The KSC first disposed of some arguments made by the state that the issue was not preserved. The KSC discussed K.S.A. 21-4627(b), governing capital cases, which requires it to consider all issues raised by the parties and allows consideration of issues not raised by the parties. The KSC held that the statute requires consideration of any issue raised by the parties and this issue was raised, so the KSC would consider it regardless of preservation status (which is separate from the court's authority to consider issues not raised by the parties).
After reviewing statutory and constitutional jurisprudence, the KSC summarized the law regarding the use of court-ordered evaluations:
Where a defendant files a notice of intent to assert a mental disease or defect defense under K.S.A. 22-3219, the Fifth Amendment does not prevent the court from ordering the defendant to submit to a mental examination. The filing of such a notice constitutes consent to a court-ordered mental examination by an expert for the State, making Miranda warnings unnecessary. K.S.A. 22-3219(2). Consent to the examination, however, does not waive the defendant's Fifth Amendment privilege so as to entitle the State to use the examination against the defendant at trial. Waiver does not occur unless or until the defendant presents evidence at trial that he or she lacked the requisite criminal intent due to a mental disease or defect. If the defendant withdraws the notice to assert a mental disease or defect defendse or does not present evidence supporting that defense at trial, the Fifth Amendment privilege remains intact and the State may not use the mental examination as evidence against the defendant. If, however, the defendant presents evidence supporting a mental disease or defect, the State may use the court-ordere examination for the limited purpose of rebutting the defendant's mental disease or defect defense.
Applying these rules to Cheever's case, Cheever retained a Fifth Amendment privilege in the Welner examination. Cheever could waive his privilege and allow use of the report under the proper circumstances. Absent such a waiver, however, the report was privileged under the Fifth Amendment. The KSC rejected the state's claim that evidence that Mr. Cheever was intoxicated was evidence of mental disease or defect, but only resulted in a showing of temporary mental incapacity.The KSC also rejected any claim that this evidence should not be excluded because it was impeachment evidence:
We hold the exclusionary rule argument has no relevance here. Cheever's statements to Welner are not excluded as a sanction for governmental misconduct; they are inadmissible because they are protected by the Fifth Amendment privilege against compelled self-incrimination. Cf. Kansas v. Ventris, 556 U.S. 586, 129 S. Ct. 1841, 173 L. Ed. 2d 801 (2009).The KSC went on to analyze the harm of the improper use of the court-ordered examination:
Arguably, it is possible the jury might have convicted Cheever even without Welner's testimony; however, that is not the standard we must apply under Chapman. "The question . . . is not whether the legally admitted evidence was sufficient to support" the verdict, "but, rather, whether the State has proved 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'"As an aside, for guidance, the KSC, following some recent Jessica's Law cases (see here and here) also held that the age of the defendant is effectively an element of a capital conviction resulting in a death sentence.
Because this error violated Cheever's federal constitutional rights, we must reverse unless we can say with "the highest level of certainty that the error did not affect the outcome." After reviewing the entire record, we do not have that level of certainty; we cannot conclude beyond a reasonable doubt that Welner's testimony did not contribute to the verdict in this case. Consequently, the error is not harmless, and Cheever's convictions for capital murder and attempted capital murder must be reversed and remanded for a new trial.
Here is coverage of the case in the Wichita Eagle. Here is further coverage indicating that the state might seek review in the SCOTUS.
[Update: the state filed a cert petition on November 13, 2012.]
Here is coverage on SCOTUSblog naming this as a "petiton of the day," including links to the petition, response, and reply.