TOPEKA—The Kansas Supreme Court issued two opinions today in the capital appeals of codefendant brothers Reginald Dexter Carr Jr. and Jonathan D. Carr—affirming 32 of Reginald Carr’s convictions and 25 of Jonathan Carr’s convictions, including one capital conviction for each.
A six-justice majority also vacated each defendant’s remaining death sentence because the trial judge failed to separate the penalty proceedings against them.
The 421-page Reginald Carr opinion discusses issues affecting both brothers’ appeals, while the 57-page Jonathan Carr opinion refers to the Reginald Carr opinion for resolution of issues the two cases have in common.
Reginald and Jonathan Carr were tried jointly in Sedgwick County for a series of crimes committed in December 2000 in Wichita. The charges against them included four capital murders, one felony murder, one attempted first-degree murder, and aggravated kidnappings, aggravated robberies, and sex crimes. At the conclusion of the guilt phase of trial, the jury found Reginald Carr guilty on 50 counts and Jonathan Carr guilty on 43 counts. At the conclusion of the penalty phase of trial, Reginald Carr was given four death sentences, one hard-20 life sentence, and a consecutive total of 570 months’ imprisonment. Jonathan Carr was given four death sentences, one hard-20 life sentence, and a consecutive total of 492 months’ imprisonment.
The court unanimously reversed three of each defendant’s four capital convictions because jury instructions on sex-crime-based capital murder were fatally erroneous and three of the multiple-homicide capital murder charges duplicated the first. The court also unanimously declared certain of the defendants’ sex crime convictions void for lack of district court jurisdiction and reversed a particular rape conviction of each defendant because of multiplicity with another, affirmed conviction.
Although the court identified a total of 11 errors in the guilt phase of trial, a majority of four justices ruled that the accumulated errors did not require further reversals of the defendants’ convictions: “The combined weight of these individually harmless errors pales in comparison to the strength of the evidence against the defendants.”
Individual justices and two combinations of justices filed a total of four separate opinions in each case.
Justice Carol A. Beier, joined by Justices Marla J. Luckert and Justice Lee A. Johnson, disagreed with, among other things, the majority’s decision on whether the 11 guilt phase errors, considered collectively, required reversal of the defendants’ remaining convictions. Among the guilt phase errors the three justices emphasized were the trial judge’s refusal to sever and the judge’s mishandling of the defense’s peremptory strike of the eventual presiding juror. The justices said that it was, “hard to imagine, for instance, a single error with more pervasive likely impact on the direction and content of the evidence before the jury than [the judge’s] refusal to sever the defendants’ prosecutions.”
Justice Johnson also dissented on the basis of the trial judge’s repeated refusal to change venue from Sedgwick County. He wrote that historical Kansas decisions and the majority’s opinion, “set the bar so high [for change of venue] that nothing will suffice short of an actual mob storming the courthouse, carrying burning torches and a rope tied with a hangman’s noose.”
Justice Dan Biles, joined by Justice Nancy Moritz, noted his dissent from the majority’s discussion of the standard of proof governing evidence of mitigating circumstances in the penalty phase of capital trials. His opinion asserted that United States Supreme Court precedent interpreting the Eighth Amendment did not compel the mitigating circumstances instruction the majority would demand.
Justice Nancy Moritz dissented from the majority’s decision to vacate the remaining capital sentence for each defendant. She said the evidence against Reginald and Jonathan Carr was so strong that the failure to sever the penalty portion of the trial could not have affected the ultimate outcome: “[G]iven the unusually egregious facts of this case, [a surviving victim’s] powerful testimony, the overwhelming evidence of aggravating circumstances found by the jury, and the lack of persuasive mitigating evidence, I would hold beyond a reasonable doubt that the jury’s decision to impose the death penalty was not attributable to any joinder error below.”
The two Carr cases will now return to district court for further action.