The Kansas Supreme Court today upheld a murder conviction from Wyandotte County, while overturning a provision ordering lifetime postrelease.
A Wyandotte County jury convicted Loviss Todd on charges of felony murder, aggravated robbery, aggravated battery, and aggravated assault. Todd was convicted of the December 2008 murder of Vincent Green.
On direct appeal to the Kansas Supreme Court, Todd challenged the jury instructions, claimed prosecutorial misconduct, and contended that cumulative error denied him a fair trial. Todd also challenged the district court judge’s imposition of lifetime postrelease supervision as part of his life sentence. The court affirmed Todd’s convictions and sentence, with the exception of the provision ordering lifetime postrelease.
The court identified error with the district judge’s failure to instruct the jury on the caution it should exercise in evaluating an accomplice witness’ testimony, but held the error was harmless. The court also held that the district judge should not have instructed the jury that the degree of certainty expressed by an eyewitness is a factor to be weighed in assessing reliability of the identification. But, because the eyewitnesses in this case did not express a degree of certainty on the identification of Todd, the instruction was not clearly erroneous.
The court held that retroactive application of the 2013 amendments made in a state law, which eliminated lesser included offenses of felony murder and expressly provided for retroactive application to cases pending on appeal, does not violate the federal ex post facto clause. Accordingly, Todd was not entitled to a second-degree murder instruction.
The court rejected Todd’s claims of prosecutorial misconduct and cumulative error. The state conceded that Todd’s lifetime postrelease supervision portion of his sentence was improper, and the court vacated that portion of his sentence.
To read the decision, visit http://www.kscourts.org/Cases-and-Opinions/opinions/SupCt/2014/20140425/106021.pdf.