SENATE BILL No. 449

An Act concerning crimes, criminal procedure and punishment; relating to lesser included offenses; the sentence of death; mitigating circumstances; time limitations on prosecutions for certain crimes; amending K.S.A. 21-3107, 21-4626 and 22-3414 and K.S.A. 1997 Supp. 21-3106, as amended by section 2 of 1998 House Bill No. 2025, and repealing the existing sections.

Be it enacted by the Legislature of the State of Kansas:

    Section 1. K.S.A. 21-3107 is hereby amended to read as follows:
21-3107. (1) When the same conduct of a defendant may establish the
commission of more than one crime under the laws of this state, the
defendant may be prosecuted for each of such crimes. Each of such
crimes may be alleged as a separate count in a single complaint, infor-
mation or indictment.

    (2) Upon prosecution for a crime, the defendant may be convicted
of either the crime charged or an a lesser included crime, but not both.
An A lesser included crime may be any of the following is:

    (a) A lesser degree of the same crime;

    (b) a crime where all elements of the lesser crime are identical to some
of the elements of the crime charged;

    (c) an attempt to commit the crime charged; or

    (c) (d) an attempt to commit a lesser degree of the crime charged;
or crime defined under subsection (2)(a) or (2)(b).

    (d) a crime necessarily proved if the crime charged were proved.

    (3) In cases where the crime charged may include some lesser crime,
it is the duty of the trial court to instruct the jury, not only as to the crime
charged but as to all lesser crimes of which the accused might be found
guilty under the information or indictment and upon the evidence ad-
duced. If the defendant objects to the giving of the instructions, the de-
fendant shall be considered to have waived objection to any error in the
failure to give them, and the failure shall not be a basis for reversal of the
case on appeal.

    (4) (3) Whenever charges are filed against a person, accusing the
person of a crime which includes another crime of which the person has
been convicted, the conviction of the lesser included crime shall not bar
prosecution or conviction of the crime charged if the crime charged was
not consummated at the time of conviction of the lesser included crime,
but the conviction of the lesser included crime shall be annulled upon
the filing of such charges. Evidence of the person's plea or any admission
or statement made by the person in connection therewith in any of the
proceedings which resulted in the person's conviction of the lesser in-
cluded crime shall not be admissible at the trial of the crime charged. If
the person is convicted of the crime charged, or of an a lesser included
crime, the person so convicted shall receive credit against any prison
sentence imposed or fine to be paid for the period of confinement actually
served or the amount of any fine actually paid under the sentence im-
posed for the annulled conviction.

    Sec. 2. K.S.A. 21-4626 is hereby amended to read as follows: 21-
4626. Mitigating circumstances shall include, but are not limited to, the
following:

    (1) The defendant has no significant history of prior criminal activity.

    (2) The crime was committed while the defendant was under the
influence of extreme mental or emotional disturbances.

    (3) The victim was a participant in or consented to the defendant's
conduct.

    (4) The defendant was an accomplice in the crime committed by
another person, and the defendant's participation was relatively minor.

    (5) The defendant acted under extreme distress or under the sub-
stantial domination of another person.

    (6) The capacity of the defendant to appreciate the criminality of the
defendant's conduct or to conform the defendant's conduct to the
requirements of law was substantially impaired.

    (7) The age of the defendant at the time of the crime.

    (8) At the time of the crime, the defendant was suffering from
post-traumatic stress syndrome caused by violence or abuse by the victim.

    (9) A term of imprisonment is sufficient to defend and protect the
people's safety from the defendant.

    Sec. 3. K.S.A. 22-3414 is hereby amended to read as follows: 22-
3414. (1) The prosecuting attorney shall state the case and offer evidence
in support of the prosecution. The defendant may make his an opening
statement prior to the prosecution's offer of evidence, or may make such
statement and offer evidence in support thereof of such statement after
the prosecution rests.

    (2) The parties may then respectively offer rebutting testimony only,
unless the court, for good cause, permits them to offer evidence upon
their original case.

    (3) At the close of the evidence or at such earlier time during the
trial as the judge reasonably directs, any party may file written requests
that the court instruct the jury on the law as set forth in the requests.
The judge shall instruct the jury at the close of the evidence before ar-
gument and the judge may, in his the judge's discretion, after the opening
statements, may instruct the jury on such matters as in his the judge's
opinion will assist the jury in considering the evidence as it is presented.
In cases where there is some evidence which would reasonably justify a
conviction of some lesser included crime as provided in subsection (2) of
K.S.A. 21-3107 and amendments thereto, the judge shall instruct the jury
as to the crime charged and any such lesser included crime.

    The court shall pass upon the objections to the instructions and shall
either give each instruction as requested or proposed or refuse to do so,
or give the requested instruction with modification. All instructions given
or requested must be filed as a part of the record of the case.

    The court reporter shall record all objections to the instructions given
or refused by the court, together with modifications made, and the rulings
of the court.

    No party may assign as error the giving or failure to give an instruction,
including a lesser included crime instruction, unless he the party objects
thereto before the jury retires to consider its verdict stating distinctly the
matter to which he the party objects and the grounds of his the objection
unless the instruction or the failure to give an instruction is clearly er-
roneous. Opportunity shall be given to make the objections out of the
hearing of the jury.

    (4) When the jury has been instructed, unless the case is submitted
to the jury on either side or on both sides without argument, the prose-
cuting attorney may commence and may conclude the argument. If there
is more than one defendant, the court shall determine their relative order
in presentation of evidence and argument. In arguing the case, comment
may be made upon the law of the case as given in the instructions, as well
as upon the evidence.

    Sec. 4. K.S.A. 1997 Supp. 21-3106, as amended by section 2 of 1998
House Bill No. 2025, is hereby amended to read as follows: 21-3106. (1)
A prosecution for murder may be commenced at any time.

    (2) Except as provided by subsection (8), a prosecution for any of the
following crimes must be commenced within five years after its commis-
sion if the victim is less than 16 years of age: (a) Indecent liberties with
a child as defined in K.S.A. 21-3503 and amendments thereto; (b) aggra-
vated indecent liberties with a child as defined in K.S.A. 21-3504 and
amendments thereto; (c) enticement of a child as defined in K.S.A. 21-
3509 and amendments thereto; (d) indecent solicitation of a child as de-
fined in K.S.A. 21-3510 and amendments thereto; (e) aggravated indecent
solicitation of a child as defined in K.S.A. 21-3511 and amendments
thereto; (f) sexual exploitation of a child as defined in K.S.A. 21-3516 and
amendments thereto; or (g) aggravated incest as defined in K.S.A. 21-
3603 and amendments thereto.

    (3) Except as provided in subsection (8), a prosecution for any crime
must be commenced within 10 years after its commission if the victim is
the Kansas public employees retirement system.

    (4) Except as provided by subsection (8), a prosecution for rape, as
defined in K.S.A. 21-3502 and amendments thereto, or aggravated crim-
inal sodomy, as defined in K.S.A. 21-3506 and amendments thereto, must
be commenced within five years after its commission.

    (5) Except as provided in subsection (8), a prosecution for any crime
found in the Kansas medicaid fraud control act must be commenced
within five years after its commission.

    (6) Except as provided by subsection (8), a prosecution for the crime
of arson, as defined in K.S.A. 21-3718 and amendments thereto, or ag-
gravated arson, as defined in K.S.A. 21-3719 and amendments thereto,
must be commenced within five years after its commission.

    (7) Except as provided by subsection (8), a prosecution for any crime
not governed by subsections (1), (2), (3), (4), (5) and (6) must be com-
menced within two years after it is committed.

    (7) (8) The period within which a prosecution must be commenced
shall not include any period in which:

    (a) The accused is absent from the state;

    (b) the accused is concealed within the state so that process cannot
be served upon the accused;

    (c) the fact of the crime is concealed;

    (d) a prosecution is pending against the defendant for the same con-
duct, even if the indictment or information which commences the pros-
ecution is quashed or the proceedings thereon are set aside, or are re-
versed on appeal;

    (e) an administrative agency is restrained by court order from inves-
tigating or otherwise proceeding on a matter before it as to any criminal
conduct defined as a violation of any of the provisions of article 41 of
chapter 25 and article 2 of chapter 46 of the Kansas Statutes Annotated
which may be discovered as a result thereof regardless of who obtains
the order of restraint; or

    (f) whether or not the fact of the crime is concealed by the active act
or conduct of the accused, there is substantially competent evidence to
believe two or more of the following factors are present: (i) The victim
was a child under 15 years of age at the time of the crime; (ii) the victim
was of such age or intelligence that the victim was unable to determine
that the acts constituted a crime; (iii) the victim was prevented by a parent
or other legal authority from making known to law enforcement author-
ities the fact of the crime whether or not the parent or other legal au-
thority is the accused; and (iv) there is substantially competent expert
testimony indicating the victim psychologically repressed such witness'
memory of the fact of the crime, and in the expert's professional opinion
the recall of such memory is accurate and free of undue manipulation,
and substantial corroborating evidence can be produced in support of the
allegations contained in the complaint or information but in no event may
a prosecution be commenced as provided in this section later than the
date the victim turns 28 years of age. Corroborating evidence may in-
clude, but is not limited to, evidence the defendant committed similar
acts against other persons or evidence of contemporaneous physical man-
ifestations of the crime. ``Parent or other legal authority'' shall include
but not be limited to natural and stepparents, grandparents, aunts, uncles
or siblings.

    (8) (9) An offense is committed either when every element occurs,
or, if a legislative purpose to prohibit a continuing offense plainly appears,
at the time when the course of conduct or the defendant's complicity
therein is terminated. Time starts to run on the day after the offense is
committed.

    (9) (10) A prosecution is commenced when a complaint or informa-
tion is filed, or an indictment returned, and a warrant thereon is delivered
to the sheriff or other officer for execution. No such prosecution shall be
deemed to have been commenced if the warrant so issued is not executed
without unreasonable delay.

    Sec. 5. K.S.A. 21-3107, 21-4626 and 22-3414 and K.S.A. 1997 Supp.
21-3106, as amended by section 2 of 1998 House Bill No. 2025, are
hereby repealed.

    Sec. 6. This act shall take effect and be in force from and after its
publication in the statute book.

I hereby certifiy that the above Bill originated in the
Senate, and passed that body

__________________________________

Senate adopted
Conference Committe Report __________________________________

__________________________________

President of the Senate.

__________________________________

Secretary of the Senate.

Passed the House
as amended __________________________

House adopted
Conference Committee Report __________________________

__________________________________

Speaker of the House.

__________________________________

Chief Clerk of the House.

Approved __________________________

__________________________________

Governor.