Murder appeal hinges on wording

New trial sought in capital case because first not letter-perfect

? A few turns of phrase were at issue Wednesday when the Kansas Supreme Court considered the appeal of a man convicted of capital murder for the shooting deaths of a Goddard couple in 1996.

An attorney said Gavin D. Scott should receive a new trial because the criminal complaint against him was flawed.

The attorney, deputy state appellate defender Steven Zinn, also said a prosecutor made improper statements during closing arguments in Scott’s trial, and that incriminating statements Scott made to police should have been suppressed because they occurred after he asked questioning to stop.

Assistant Atty. Gen. Autumn Fox argued that the criminal complaint against Scott was not flawed and that statements a prosecutor made during closing arguments — including “Look into the eyes of a killer” — came after the state presented overwhelming evidence against Scott.

As for suppressing Scott’s statements from the police interrogation, Fox said the statement Zinn took as a request to stop questioning — asking that the session continue the next morning — was ambiguous.

The Supreme Court could rule as early as June 25. Scott’s case already will go back to Sedgwick County District for a new sentencing hearing because of a December 2001 ruling in which the Supreme Court declared that jury instructions used in four capital cases, including Scott’s, were defective.

However, Scott also is trying to have his capital murder conviction overturned as well. He was sentenced to death for killing Doug and Elizabeth Brittain in their sleep, while their three young children were in the house.

Scott’s co-defendant, Jason Wakefield, identified Scott as the shooter. Wakefield was sentenced to serve 80 years in prison with no chance of parole.

Fox said the evidence against Scott was so overwhelming that statements made by a prosecutor during closing argument probably did not influence jurors.

She defended one statement, “He keeps on lying,” as an accurate reflection of the evidence in the case.

“He changed his story every time he turned around,” Fox said.

But Zinn said such statements clearly were improper — going beyond a summation of the evidence and prejudicing a jury’s thinking.

Zinn also argued that Scott should not have been tried under a section of the death penalty law that makes the premeditated killings of two or more during the same chain of events a single capital crime.

He pointed to the complaint against Scott. It said that Scott killed Elizabeth Brittain and that the couple’s killings were part of the same chain of events. But the complaint, Zinn said, did not explicitly allege that Scott killed Doug Brittain.

But Fox said the crucial issue in considering whether a complaint is flawed was whether a defendant understood the charges against him. She said Scott clearly did.

The final point over which the attorneys argued was Scott’s request during the police interrogation.

Zinn said Scott’s request to continue the questioning later clearly was a request to stop the interrogation. But Fox said Scott indicated his willingness to keep talking — then kept talking.