concurring in part and dissenting in part: I respectfully dissent from two of the majority’s rulings on the guilt phase of Jonathan Carr’s trial: cumulative error and sufficiency of evidence on Count 41.
As discussed in my separate opinion in Reginald Carr’s appeal, State v. Carr, 299 Kan. 1, 315, 331 P.3d 544 (2014) (Beier, J., concurring in part and dissenting in part), two of the district judge’s errors—failure to sever the guilt phase of tire defendants’ trial and rejection of the reverse Batson peremptory challenge—may have been reversible standing alone. Even if the court is unwilling to go that far today, when tírese two errors are considered with the six other J. Carr errors upon which the court unanimously agrees— erroneous instructions on the sex-crime based capital murders, multiplicity of the multiple-homicide based capital murders, lack of subject matter jurisdiction for the victim-on-victim sex charges, automatic exclusion of expert testimony on the reliability of eyewitness identifications, erroneous instruction on eyewitness certainty, and erroneous instruction on aiding and abetting—and Judge Paul Clark’s refusal to grant J. Carr’s motion for mistrial after opening statements, reversal of all of J. Carr’s convictions under the cumulative error doctrine is unavoidable. Despite weighty evidence, there was simply too much pervasive and interrelated error in the guilt phase of J. Carr’s trial for me to be confident in the outcome.
I also would hold, for the reasons stated in my separate opinion in the R. Carr appeal, that the evidence supporting Holly G.’s digital self-rape under Count 41 was insufficient to convict J. Carr as a principal. This would mean that Count 42 can stand, rather than being reversed as multiplicitous.
Luckert, and Johnson, JJ., join the foregoing concurring and dissenting opinion.* ⅜ ⅜