Preview:

IN THE SUPREME COURT OF THE STATE OF KANSAS No. 99,110 STATE OF KANSAS, Appellee, v. ANDREW RAMEY ELLMAKER, Appellant.

SYLLABUS BY THE COURT 1. Where a trial objection to a jury instruction is different from the argument presented on appeal, a clearly erroneous standard of review applies.

2. An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. To reach this conclusion, an appellate court examines the instructions as a whole, rather than isolates any one instruction, and determines if the instructions properly and fairly state the law as applied to the facts of the case.

3. Under K.S.A. 22-3414(3), a party cannot allege error arising from an instruction that the party requested.

4. An instruction containing a permissive inference does not relieve the State of its burden because the State is still required to convince the jury that an element, such as intent, should be inferred based on the proven facts.

1

5. Instructing the jury that another trial would be a burden on both sides is error.

6. Appellate courts have unlimited review over questions involving the existence of jurisdiction.

7. Appellate jurisdiction is defined by statute; the right to appeal is neither a vested nor constitutional right.

8. While K.S.A. 38-1681 of the Kansas Juvenile Justice Code precludes an appeal of an order waiving juvenile status when the juvenile has consented to the waiver, it does not preclude an appeal if the judge failed to follow the statutory requirements for the waiver.

9. Under K.S.A. 38-1681, if a juvenile consents to an order waiving juvenile status and authorizing prosecution as an adult, an appellate court does not have jurisdiction to consider the issues related to the waiver proceeding or to the judicial determination to waive juvenile jurisdiction even if a district court fails to inform a juvenile of the items listed in K.S.A. 381636(c)(2).

10. The requirement in K.S.A. 22-3201(c) that a complaint, information, or indictment allege facts sufficient to constitute a crime or specific crime subcategory in the crime seriousness scale (the crime severity) does not require the State to allege the aggravating factors that are used as a basis to impose a hard 50 life sentence under K.S.A. 21-4635.

2

11. Kansas' hard 50 sentencing scheme under K.S.A. 21-4635 is not unconstitutional under Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2005); Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); or Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999).

12. Cumulative trial errors, when considered collectively, may be so great as to require reversal of a defendant's convictions. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found under this cumulative effect rule, however, if the evidence is overwhelming against the defendant.

Appeal from Johnson district court; BRENDA M. CAMERON and PETER V. RUDDICK, judges. Opinion filed December 4, 2009. Affirmed.

Carl Folsom, III, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Steven J. Obermeier, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: Andrew Ramey Ellmaker, a juvenile who was certified to stand trial as an adult, appeals his convictions of premeditated first-degree murder and aggravated battery. He also appeals his sentence of life imprisonment without parole for 50 years. He raises several issues that we have taken the liberty to rephrase to reflect the parties' arguments and to reorder for ease of discussion: (1) Did the district court err by giving an instruction regarding the definition of criminal intent as it related to premeditated first-degree murder? (2) Did the district court err by giving an Allen-type instruction to the jury (see Allen v. United States, 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154 [1896])? (3) Where a juvenile stipulates to the evidence regarding a waiver of juvenile jurisdiction, can an appellate court under K.S.A. 38-1681 consider whether 3

the district court erred in authorizing the prosecution of the defendant as an adult without first submitting to a jury the question of whether the facts supported the court's certification decision? (4) Where a juvenile stipulates to the evidence regarding a waiver of juvenile jurisdiction, can an appellate court consider whether the district court erred in certifying the defendant for prosecution as an adult without complying with K.S.A. 38-1636(c)(2), the statute in effect at the time of the offenses and certification? (5) Were the defendant's due process rights violated because the criminal complaint did not specify the underlying aggravating factors supporting a hard 50 life sentence? (6) Is Kansas' hard 50 sentencing scheme unconstitutional? and (7) Did cumulative errors deprive the defendant of a fair trial?

We reject most of Ellmaker's arguments, finding merit only in his contention that the Allen-type instruction was erroneous. That error, however, was not reversible, and we therefore affirm Ellmaker's convictions and his hard 50 life sentence.

FACTUAL AND PROCEDURAL BACKGROUND Ellmaker's convictions arise from the murder of his social worker, Teri Zenner, and the aggravated battery of his mother, Mary Susan Ellmaker (Sue). When the crimes occurred in August 2004, Ellmaker was 17 years old and a senior in high school. He had a long history of mental "dysfunction," dating back to his early childhood. Ellmaker had been diagnosed with having schizotypal personality, which is a personality trait containing some elements of schizophrenia. As part of his treatment regimen, Ellmaker was assigned a social worker through the Johnson County Mental Health Center, and Zenner had served in that role for about a year.

On the day of the crime, Zenner came to Ellmaker's home for an after-school visit. Initially, Ellmaker and Zenner were the only ones in the home. Consequently, most of what the jury learned about the events came from Ellmaker's statements to police. These statements were made several hours after the crimes were committed and after Ellmaker waived his rights under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966). Recordings of the police interviews were played to the jury.

4

According to Ellmaker, when Zenner arrived she indicated the meeting would be short. She quickly completed some paper work for Ellmaker to sign and then prepared to leave. But Ellmaker did not want her to leave, and he asked her to go upstairs to his bedroom. Ellmaker told the detective he had a reason for not allowing Zenner to leave, but he did not want to say what it was. Eventually Ellmaker "convinced" Zenner to go to his bedroom.

Once there, Ellmaker pulled out his sharpest knife, which he described as a sharpened chef's knife. Zenner told him she was scared, needed air, and wanted to leave. She told Ellmaker that she would not report the incident, but he told the detective, "I knew she was going to go to the police about me holding her at knife point in my room so I did it."

According to Ellmaker, he "did it" when his mother Sue came home earlier than he expected, approximately 30 minutes after Ellmaker and Zenner had gone into his bedroom. He explained that Zenner was crying loudly when he heard his mother come into the house. Sue testified, however, that she did not hear the crying when she first entered the house. But, after just a few minutes, she went back to her car briefly, reentered the house, and at that point heard Zenner crying. Sue yelled for her son to come downstairs. When nothing happened, Sue persisted, telling Ellmaker numerous times that she wanted both of them to come down. At one point, Sue threatened to call the police, and Ellmaker replied, "When?" Giving Ellmaker until the count of three to come downstairs, Sue began counting down, "Three, two, one."

When Sue got to "one," Zenner sprang for the door. As she did, Ellmaker stabbed her in the throat. Ellmaker told the detective he "just didn't care." Despite the wound, Zenner escaped; she came running out of the bedroom and down the stairs. Ellmaker followed and continued stabbing her+. He explained that "one [stab] came" and "then all the others had to come."

When Ellmaker and Zenner got to the bottom of the stairs, Sue placed herself between Zenner and Ellmaker, yelling for Ellmaker to stop. All three tumbled to the floor, and Sue rolled onto Zenner to protect her. Ellmaker stabbed Sue four times in the back, once in the chest, and once in the right arm; he also slashed her ear. Ellmaker stopped stabbing at them when the knife bent. 5

At that point, Sue ran next door to get help and call 911. Meanwhile, Ellmaker returned to his bedroom, turned on some music, and grabbed his chainsaw from the closet. He explained to the detective that he followed the instructions printed on the chainsaw's box that detailed seven steps for starting and operating the chainsaw. Ellmaker then used the chainsaw to almost sever Zenner's left forearm and her neck. He also slashed her head, back, and right hip. At this point, the chain broke which, according to Ellmaker, caused him to be "pissed off" because he had recently bought the chainsaw.

After using the chainsaw, Ellmaker tried to commit suicide by ingesting a variety of pills. He then left the house with two pellet guns and tried to leave in Zenner's vehicle. When he had trouble getting the car to start, he took gasoline from the garage, poured it on the vehicle, and set it on fire. Ellmaker ran into the street as police arrived. The police ordered him to drop his weapons, which he did. As Ellmaker was being handcuffed, he spontaneously stated, "I just killed my therapist with a chainsaw," and "I cut her down the back, on the arm, [and] I cut her leg off. I don't know if I cut her head off or not."

Because Ellmaker had cut one of his fingers, officers sent him by ambulance to the emergency room at a local hospital where an emergency room physician stitched the finger. The physician testified that he asked Ellmaker how he injured his finger, and Ellmaker replied he was not exactly sure how it happened. Ellmaker reported that he had stabbed his social worker in the neck and then chased her down the hall, stabbing her. He also reported that they fell down the stairs, that he had stabbed his mother, and that at some time during these events he cut his finger. Ellmaker told the physician that after the stabbings stopped, he turned and saw Zenner on the floor and "knew what he had to do." He then "went to get his chainsaw."

Still at the hospital, Ellmaker was interrogated by Sergeant Russell Stamer. After being Mirandized and signing the waiver, Ellmaker agreed to speak to Stamer. Because of the circumstances at the hospital, Stamer conducted two interviews over the course of approximately 2 hours. These are the recorded interviews that were played for the jury.

6

In addition, as part of the investigation, the police executed a search warrant and the coroner performed an autopsy. In executing the search warrant, the police found several knives, a hatchet, an ax, two machetes, and four small ropes in Ellmaker's bedroom. Some of these items were hidden from view, but others, including the ax, were clearly visible. The autopsy revealed Zenner suffered six stab wounds, several of which would have been fatal or potentially fatal. According to the coroner, the likely cause of death was a compound stab wound to the throat. One pathway was 4 inches deep and went through the pulmonary artery, the right chamber of the heart, and the aorta. After suffering this stabbing, Zenner had only seconds to live. In addition, the coroner documented stab wounds to both lungs that were potentially fatal and other nonfatal wounds to her hand and thigh. Most likely, Zenner was dead before Ellmaker used the chainsaw, which inflicted injuries that would otherwise have caused death, including near decapitation.

Ellmaker was charged in juvenile court with premeditated first-degree murder and aggravated battery. As will be discussed in more detail, based in part on a defense stipulation, the district court waived juvenile jurisdiction. At trial, after Ellmaker was certified for prosecution as an adult, defense counsel conceded that Ellmaker's killing of Zenner was intentional, but he argued that it was not premeditated. The jury convicted Ellmaker as charged. He now brings a timely appeal.

I. JURY INSTRUCTION ON CRIMINAL INTENT As his first issue on appeal, Ellmaker claims the district court erred in instructing the jury with Pattern Instructions for Kansas (PIK) Crim. 3d 54.01 (inference of intent), over defense counsel's objection. PIK Crim. 3d 54.01 was used by the district court as the basis for Instruction 10, which states:

"Ordinarily, a person intends all of the usual consequences of his voluntary acts . This inference may be considered by you along with all the other evidence in the case. You may accept or reject it in determining whether the State has met its burden to prove the required criminal intent of the defendant. This burden never shifts to the defendant." (Emphasis added.)

7

Ellmaker's objection is two-pronged, as he contends the presumption contained within the instruction impermissibly lowered the State's burden to prove the specific intent and premeditation elements of the premeditated first-degree murder count.

A. Standard of Review The parties disagree on the standard of review to be applied to our analysis of this issue. The standard of review for criminal jury instructions is primarily defined by K.S.A. 22-3414(3), which states in part:

"No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous." (Emphasis added.)

Thus, the standard of review depends on whether a party states a specific objection to the giving of an instruction. Here, Ellmaker's counsel objected to Instruction 10. Nevertheless, the State argues a clearly erroneous standard of review applies because Ellmaker stated a different objection at trial than the issue he raises on appeal. In other words, using the terminology of the statute, Ellmaker did not "distinctly" state "the grounds of the objection" that he advances on appeal.

The record substantiates the State's argument. In fact, PIK Crim. 3d 54.01 or a similar instruction was proposed by both parties in pretrial filings. Nevertheless, at the instructions conference, defense counsel argued that giving Instruction 10 would be "inappropriate" and objected to the inclusion of the instruction based on the premise that the instruction constituted "burden shifting." Despite the objection, the district court decided to give the instruction in light of this court's repeated rejection of the burden-shifting argument and past approval of PIK Crim. 3d 54.01. See, e.g., State v. Martinez, 288 Kan. 443, 452, 204 P.3d 601 (2009); State v. Woods, 222 Kan. 179, 185-86, 563 P.2d 1061 (1977).

8

On appeal, rather than make the burden-shifting argument asserted at trial, Ellmaker argues the instruction lowered and even negated the State's burden. At oral argument, Ellmaker's appellate counsel attempted to minimize the difference between the objections, arguing the effect of both arguments was essentially the same and the two objections were functionally equivalent.

We disagree. While the focus is on the State's burden of proof, the concepts and legal principles that relate to the argument of whether a burden is shifted to a defendant are different than those that relate to defining and imposing the State's burden of proof in a criminal case. Further, it is important to remember that the purpose of requiring an objection is to allow the district court to correct an error, if one occurred. E.g., State v. Crane, 260 Kan. 208, 218, 918 P.2d 1256 (1996). Here, the district court considered authorities related to the specific objection raised by Ellmaker during the instruction conference, but the district court had no opportunity to consider the argument now being made. Under similar circumstances where a trial objection to a jury instruction was different from the appellate issue, this court has applied the clearly erroneous standard of review. See, e.g., State v. Butler, 257 Kan. 1043, 1065, 897 P.2d 1007 (1995). For these reasons and based on these authorities, we conclude the clearly erroneous standard of review applies to this issue.

The clearly erroneous standard of review under K.S.A. 22-3414(3) is well known: "An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred." Martinez, 288 Kan. 443, Syl.

Download State v. Ellmaker.pdf

Kansas Law