Reaching Conviction by Trial and Error: Amending Grand Jury Indictments

State v. Keys, No. 121, 866 (Kan. June 3, 2022)

Issue:  Whether an amended grand jury indictment was statutorily or constitutionally defective under Kan. Stat. Ann. § 22-3015 so as to deprive Keys of his constitutional right to a fair trial?

Answer:  No.  The amended indictment was not statutorily defective.  While Kan. Stat. Ann. § 22-3015 allows amended indictments in limited circumstances, § 22-3015 does not apply to amended indictments from a grand jury.  Because a grand jury issued Keys’ amended indictment, rather than the prosecutor without grand jury involvement, the amended indictment did not implicate § 22-3015.  The Court did not address the merits of whether the amended indictment violated Keys’ constitutional right against double jeopardy.

Facts:  A grand jury indicted Keys on charges of felony murder, aggravated robbery, and aggravated burglary.  The grand jury soon amended the indictment to include a criminal possession of a firearm charge.  Keys entered a no contest plea to the firearm charge.  A jury acquitted Keys of aggravated burglary but did not reach a verdict on the other two charges.  Thus, the district court declared a mistrial on those counts.  The grand jury amended the indictment again by adding another alternative underlying felony on which the felony-murder charge could be based: distributing or possession with intent to distribute a controlled substance.  In his second trial, the jury convicted Keys of felony murder and aggravated robbery. 

Keys raised five issues on appeal, including whether the second amended indictment was statutorily and constitutionally defective. 

Discussion:  The amended indictment was not statutorily defective.  Kan. Stat. Ann. § 22-3015 specifically disallows amendments to the substance of the charged offense unless the amendment is (1) proposed by the prosecutor, (2) gives the defendant notice and the opportunity to be heard, and (3) changes a plea agreement.  Keys’ argument that the added distribution charge was a substantive amendment fell short because it relied on a flawed premise: that the prosecutor asked the court to amend the indictment without grand jury involvement.  Here, the grand jury issued a second indictment amendment based on new evidence the State presented to it.  Thus, the amended indictment did not implicate Kan. Stat. Ann. § 22-3015.

Keys also argued that the amended indictment was constitutionally defective because it violated Keys’ constitutional right against double jeopardy.  However, the Court refused to address this on its merits because Keys impermissibly asserted the argument for the first time on appeal.

Key Authorities:  Kan. Stat. Ann. § 22-3015 (Supp. 2020) (allowing for indictment amendments but limiting the circumstances in which amendment is allowed).