge’s determination after weighing the evidence that the police account was more convincing.

Once the police gained entry they encountered Ransom and others in the house, searched it and located evidence which was subsequently presented at trial. Ransom contends that since he had not given permission for the search it should have been suppressed. The Court rejected this argument, noting that in the United States Supreme Court’s 2006 Georgia v. Randolph ruling on this topic the defendant had objected to a search and the police had then gone to the man’s wife for permission. The Court held that while that sort of action (seeking out an occupant willing to consent to a search), was not permissible if someone had already objected to a search, it did not impose a duty on police to ascertain the permission of all members of a household who might object.

Ransom also lost on two other claims he brought – that certain evidence that was not connected to the ultimate charge was prejudicial and that a certain member of the Jury should have been stricken by the Judge and not by use of Ransom’s peremptory challenge. The former of these represented a change of argument by Ransom who at trial had argued that the evidence stemmed from the search he had unsuccessfully argued was illegal. The Court held that he procedurally defaulted on this point, but nonetheless rejected his argument on the merits finding the evidence was not unduly prejudicial. On the matter of the juror, there were some statements during voir dire about the juror’s difficulty in presuming Ransom’s innocence. The Judge was satisfied by the statements that when presented with Jury Instructions the juror would behave appropriately. Ransom used a peremptory strike but on appeal argued that the fact the Judge did not remove the juror may have passed misinformation to the other members of the jury about the way they should determine their verdict. The Kansas Supreme Court rejected this argument, noting that a District Judge is in a better position to decide which jurors ought to be removed and also noting that two other jurors were struck for similar (but more clear-cut) statements. This would have dispelled any misunderstanding on the part of the other jury members about the way to perform their job.

Decision: State v. Richmond

August 10, 2009

July 24th. The Kansas Supreme Court has issued its decision in State v. Richmond (No. 100,074) a criminal appeal. In a unanimous opinion by Justice Lawton Nuss, the Court rejected Albert Richmond’s various claims to have his conviction for first-degree murder and 50 year (without parole) sentence vacated. Note: District Judge David King served on the Court for this case following the retirement of former Chief Justice Kay McFarland.

Albert Richmond, a drug dealer in Pittsburg, shot and killed Tyrone Owens (also a drug dealer in Pittsburg) in October 2006. The State believed that Richmond did so to discourage snitching, following an incident where a house he was in was raided for drugs. Richmond was accompanied by various henchmen who assisted in various parts of the crime, all of whom cut plea deals with the State. A jury convicted Richmond and he was sentenced to a life sentence without the possibility of parole for fifty years.

Richmond made several claims in his appeal:

That the Court erred by allowing a statement by Richmond to a police officer from several years before that in his own words he “robbed and killed people” into evidence. Rejected. The Court held that this statement (which stemmed from a 1995 Kansas City murder investigation) spoke to Richmond’s mental state and self-image and consequently could be admitted. Prosecutors had been warned to approach this very carefully, since Richmond’s prior convictions from that case were inadmissible.

That the Court erred by ruling that the State could introduce evidence about the 1995 convictions if Richmond introduced his own testimony which related to it. [Richmond chose not to testify]. Rejected. Richmond argued that by ruling this way he was prevented from introducing his own theory of defense but the Court held that having successfully blocked the 1995 matter from being referred to, Richmond could not have referred to those events without the State being able to fill in its side of the story.

That the Court erred by allowing into evidence proof of Richmond’s heavy involvement in drug culture, including prior convictions for drug related crimes. Rejected. The Court held that the evidence was probative and not unduly prejudicial since it showed that Richmond would have been aware of how much cash a dealer like his victim was likely to carry.

That the Prosecutor committed misconduct. Rejected. Richmond raised many claims of prosecutorial misconduct, all but one of which were rejected out of hand. The one which was not concerned the prosecutor repeatedly asking leading questions of a witness, after objections and being warned by the Judge about each instance. The Court held that this could have been reviewed for prosecutorial misconduct, but did not do so because it held that even if it found misconduct the error was harmless since there was little if any likelihood of these incidents altering the result of the trial.

That Cumulative Errors denied him a fair trial. Rejected, since a sole harmless error cannot lead to cumulative error.

Apprendi. Rejected. Richmond made a doomed, pro-forma Apprendi challenge [presumably to preserve the issue for a futile Federal review] which the Court rejected based on its past jurisprudence, upholding the Kansas Sentencing Guidelines.

Richmond therefore remains in prison.

Decision: State v. Houston

July 21, 2009

July 17th. The Kansas Supreme Court has issued its opinion in State v. Houston (No. 98,373), an appeal of a murder conviction. In a unanimous opinion, written by Justice Lawton Nuss, the Court upheld Michael Houston Sr’s conviction for the second-degree murder of Joshua Johnson.

The Houston and Johnson families who lived in KCK became involved in a long running feud following Houston’s having a sexual relationship with Johnson’s girlfriend. Over time many incidents took place between the two men, and Johnson attacked members of Houston’s family. One day, in 2003, Houston was driving his car and had to swerve out of the way of Johnson’s car door as it opened. The pair had nearly come to blows earlier that day, and Houston jumped out of his vehicle armed with a 12ga shotgun. Johnson was exiting his vehicle. Houston shot him dead. At trial (though not in his initial police statement) Houston maintained that Johnson had been reaching for what he believed to be a weapon and that he had shot him in self defense. Houston was convicted of second-degree intentional murder.

On appeal, Houston raised a number of issues. On most of these, the Kansas Supreme Court adopts the ruling in the case of the Court of Appeals, namely that:

  • Houston was not prevented from presenting his theory of self-defense by the exclusion of evidence about Johnson attacking his family members, since evidence of his having done that was introduced anyway by various witnesses and those facts did not speak to Houston’s state of mind when he shot Johnson. In contrast, Houston had been able to enter evidence about Johnson’s previously threatening him.
  • The Prosecutor did not commit misconduct during a chain of questions during which Houston mentioned he had been evaluated on his mental condition at Larned State Hospital.
  • Houston had sought to suppress evidence that Johnson knew Houston had a gun. His pre-trial motion was rejected. The Court held that the issue was not properly preserved for appeal since no objection was made at the time the evidence was actually introduced, which is required.
  • Houston’s Apprendi claim was rejected.

In addition to the above the Kansas Supreme Court also rejected Houston’s assertion that the jury should have been presented with the option of convicting him of the lesser-included offense of Involuntary Manslaughter. Houston’s theory for this was that he had acted lawfully in self defense but used excessive force, and had therefore not intended to kill Johnson. In its ruling, the Kansas Supreme Court adopted a different tack to the Court of Appeals finding that under the circumstances no rational jury could have convicted him of involuntary manslaughter since there was no possibility that in firing his gun at close quarters he had not formed an intent to kill Johnson. In making this ruling, the Kansas Supreme Court also made it clear that loose wording in some recent opinions did not reflect any move away from the standard that a lesser included instruction is not needed when a jury could not reasonably convict a defendant of the crime. That standard was reaffirmed in this case.

Decision: State v. Sharp

June 26, 2009

June 19th. The Kansas Supreme Court has issued its decision in State v. Sharp (No. 98,389). In a 6-1 decision, written by Justice Lawton Nuss, the Court rejected Kimberly Sharp’s contention that her confession to assisting in the murder of David Owen was coerced. Consequently her felony murder and kidnapping convictions were affirmed. Justice Lee Johnson dissented, arguing that certain statements of of the interviewing officer rose to the level at which a reward was implied in return for them, thus rendering the statement coerced.

The background to this case is the murder of David Owen in Topeka in 2006. The circumstances in that case are described in the write-up of State v. Baker (No. 98, 498). Baker and a man named Charles Hollingsworth hanged Owen. Sharp was tried for felony murder and kidnapping because she had assisted in detaining Owen and had provided the rope with which he was later murdered. In addition, she had burned some of his belongings afterwards.

The core of her appeal revolved around the fact that during a police interview the interviewing officer had said, when asked if Sharp was going to jail:

“No, no, no, no, no, no, no, no. You are [only] a witness to this thing as long as you do not do something dumb and jam yourself.”

and later,

“Just don’t tell me no if I ask you something.”

Sharp argued that this constituted a promise not to prosecute her for the murder and that she was then convicted because of evidence she gave up after these statements were made, which implicated her in providing the rope, telling her associates not to murder Owen “here” (as opposed to not at all) as well as her involvement in covering up the crime.

In addition, Sharp has two young children. When it emerged that the children were in another homeless camp, the detectives pressed Sharp for more information, promising to reunite her with them (which they did). Sharp argued that the statements she made at this point were therefore made in order to get to see her children.

The Kansas Supreme Court rejected both arguments. It found that the motivation of the officers surrounding the children was to speedily rescue them from where they were left (in the presence of a convicted sex offender no less) and that this was not an attempt t coerce information out of Sharp. It also found that the statements during the interview were not prejudicial – the police admitted that at the time they did not expect Sharp to be charged with murder. However, promises of immunity (even if these statements rose to that level, which the court found they did not), are not absolute. The Court noted that immunity has been rescinded in circumstances where it is discovered that the person offered immunity for testimony turns out to be the actual killer. Since Sharp’s statements directly implicated her in Felony Murder (and she had been Mirandized and had waived counsel) her convictions were sound. The Court examined the context of the second remark and found it to be a caution not to lie, rather than a demand that Sharp assent to whatever the police officer suggested.

Justice Johnson dissented. He would have found the statements prejudicial. He argued that the first statement of the detective constituted a promise which in conjunction with the admonition not to say ‘no’ deprived the statement of its nature as a product of Sharp’s free and independent will. He was also concerned with the matter of locating Sharp’s children. He argued that given a parent’s natural concern for their children the statements of police surrounding this issue would have been coersive or inducive upon Sharp’s testimony.

Decision: State v. Dixon

June 25, 2009

June 19th. The Kansas Supreme Court has issued its decision in State v. Dixon (No. 97,020). In a unanimous opinion, written by Justice Carol Beier, the Court affirmed Wallace Dixon’s felony murder conviction for the deaths of Dana Hudson and her 19-month old son Gabriel in a fire caused by Dixon’s ransacking of an Emporia apartment. Note: Justices Davis (now Chief Justice), Luckert and Nuss did not take part in the case. Their places were taken by Judges Richard Greene, Stephen Hill and Steve Leben.

In 2001, after quarelling with Dixon, Dixon’s girlfriend moved into an apartment. Dixon later (on a day he knew the apartment to be empty) broke in and removed several items of property. He later returned (both times with accomplices) and vandalized the apartment, in the process knocking a gas stove. Subsequently there was an explosion in the building and Dana and Gabriel Hudson who lived in another apartment were killed by fire and smoke inhalation since they could not escape. Dixon was convicted. The Kansas Supreme Court in a 6-1 decision vacated the conviction due to errors at the trial and Dixon was tried again. Again he was convicted, and brought this appeal against his convictions.

Dixon made many arguments, all of which were rejected by the Court, specifically:

  • Dixon wanted a mistrial because a prosecution expert witness changed his testimony since the first trial and the defense was not informed – Rejected, as the changes in testimony were to the details and did not alter the position of the ATF which was that the stove was damaged in the robbery and that this caused the fire.
  • Dixon wanted a mistrial because a juror saw Dixon in shackles in the hallway – Rejected, as he was not in Court in visible shackles (which the United States Supreme Court has held violates Due Process) and the trial judge cautioned the jury against inferring anything from the incident.
  • Dixon wanted instructions on lesser included offenses of manslaughter – Rejected because Kansas Law has different rules for lesser included offenses of Felony Murder and these instructions cannot just be requested by the defense.
  • Dixon argued that the judge should have instructed the jury that they all had to agree upon which predicate felony he had committed in order to support the Felony Murder conviction – Rejected, as this was not required in an alternative means case. The jury needed only to unanimously find that a particular felony was committed leading to the murder conviction, rather they each had to find that he had committed a felony, thus making the deaths felony murder.
  • Dixon argued that the jury instructions misstated the law – Rejected, as they did not.
  • Dixon argued that evidence that his mother had sought to pay off victims of the burglary in order for them not to go to the police should not have been admitted – Rejected as this evidence was well within the discretion of the Trial Judge to allow as probative and that it was not *unduly* (emphasis in the original opinion) prejudicial.
  • Cumulative error – Rejected, as there were no errors, so there was no cumulative error.

Dixon’s convictions for two counts of Felony Murder were therefore affirmed.

Decision: State v. Garcia

May 26, 2009

May 22nd. The Kansas Supreme Court has issued its opinion in the case of State v. Garcia (No. 99,997) a sentencing appeal. In a unanimous decision, written by Justice Lawton Nuss, the Court affirmed Ray Garcia’s felony-murder sentence and the District Court’s finding that the crime was sexually motivated (thus placing him on the Sex Offenders Register).

In 1995 Garcia raped a 73 year old Wichita woman. The crime went unsolved for years. In 2001 the Kansas Legislature extended the Statute of Limitations for rape (which had previously been 5 years). Subsequently a “cold case” investigation identified Garcia as the culprit and he was tried and convicted of rape and felony murder. Garcia appealed and in 2007 the Kansas Supreme Court vacated his conviction for rape as violating the Ex Post Facto clause of the United States Constitution. [Since the Legislature extended the Statute of Limitations after it had expired in Garcia’s case]. The Court remanded the case to District Court for re-sentencing. At re-sentencing the District Court noted in response to questions by the Prosecutor that Garcia remained a Sex Offender since the felony-murder was found to be sexually motivated.

Garcia appealed this, arguing that this was a new finding on remand and that since the felony-murder conviction was untouched by the Kansas Supreme Court’s decision, it could not be reopened for further findings. Garcia sought to have the ‘sexually motivated’ component of that sentence (and thus the Sex Offenders register requirement) removed.

The Court rejected this argument. In examining the transcript of the original sentencing and the journal it found that the trial court had made the finding at the original trial that the felony-murder was sexually motivated. (Which stands to reason, since without the Statute of Limitations issue, Garcia would still have a rape conviction). It also informed him at the time of Sex Offender registration being required as a result of the felony-murder conviction. Therefore, on remand, the District Court was not reopening the felony-murder sentence, and thus it stands as before. Garcia did not object at the time or during his original appeal to this finding and therefore cannot raise a challenge now over the finding that the felony-murder was sexually motivated.

Garcia will be eligible for parole in 2020.

Decision: State v. Ransom

May 17, 2009

May 15th. The Kansas Supreme Court has issued its opinion in State v. Ransom (No. 99,281) a felony-murder appeal. In a unanimous opinion, written by Justice Carol Beier, the Court upheld Kendrall Ransom’s conviction for the felony-murder of Spain Bey. Note: As a result of former Chief Justice Kay McFarland’s retirement, Judge Melissa Standridge of the Court of Appeals was appointed to hear the case.

Kendrall Ransom was an 18 year old gang member (though jurors were not told that) in March of 2006 when he and a group of friends and associates took part in a pair of poorly planned drug house robberies in Wichita. They first attempted to rob one Donta McDonald, who Ransom shot and killed. In this case Ransom is not appealing that crime (which was covered here [the felony-murder conviction of one of his accomplices]) but the conviction arising out of that evening’s second robbery. Having come away from the McDonald killing with no drugs or money Ransom and some others raided a house on North Lorraine. Ransom knocked on the door holding a shotgun and said he was there to buy drugs. The occupants saw the gun and slammed the door and everyone involved ran away at some point – except for one Spain Bey who was found in the house shot to death.

Later that night Ransom and the others were pleased by the evening news which they watched at an associate’s house which showed the police were looking for a different type of vehicle to the one they had been driving. They were less pleased a couple of days later when an anonymous tip led police to that house, several guns and ultimately the various participants in the crimes. Ransom was charged with Felony Murder for the death of Bey. [At trial a forensics expert testified that the weapons recovered were not used to kill Bey – who exactly shot Bey remains a mystery, but is of course not necessarily relevant for a Felony Murder conviction]. A jury convicted him.

This case is Ransom’s direct appeal and as a result he made a series of claims for why his conviction should be reversed. The opinion almost devotes more time to describing the procedural background than to dismissing each of the issues which Ransom raised. None of them appears to have stood much chance of success.

  • The Court held that interruptions in Ransom’s interview schedule and an (unsupported) claim that he had been drinking and taking Ecstasy did not require that he be re-Mirandized. His confession to participating in the crimes was therefore admissible.
  • The Court held that testimony about the way Ransom and the others celebrated the news report about the type of car that was being looked for by police was neither a violation of the Sixth Amendment right to confront, nor inadmissible hearsay.
  • The Court rejected an argument that the jury should have received an instruction which would have required to find some causational link between Ransom’s actions and Bey’s death over and above the death being as a result of the attempted robbery.
  • The Court rejected an argument that Ransom should have received a mistrial because one of the police officers referred to “gang officers” in testimony when the trial judge had barred admission of evidence concerning Ransom’s gang ties.
  • The Court rejected an argument that the State should not have been able to alter the charge after both sides had presented their evidence. [It should be noted that the change in the charge was to include an additional component of the same subsection of the Felony Murder statute, namely to include the flight from the scene as something linked to Bey’s death, and the trial had already covered evidence about the events in the amended charge].
  • The Court rejected an argument that the evidence of Felony Murder was insufficient, since a rational fact-finder could have found Ransom guilty based on the evidence presented.

Therefore, Ransom’s conviction was affirmed.

Decision: State v. Pennington

April 24, 2009

April 17th. The Kansas Supreme Court has issued its opinion in State v. Pennington (No. 100,261) a motion to correct an illegal sentence. In a unanimous decision, written by Justice Nuss, the Court rejected Reginald Pennington’s claim that his life sentence for second-degree murder was an illegal sentence. Note: Former Chief Justice Kay McFarland was still a member of the Court at the time this case was argued but took no part in the decision. Her place was taken by Court of Appeals Judge Christel Marquardt.

In 1997 Pennington was charged with second-degree murder over the strangulation death of Caresa Akins in Wyandotte County. He was arraigned for the lesser included offense of voluntary manslaughter. Prior to trial, the State filed an amended information, again charging Pennington with second-degree murder and the District Court filed a memorandum opinion concluding that there was sufficient probable cause to support charging him. Pennington was convicted by a jury and sentenced to life imprisonment with parole eligibility after 10 years. Pennington’s direct appeal was rejected by the Kansas Supreme Court in 2000.

Pennington filed this case to correct an illegal sentence, arguing that there were defects in his trial including prosecutorial misconduct in his being charged with second-degree murder twice, without the first charge being dismissed. He argued that he was not properly charged with second-degree murder and therefore could not have been convicted of it. The District Court summarily rejected Pennington’s claim without holding a hearing, leading to this appeal.

Pennington argued two things. Firstly that he should have been granted a hearing on his claim, secondly that he should prevail on it. The Kansas Supreme Court rejected both positions in a brief opinion. It first notes that the right to a hearing in illegal sentence correction motions is not automatic. The person claiming that their sentence is illegal must show that there is some chance of success. Here the District Court correctly determined that there was none. Kansas Law allows prosecutors some flexibility in amending information pretrial and does not require a new arraignment for each amended filing. The procedures surrounding preliminary proceedings are statutory. For Pennington to have been able to get anywhere with his case he would have had to object at trial to the lack of a new preliminary hearing and failure to dismiss the original charge. Since he did not, his right to appeal against them was deemed as waived.

Decision: State v. Martinez

April 7, 2009

March 27th. The Kansas Supreme Court has issued its opinion in the case of State v. Martinez (No. 99,641), an appeal of a murder conviction from Wyandotte County. In a unanimous opinion, written by Justice Rosen, the court upheld Gabriel Martinez’s murder conviction for the drive-by shooting death of Jose David Contreras in 2006. Martinez is serving a life sentence without the possibility of parole for 50 years.

The Contreras family had been attending a dance in Kansas City, Kansas when they spotted a group of men, including Martinez, who Anthony Contreras had had trouble. After this, the Contreras family, including two brothers, Jose David and Nasser, left in their SUV. Martinez’ group of men followed and were spotted retrieving something from the trunk of their car. A few blocks away, when the SUV was parked in a McDonalds, the car Martinez was in opened fire, injuring Nasser and killing Jose David. Police later apprehended Martinez who confessed to having fired shots at the SUV from a 9mm which he had disposed of by tossing it over a bridge.

During the trial, concerns were expressed to the judge by one of the jurors that a second juror was acting oddly. The first juror was worried that the second juror was not mentally capable of being on the jury. The judge discussed the issue with her, and then ordered the jury to continue deliberations. The next day the judge met with the first juror, the presiding juror, Martinez and his counsel to further discuss the issue. Martinez moved for a mistrial, the judge held that the jury could continue to deliberate. Martinez was convicted of first-degree premeditated murder.

Martinez’ appeal focussed on the issue of the juror who concerns were raised over. He argued that he had been denied his right to a fair trial by the presence of an unsuitable juror who would not try the matter fairly. The Kansas Supreme Court rejected his arguments, holding that the trial judge did the right thing in leaving the juror in place. The concerns raised by the two other jurors never reached the point of showing that the juror was actually incompetent to try the case. Furthermore, the concerns¬† addressed the way in which he was deliberating – matters which may not be questioned. As the court puts it:

“A verdict may not be impeached by questions concerning a juror’s views or conclusions, the reasons for those views, the factors used in determining those conclusions, or what influenced those views or mental processes in reaching the juror’s conclusions.”

The Kansas Supreme Court did howeved find that the trial judge erred in his first communication with the juror who brought the matter to light. Since this conversation took place without the presence of Martinez it violated Martinez’ right to be present throughout the trial. However, based on the strength of the case and fact that there was not anything to the conversation which Martinez’ presence would have affected, the court held that this was a harmless error.

After dispensing with the now obligatory Apprendi sentencing claim, the Court rejected two other arguments from Martinez. Martinez argued that the wording of one of the jury instructions shifted the burden of proof to him. Since he had not objected to the instruction at trial, the Court would have needed to determine the instruction to be clearly erroneous in order to find for him. It did not. Martinez also argued that instructions for a lesser-included offense of second-degree reckless murder should have been given to the jury. Again Martinez had not objected at the time and therefore to find for him the Court would have had to find that there was a real possibility that the jury would have found him guilty of the lesser offense not the greater one. Since the evidence against him was strong, he had confessed and the jury had convicted him of first degree murder (while having the option instead of felony murder) this was certainly not the case.