Kuhlman Death-Penalty Case Clouded By Rulings

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The death penalty case against Kevan Deon Kuhlman, the Payson resident arrested Oct. 9 for the murder Susan Birchak, has been clouded by a pair of recent Supreme Court and Arizona Appellate Court rulings, according to Gila County Attorney Daisy Gilker Flores.

Kuhlman, 37, was arrested by the Payson Police Department following a 911 call from Kuhlman reporting that Birchak, his 52-year-old live-in girlfriend, was not breathing.

An autopsy the following day showed that Birchak was the victim of a homicide and had died of strangulation. Birchak was the program manager for TV 7 and worked closely with KMOG over the years.

Wednesday, Kuhlman who has been sitting in a Globe jail cell on a $1 million bond appeared before Judge Robert Duber for a hearing on a defense motion to remand, which was "a request to have the case go back to the grand jury for a new finding of probable cause," Flores said.

Duber chose not to make a decision on the motion, however, before he reviews a transcript of the original grand jury empanelment, Flores said. Until that time, no further hearings will be set in the Kuhlman case.

Meanwhile, Flores said, Duber also must wrestle with new federal and state rulings.

Late last month, the U.S. Supreme Court invalidated the death-sentencing procedures in at least five states, including Arizona, saying that a jury, not a judge, should determine whether the facts in a murder case warrant a death sentence.

In Arizona, Idaho, Montana, Colorado and Nebraska, where about 168 inmates are awaiting execution, state laws allow judges acting alone to weigh the "aggravating factors" in murder cases and decide if capital punishment should be imposed.

The Supreme Court decision almost certainly will lead to changes in those laws for future cases, and Kuhlman's case could become one of them, Gilker said. "This is a death-penalty case, and the Supreme Court ruling (means) our Arizona laws are sort of shot," Flores said.

Further complicating the Kuhlman death-penalty case, she said, is the Arizona Appellate Court's recent ruling that the state statute which defines premeditation is "unconstitutionally vague."

"So as the judge weighs the motion to remand, he has those issues before him as well," Flores said.

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