IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 80,920

STATE OF KANSAS,

Appellee,

v.

GARY W. KLEYPAS,

Appellant.

SYLLABUS BY THE COURT

1. Evidence of a defendant's mental disease or defect excluding criminal responsibility is not admissible at a trial unless the defendant serves upon the prosecuting attorney and files with the court a written notice of such defendant's intention to assert the defense that the defendant, as a result of mental disease or defect, lacked the mental state required as an element of the offense charged. K.S.A. 22-3219. However, insanity and voluntary intoxication are two separate defenses. No notice of an insanity defense is required where the evidence points only to a temporary mental state negating specific intent caused by the voluntary consumption of alcohol.

2. Factors to be considered in determining whether a confession is voluntary include: (1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused on request to communicate with the outside world; (4) the accused's age, intellect, and background; and (5) the fairness of the officers in conducting the investigation.

3. Voluntariness of a confession is determined from the totality of the circumstances and where a trial court conducts a full prehearing on the admissibility of extrajudicial statements by the accused, determines the statements were freely and voluntarily given, and admits the statements into evidence at trial, appellate courts do not attempt to reweigh the evidence and accept that determination if supported by substantial competent evidence.

4. When a suspect makes a statement which may be ambiguous as to whether the suspect is asserting a right to remain silent, the interrogator may, but is not required to, ask questions to clarify and in any event may continue the questioning.

5. When the facts material to a decision of the court on a motion to suppress evidence are not in dispute, the question of whether to suppress becomes a question of law. An appellate court's scope of review on questions of law is unlimited.

6. It is constitutionally required that a search warrant shall particularly describe the place to be searched and items to be seized. General or blanket warrants which give the executing officers a roving commission to search where they choose are forbidden. The purpose of the constitutional requirement that search warrants particularly describe the place to be searched and the person or property to be seized is to prevent general searches and the seizure of items at the discretion of the officer executing the warrant.

7. Where the affidavit supporting a search warrant contains a particularized description of the items to be seized; the affiant and the affidavit are both present at the scene of the execution of the search warrant, even if the affiant is not the person executing the search warrant; and the officers executing the search warrant are briefed as to the items listed in the affidavit, the description in the affidavit cures a deficiency in the description of the search warrant.

8. When law enforcement officers grossly exceed the scope of a search warrant in seizing property, the particularity requirement is undermined and a valid warrant is transformed into a general warrant, thereby requiring suppression of all evidence seized under the warrant. However, an unlawful seizure of items outside the scope of a warrant does not alone render the whole search invalid and require suppression of all evidence seized, including that lawfully taken pursuant to the warrant. Unless there was a flagrant disregard for the terms of the warrant, only the improperly seized evidence, rather than all the evidence, need be suppressed.

9. Where a defendant attacks the affidavit supporting an arrest warrant based on the omission of material information, he or she must show: (1) The omission was deliberate and (2) the omission was material. An omission is material if the original affidavit together with the previously omitted information would not support a finding of probable cause. Probable cause exists if, under the totality of circumstances as set forth in the affidavit, a fair probability exists that a crime has been committed or is being committed and that the defendant has committed it.

10. Unless a criminal defendant can show bad faith on the part of the State, the State's failure to preserve potentially useful evidence does not constitute a denial of due process of law. The question of whether the State acted in bad faith is a question of fact.

11. A criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence as long as (1) the evidence, when viewed in the light most favorable to the defendant's theory, would justify a jury verdict in accord with that theory and (2) the evidence at trial does not exclude a theory of guilt on the lesser offense. An instruction on a lesser included offense is not proper if from the evidence the jury could not reasonably convict the defendant of the lesser offense.

12. The terms "in the commission of," "attempt to commit," and "flight from," as used in the felony-murder statute, are temporal requirements delineating when a killing may occur and still be part of the underlying felony.

13. In order to require an instruction on felony murder based on the theory that the killing occurred during the "flight from" an inherently dangerous felony, there must be evidence that the killing occurred during flight from the scene of the felony.

14. No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of his or her objection, unless the instruction or failure to give the instruction is clearly erroneous. Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.

15. In a prosecution for an attempt to commit a felony, there is no requirement that a jury be instructed as to a specific overt act the defendant is alleged to have committed.

16. When reviewing challenges to jury instructions, the instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, the instructions do not constitute reversible error although they may be in some small way erroneous.

17. The interpretation of a statute is a question of law, and an appellate court's review is unlimited. The fundamental rule of statutory construction guiding an appellate court's determination is that the intent of the legislature governs when that intent can be ascertained from the statute. When a statute is plain and unambiguous, the appellate court must give it the effect intended by the legislature rather than determine what the law should or should not be.

18. The phrase "or any attempt thereof" modifies all the offenses contained in K.S.A. 21-3439(a)(4) and makes the intentional and premeditated killing of the victim during the commission of or attempt to commit, or subsequent to the commission of or the attempt to commit, the offenses enumerated.

19. Reversible error normally cannot be predicated upon a complaint of misconduct by the prosecutor during closing argument where no contemporaneous objection is lodged. However, if the prosecutor's statements rise to the level of violating a defendant's right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection.

20. An appellate court's analysis of the effect of a prosecutor's allegedly improper remarks in closing argument is a two-step process: First, the appellate court must determine whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. Second, the appellate court must determine whether the remarks constituted plain error; that is, whether they were so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial. In order to find that the remarks were not so gross or flagrant, the appellate court must be able to find that when viewed in light of the record as a whole, the error had little, if any, likelihood of changing the result of the trial.

21. Factors relevant in determining whether a new trial should be granted for prosecutorial misconduct include: (1) whether the misconduct is so gross and flagrant as to deny the accused a fair trial; (2) whether the remarks show ill will on the part of the prosecutor, and (3) whether the evidence against the accused is of such a direct and overwhelming nature that it can be said that the prejudicial remarks of the prosecutor were likely to have little weight in the minds of the jurors.

22. A prosecutor has a duty to refrain from making improper, misleading, inflammatory, or irrelevant statements to the jury. This duty is heightened in capital cases.

23. Opening statements by counsel in criminal prosecutions are not evidence. They are given for the purposes of assisting the jury in understanding what each side expects its evidence at trial will establish and to advise the jury what questions will be presented for its decision. Prosecuting and defense attorneys are permitted reasonable latitude in stating to the jury the facts they propose to prove.

24. In closing argument, the prosecutor may draw reasonable inferences from the evidence but may not comment upon facts outside the evidence.

25. A juror's mental process in reaching the verdict or factors that influence the mental process cannot be inquired into for purposes of impeaching a verdict. Evidence may be received, however, as to conditions and occurrences either within or outside the jury room having a material bearing on the validity of the verdict.

26. The granting of a new trial or the recalling of a juror to inquire into alleged misconduct is a decision within the sound discretion of the trial court. Discretion is abused only where no reasonable person would agree with the actions of the trial court. Where a reasonable person would agree, an appellate court will not disturb the trial court's decision.

27. Where claims of juror misconduct directly implicate the jury's mental processes and cannot be readily verified, a trial court does not abuse its discretion by refusing to recall the jury. Where juror affidavits set forth allegations of misconduct, the truth of which can be verified, the trial court may allow inquiry and order a new trial if in its discretion juror misconduct requires a new trial.

28. The Fourteenth Amendment's guaranty of due process does not require that a prospective juror be totally ignorant of the facts and issues involved in the case. Mere existence on his or her part of a preconceived notion as to the guilt or innocence of the accused is, without more, insufficient to rebut the presumption of impartiality where the juror can lay aside such impression or opinion and render a verdict based on the evidence presented in court.

29. The general rule is that a criminal statute must be strictly construed in favor of the accused and any reasonable doubt about its meaning is decided in favor of anyone subjected to the statute. However, this rule is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.

30. Under K.S.A. 21-4624, the State is only required to provide notice that it intends to seek the death penalty upon conviction for capital murder. The State may at that time provide notice of the aggravating circumstances on which it will rely, but the State is not required to do so as long as it provides such notice within a reasonable time prior to trial. K.S.A. 21-4624 does not require the State to list the evidence it will present with regard to the aggravating circumstances as long as the State has made this evidence known to the defense prior to the sentencing proceeding.

31. Kansas law does not require a trial court to make a pretrial determination of whether there is sufficient evidence of aggravating circumstances to justify a separate penalty phase trial.

32. A criminal defendant is incompetent to stand trial when, because of a mental illness or defect, the defendant is unable to understand the nature and purpose of the proceedings against him or her or where he or she is unable to make or assist in making a defense. On appeal, a reviewing court's inquiry regarding the decision of a district court that a defendant is competent to stand trial is whether the trial court abused its discretion.

33. A party who raises the issue of a defendant's competency to stand trial has the burden of going forward with the evidence which will be measured by the preponderance of the evidence standard.

34. Amnesia alone does not provide a basis for declaring a defendant incompetent to stand trial. Amnesia is a factor to be considered in determining whether a defendant is able to meet the test of competency to stand trial.

35. Challenges for cause are matters left to the sound discretion of the trial court which is in a better position to view the demeanor of prospective jurors during voir dire. A trial court's ruling on a challenge for cause will not be disturbed on appeal unless it is clearly erroneous or amounts to an abuse of discretion.

36. A sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding venirepersons for cause because they voiced general objections to the death penalty or expressed conscientious or religious scruples against the death penalty. However, a prospective juror may be excluded for cause because of his or her views on capital punishment where the juror's views would prevent or substantially impair the juror's ability to follow the instructions of the trial court.

37. K.S.A. 21-4624(b) does not provide for a separate jury in the penalty phase of a capital-murder case. Instead, the same jury that heard the guilt phase also hears the penalty phase. However, a defendant may voir dire the jury prior to the penalty phase in order to remove potentially prejudiced jurors for cause.

38. Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding such alleged misconduct. In order to warrant or require the granting of a new trial, it must affirmatively appear that the conduct was of such nature that it prejudiced the substantial rights of the complaining party. A mere possibility of prejudice from a remark of the trial court is not sufficient to overturn a verdict or judgment. If a proper and reasonable construction will render the remark unobjectionable, an appellate court generally adopts that construction and concludes the remark is not prejudicial.

39. In Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), the United States Supreme Court set a framework designed to prevent the discriminatory exclusion of prospective jurors on the basis of race. Under the Batson framework, the defendant must first make a prima facie case showing that the prosecutor has exercised peremptory challenges on the basis of race. Once such a showing has been made, the burden shifts to the prosecutor to articulate a race-neutral reason for striking the prospective juror. The trial court must then determine whether the defendant has carried the burden of proving purposeful discrimination.

40. Parties may exercise their peremptory challenges to remove from the venire any group of persons. Appellate court review is a rational basis review under the Equal Protection Clause of the United States Constitution.

41. It is not improper for the State to use a peremptory strike to remove a prospective juror on the basis of his or her aversion to imposing the death penalty.

42. Even if trial errors are harmless when considered individually, cumulative trial errors may be so great as to require reversal of a defendant's conviction. The test is whether under the totality of circumstances cumulative error substantially prejudiced the defendant and denied him or her a fair trial.

43. In a capital case, the fundamental respect for humanity underlying the Eighth Amendment to the United States Constitution requires that the sentencer be able to consider the character and record of the individual defendant and the circumstances of the particular offenses as a constitutional, indispensable part of the process of imposing the death penalty.

44. In a capital case, the defendant must not only be allowed to present mitigating circumstances, but the sentencer must also be able to consider and give effect to the mitigating circumstances in imposing the death sentence.

45. K.S.A. 21-4624(e) is not unconstitutional on its face, but it impermissibly mandates the death penalty where the jury finds that the mitigating and aggravating circumstances are in equipoise. As such, it denies what the Eighth Amendment requires: that the jury is to give effect to the mitigating circumstances that it finds exist.

46. This court not only has the authority but also the duty to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute. To accomplish this purpose, the court may read the necessary judicial requirements into the statute.

47. The legislative intent in passing K.S.A. 21-4624 was to provide for a death sentencing scheme by which a sentence of death is imposed in a constitutional manner.

48. K.S.A. 21-4624(e) is construed to provide that if a jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. 21-4625 exist, and further, that such aggravating circumstance or circumstances outweigh the mitigating circumstances found to exist, the defendant shall be sentenced to death. So construed, the intent of the legislature is carried out and K.S.A. 21-4624(e) does not violate the Eighth Amendment's prohibition against cruel and unusual punishment.

49. Our holding requires that this case be remanded for resentencing to allow a jury to reconsider the imposition of the death penalty.

50. In a capital case, the standard of review on appeal as to the sufficiency of evidence regarding an aggravating circumstance is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the existence of the aggravating circumstance beyond a reasonable doubt.

51. In order for the avoid arrest aggravating factor found in K.S.A. 21-4625(5) to apply, the State must prove that a motive--not the dominant or only motive--for the murder was to avoid prosecution.

52. To pass constitutional scrutiny, an aggravating circumstance must channel the discretion of the sentencer with clear and objective standards which provide specific guidance and make possible a rational review of the process of sentencing a defendant to death. An aggravating circumstance must not apply to every defendant convicted of murder but only to a subclass of that larger group. If the sentencer could fairly conclude that an aggravating circumstance applies to every defendant convicted of murder, the circumstance is unconstitutionally vague or overbroad.

53. When the jury is the final sentencer, it is essential that the jurors be properly instructed regarding all facets of the sentencing process; it is insufficient to instruct the jury in the bare terms of an aggravating circumstance that is unconstitutionally vague on its face.

54. In order to find that a murder was committed in an especially heinous, atrocious, or cruel manner so as to satisfy the aggravating circumstance contained in K.S.A. 21-4625(6), the jury must find that the perpetrator inflicted mental anguish or physical abuse before the victim's death.

55. The Kansas definition of "heinous, atrocious or cruel" narrows the class of death eligible defendants consistent with the requirements of the Eighth and Fourteenth Amendments to the United States Constitution.

56. Neither the United States Constitution, the Kansas Constitution, nor Kansas law require a proportionality analysis of a defendant's death sentence.

57. Evidence presented at a capital sentencing proceeding must be relevant to the sentence and have probative value. Evidence secured in violation of the Constitution is not admissible. The State may only introduce evidence of aggravating circumstances which were disclosed to the defendant prior to sentencing, and the defendant must be given a fair opportunity to rebut hearsay statements.

58. A capital defendant may waive trial by jury which also waives sentencing by jury. However, where a defendant pleads guilty, thus waving trial and sentencing by a jury, he or she is still subject to imposition of the death penalty by the court.

59. Section 1 of the Kansas Constitution Bill of Rights and the cruel and unusual punishment clause found in § 9 of the Kansas Constitution Bill of Rights do not prohibit capital punishment per se.

60. In a capital case, written findings with regard to mitigating circumstances are not mandated by either Kansas law or the United States Constitution.

61. No customary international law or international treaty prohibits the State of Kansas from invoking the death penalty as a punishment for certain crimes.

62. K.S.A. 21-4624(b) does not establish a specific time within which the State's motion for a separate sentencing proceeding must be made; rather, the motion requirement is intended to secure the orderly and systematic dispatch of the public business. The State's delay in filing a motion for a separate sentencing proceeding does not invalidate the resulting proceeding, absent prejudice to the defendant.

63. The sentencing proceeding under the Kansas capital-murder scheme has but one purpose: to determine whether the defendant should be sentenced to death. Only two options are contemplated: Either the jury will unanimously agree beyond a reasonable doubt that one or more aggravating circumstances exist and further that such aggravating circumstance or circumstances outweigh the mitigating circumstance or circumstances found to exist, in which case it will sentence the defendant to death; or the jury will fail to so unanimously find, in which case the defendant will not be sentenced to death.

64. The Kansas death penalty scheme requires the jury to weigh the aggravating factors against the mitigating factors. The State should be permitted to introduce evidence regarding the underlying circumstances of the prior crime to satisfy the aggravating circumstance contained in K.S.A. 21-4625(1), notwithstanding the defendant's offer to stipulate to the existence of the aggravating circumstance. However, courts must be careful to exercise their discretion in admitting such evidence in order to protect the rights of the defendant.

65. While evidence that a defendant has been well behaved in prison, and in the future will be similarly well behaved, is a mitigating circumstance, evidence of prison conditions does not bear on the defendant's character, prior record, or the circumstances of the offense. Therefore, it is not mitigating and, thus, generally not admissible at the penalty phase. However, such evidence may be admissible to rebut prosecutorial assertions regarding prison conditions.

66. The sentencing jury may not refuse to consider, as a matter of law, relevant mitigating evidence. However, this does not mean that the jury may not find some circumstances not to be mitigating but, rather, only precludes the jury from determining that it may not legally consider certain mitigating circumstances and evidence. The jury is free to determine for itself what circumstances it chooses to be mitigating and whether the evidence of those circumstances is sufficient.

67. In the absence of a request, the trial court has no duty to inform the jury in a capital murder case of the term of imprisonment to which a defendant would be sentenced if death were not imposed. Where such an instruction is requested, the trial court must provide the jury with the alternative number of years that a defendant would be required to serve in prison if not sentenced to death. Additionally, where a defendant has been found guilty of charges in addition to capital murder, the trial court upon request must provide the jury with the terms of imprisonment for each additional charge and advise the jury that the determination of whether such other sentences shall be served consecutively or concurrently to each other and the sentence for the murder conviction is a matter committed to the sound discretion of the trial court.

68. The heinous, atrocious, or cruel manner aggravating circumstance in K.S.A. 21-4625 is not targeted toward the motive for the killing but, rather, focuses on the manner in which the killing was committed. The heinous, atrocious, or cruel manner aggravating circumstance is not inconsistent with the avoiding arrest aggravating factor.

69. The standard of review and the ultimate question that must be answered with regard to whether prosecutorial misconduct in the penalty phase of a capital trial was harmless is whether the court is able to find beyond a reasonable doubt that the prosecutorial misconduct, viewed in the light of the record as a whole, had little, if any, likelihood of changing the jury's ultimate conclusion regarding the weight of the aggravating and mitigating circumstances. In this determination, the overwhelming nature of the evidence is a factor to be considered, although its impact is limited. The question for the reviewing court is not what effect the constitutional error might generally be expected to have upon a reasonable jury but, rather, what effect it had upon the actual verdict in the case at hand.

70. In order for an appellate court to determine that the evidence is so overwhelming as to make any prosecutorial misconduct harmless, the court must assume that all of the mitigating circumstances claimed by the defendant exist, and it must be able to say that, even so, the weight of the mitigators could not have outweighed that of the aggravating circumstances.

71. Even if instances of prosecutorial misconduct which occur during the penalty phase of a capital trial are harmless error in and of themselves, their cumulative effect must be analyzed. The issue is whether the sum total effect of the misconduct, viewed in light of the record as a whole, had little, if any likelihood of changing the jury's ultimate conclusion regarding the weight of the aggravating and mitigating circumstances.

72. Counsel may not make assertions of fact in the form of questions to a witness absent a good faith basis for believing the asserted matters to be true.

73. While the State must be ready to establish the good faith basis for its questions, its responsibility to do so is triggered by an objection which asks it to do so, and where there is no such objection, the duty does not exist.

74. In the penalty phase of a capital proceeding, where a defendant presents evidence of a mitigating circumstance, the prosecution is permitted to cross-examine defense witnesses as to relevant facts and to introduce relevant evidence in order to rebut the existence of the mitigating circumstance.

75. When relevant evidence is admissible as to one party or for one purpose and is inadmissible as to other parties or for another purpose, the judge upon request shall restrict the evidence to its proper scope and instruct the jury accordingly. Although a trial judge is required to give such an instruction where applicable on request of one of the parties, the failure to do so when not requested is not error unless such failure is clearly erroneous.

76. A conviction based on perjured or false evidence is a violation of due process even in cases where the perjury or false evidence was not induced by the prosecution.

77. The Fifth Amendment to the United States Constitution, as well as § 10 of the Kansas Constitution Bill of Rights, protects the right of a defendant to exercise his or her privilege not to testify and forbids comment by the prosecution on the defendant's silence. A prosecutor commits error when the language used was manifestly intended or was of such a character that the jury would necessarily take it to be a comment on the failure of the accused to testify.

78. It is a violation of a defendant's Fifth Amendment rights for a prosecutor to comment on evidence of the defendant's courtroom behavior where the defendant has exercised his or her right not to testify.

79. Mitigating circumstances are those which in fairness may be considered as extenuating or reducing the degree of moral culpability, or blame, or which justify a sentence of less than death, even though they do not justify or excuse the offense. It is proper for a prosecutor to argue that certain circumstances not be considered as mitigating circumstances. However, it is improper for a prosecutor to argue that certain circumstances should not be considered as mitigating circumstances because they do not excuse or justify the crime.

80. A prosecutor should not express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.

81. It is improper for a prosecutor to state facts in closing argument that are not in evidence or are contrary to the evidence.

82. It is proper for the prosecutor to argue that the defendant is not deserving of the jury's mercy because of the defendant's actions, as long as the prosecutor does not improperly state the law by arguing to the jury that it is prohibited from granting mercy to the defendant because the defendant showed none to the victim.

83. A prosecutor is allowed to introduce relevant evidence to show the victim's mental anguish and, further, to make arguments and inferences from the evidence that the victim suffered such mental anguish, where relevant. However, prosecutorial comments referring to what the victim was thinking are improper because they ask the jury to speculate on facts not in evidence. It is improper for a prosecutor to create an "imaginary script" in order to create and arouse the prejudice and passion of the sentencing jury.

84. During closing argument, a prosecutor may refer to and use photographs of victims admitted at trial as long as the purpose is not to unduly inflame the passions of the jury and prejudice it towards the defendant.

85. The future dangerousness of the defendant is not a statutory aggravating circumstance and it is improper for a prosecutor to make references to a defendant's potential for future dangerousness.

86. It is improper for a prosecutor to argue to the jury that it does not have the responsibility to determine the defendant's sentence.

87. It is proper for a prosecutor to argue that the defendant himself or herself should be held responsible for his or her actions.

88. It is not proper for a prosecutor to argue that a defendant should be punished for his or her prior crime. However, where the fact that the defendant was previously convicted of a felony in which the defendant inflicted death on another is an aggravating circumstance, it is proper for the prosecutor to argue about the relative weight of that aggravating circumstance as compared to the defendant's mitigating circumstances.

Appeal from Crawford district court, DONALD R. NOLAND, judge. Opinion filed December 28, 2001. Affirmed in part, reversed in part, and remanded with directions.

Jessica R. Kunen, chief appellate defender, and Steven R. Zinn, deputy appellate defender, argued the cause, and Rebecca E. Woodman, Reid T. Nelson, and Kirk C. Redmond, assistant appellate defenders, and David Gottlieb, of Kansas Defender Project, of Lawrence, were with them on the briefs for appellant.

Carla J. Stovall, attorney general, argued the cause, and David B. Debenham and Julene L. Miller, deputy attorneys general; Alexander M. Walczak, Athena E. Andaya, John K. Bork, and Jared S. Maag, assistant attorneys general; and Stephen R. McAllister, special assistant attorney general, were with them on the briefs for appellee.

Stephen P. Garvey, John H. Blume III, and Sheri Lynn Johnson, of Ithaca, New York, were on the brief for amicus curiae Cornell Death Penalty Project.

Andrea D. Lyon, of Ann Arbor, Michigan, was on the brief for amicus curiae National Association of Criminal Defense Lawyers.

Paige A. Nichols, of Lawrence, was on the brief for amicus curiae Kansas Association of Criminal Defense Lawyers.

Kent S. Scheidegger, of Sacramento, California, was on the brief for amicus curiae Criminal Justice Legal Foundation.

The opinion of the court was delivered by

Per Curiam: Gary W. Kleypas was sentenced to death for the murder of C.W. He appeals, claiming errors occurred in the jury's determination of his guilt and that death should be imposed. He also raises what he claims are constitutional deficiencies with Kansas statutes authorizing imposition of the death penalty. We conclude that no reversible error occurred during the guilt phase of the trial and affirm all of Kleypas' convictions. We conclude that imposition of the death penalty must be vacated because of an instructional error. We remand for another separate sentencing proceeding to determine whether Kleypas should be sentenced to death.

The Kansas Legislature enacted a death penalty in 1994. See K.S.A. 21-3439; K.S.A. 21-4624. This case represents the first court challenge under the enactment. Kansas law requires an automatic review by this court for anyone who has been sentenced to death under Kansas law:

"(a) A judgment of conviction resulting in a sentence of death shall be subject to automatic review by and appeal to the supreme court of Kansas in the manner provided by the applicable statutes and rules of the supreme court governing appellate procedure. The review and appeal shall be expedited in every manner consistent with the proper presentation thereof and given priority pursuant to the statutes and rules of the supreme court governing appellate procedure.

"(b) The supreme court of Kansas shall consider the question of sentence as well as any errors asserted in the review and appeal and shall be authorized to notice unassigned errors appearing of record if the ends of justice would be served thereby.

"(c) With regard to the sentence, the court shall determine:

(1) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; and

(2) whether the evidence supports the findings that an aggravating circumstance or circumstances existed and that any mitigating circumstances were insufficient to outweigh the aggravating circumstances.

"(d) The court shall be authorized to enter such orders as are necessary to effect a proper and complete disposition of the review and appeal." K.S.A. 21-4627.

We will consider in this opinion Kleypas' assigned errors, as well as our responsibilities under K.S.A. 21-4627, in three parts. Part one deals with issues arising in the guilt or innocence phase of the trial. This phase is, with few exceptions, analogous to the trial in a non-death penalty case. Part two, the penalty phase, concerns the constitutional challenges against the Kansas death penalty. Finally, part three, which is operative only if an accused is convicted of capital murder in the guilt phase, concerns whether the death penalty shall be imposed.

FACTS

On March 30, 1996, the body of Pittsburg State University student C.W. was discovered in the bedroom of her apartment at 113 W. Lindburg in Pittsburg, Kansas. She had been stabbed seven times through the heart, and her liver had been badly damaged, possibly by stomping. Her body was heavily bruised and her jaw was fractured. She also had a wound over her eyebrow that was caused by a sharp object. Socks tied to a chair in the bedroom, along with socks tied to C.W.'s right leg, indicated that C.W. had been tied to the chair at one point. There was also evidence that C.W. had been sodomized by some object, and there were body fluids on her shirt.

On several occasions prior to the murder, C.W. and her roommate, Robyn, had returned to the apartment to find the door open. In September 1995, money and Robyn's camera were stolen from the apartment. At the time it was stolen, the camera had contained film with photographs Robyn had taken on a trip to Padre Island, Texas. The camera also had sand in the viewfinder as the result of that trip. C.W. and Robyn requested that the lock to their apartment be changed as a result of the break-ins.

C.W. and Robyn had also been receiving obscene telephone calls from an unidentified male caller. The caller indicated that he knew their names and wished to engage in anal intercourse with C.W. After Robyn reported the calls to police, C.W.'s mother bought a caller identification unit for the apartment and the calls subsequently ceased.

On the night before the discovery of the body, C.W. and her best friend, Tiffany, had spent the evening watching a video in the apartment. C.W. dropped Tiffany off at her residence at approximately 1 a.m. The two made plans to go to garage sales at 8 a.m. that next morning. Mike, C.W.'s fiancee, returned an earlier call from C.W. shortly after 2 a.m. and spoke to her at that time.

When Tiffany arrived at the apartment at 8 a.m. to meet C.W., no one answered the door. Thinking C.W. had decided to sleep in, Tiffany went to a few garage sales alone. She then went to her house and attempted to call C.W. She left a message and continued to telephone because she knew C.W. was scheduled to work at J.C. Penney's sometime in the early afternoon. After calling Penney's and learning that C.W. was to report to work at 1 p.m. and then calling Mike, who told her that he had not heard from C.W., Tiffany decided to go to the apartment. When no one responded after she knocked on the doors and windows, she became alarmed and went next door to the apartment manager's residence. The manager and her son went with Tiffany, and they entered C.W.'s apartment. Tiffany began to call for C.W. Tiffany noticed that C.W.'s bedroom door was closed, and she knew this was unusual. When she told the manager she was afraid, the manager offered to open the door but Tiffany continued. She called out to C.W., but no one answered, so she opened the door and saw the body on the floor.

Police found a footprint outside the kitchen window of the apartment. Another window and its frame had been broken and the screen removed. The screen was found in the trash behind the apartment and a piece of screen was also found in the bedroom clothes hamper. There was blood on the inside doorknob of the apartment and a bloody handprint on the wall. Blood on a pillow in the bedroom was consistent with someone holding a pillow over the mouth of a person who was bleeding.

Suspicion focused on Kleypas, a neighbor of C.W. Kleypas was also a student at Pittsburg State University and had helped his cousin, a maintenance man, provide service for the neighboring apartment buildings. The police discovered that Kleypas' telephone number had registered on the caller ID in C.W.'s apartment at 1:48 on the morning of the murder. One of the officers recognized the name and knew that Kleypas lived nearby and was on parole for a prior murder. A neighbor found a roll of film on the ground beside Kleypas' car on the morning of the murder. The developed roll contained photographs of Robyn and her friends and three photographs of the inside of Kleypas' apartment.

Officers went to Kleypas' apartment building where they discovered blood on the outer door. A search warrant was obtained and the scene sealed. After the warrant arrived at the scene, officers discovered that the portion of the warrant which contained the list of items to be seized was blank. The officers present conferred and determined that the affidavit could be read together with the warrant. The officers entering Kleypas' apartment were briefed on the items to be seized that were listed in the affidavit. Inside Kleypas' apartment, police collected serological evidence and seized a large quantity of physical evidence, including a shower curtain, a pair of shoes, papers identifying Kleypas as the resident, drug paraphernalia, answering machine tapes, photographs, an empty bottle of Canadian Mist, and a wooden box with a false bottom containing syringes. More drug paraphernalia was found in a hidden space outside the apartment door to Kleypas' unit.

Between 7 and 9 on the morning of the murder, Kleypas went to two stores, writing checks at both for cash. He also withdrew $100 from his bank account and left town.

By that evening, Crawford County Attorney Barry Disney became aware that Kleypas was a suspect. Over the next 2 days, Disney discovered that a report had been filed in 1994 against Kleypas alleging rape and that he had decided not to file charges because he did not think he could win the case. Upon reconsideration, Disney decided to file charges for the 1994 rape. An arrest warrant was issued and Kleypas' name was entered into a national law enforcement database.

On April 1, 1996, Agent Tom Williams of the Kansas Bureau of Investigation (KBI) was contacted by the Springfield, Missouri, Police Department and advised that Kleypas was in custody. Springfield police officers had been called to the Silver Saddle Motel on April 1 regarding an individual who was attempting suicide. Officers entered the motel room to find blood everywhere and John Kleypas, the brother of Gary Kleypas, standing above Gary Kleypas, and holding him down. The officers ordered John Kleypas from the room. As he left, Gary Kleypas dashed into the bathroom, he had so much blood on his body that officers could not identify his wounds.

Gary Kleypas was ordered from the bathroom. He reached into the waistband of his sweat pants and officers pulled their sidearms. Kleypas continued to reach inside his pants as if looking for something. After he was ordered to remove his hands, he held up his hands and one of the officers could see that he was holding a razor blade. Kleypas said over his shoulder that the officers should just go ahead and shoot him. An officer attempted to mace Kleypas but Kleypas stepped into the bathtub, pulled the shower curtain around his head, and began cutting himself on the legs and ankles. Kleypas then leaned back, and the officer sprayed mace directly into his face. Kleypas crawled out of the bathtub as ordered and collapsed in the doorway as he was crawling out of the bathroom. Medical personnel took him to the hospital.

A search of the motel room uncovered several items, including a bloody check with a note on it that stated "Check brain. Full autopsy please." They also found narcotics and needles with the plungers pushed in, a bag containing acne medication, a Wal-Mart receipt, and a camera with sand in the viewfinder. Several officers, including KBI Agent Tom Williams and Detective Stuart Hite of the Crawford County Sheriff's Department, traveled to Springfield. Agent Williams and Detective Hite visited Kleypas at the hospital where he had been admitted for treatment of his wounds. When they inquired of Kleypas how he was doing, Kleypas told them that it would have been better if "this" had worked and held up his bandaged arms. He told them he did not wish to talk to them at that time.

Upon release from the hospital, Kleypas was taken to the Green County, Missouri, Sheriff's Office for booking and was read his rights. He waived extradition to Kansas. Kleypas told Agent Williams and Detective Hite that they should wait to question him until during the ride back to Kansas. Kleypas, Detective Hite, and Agent Williams returned to Girard, Kansas, by car.

In the car, Kleypas admitted that he had killed C.W. Kleypas told the officers that he had entered the front door after ringing the door bell. C.W. answered the door, and Kleypas forced his way in with a filet knife. He forced C.W. into her bedroom and tied her to a chair. When he attempted to tie her hands, she panicked. She told him that if he would leave she would give him a head start before calling police. After being told he had been identified on the caller ID, Kleypas admitted making the telephone calls to the apartment. He said that he had called the night prior to the murder but did not recall saying anything.

Once in Girard at the Crawford County Sheriff's Office, Kleypas agreed to give the officers further details. Kleypas said he first attempted to enter the apartment through the front window. He had taken the screen off and the window broke. He took the screen to a trash can in the alley and then went to the front door. When Kleypas rang the bell the first time, C.W. peered out and called out for Mike, her fiancee. She said she knew it was Mike and said he should stop horsing around. She went back inside and Kleypas rang the bell again. When she answered, he forced himself inside. He said he might have slapped C.W. and that they ran into the couch in the living room. He forced her into the bedroom and made her undress. Kleypas used socks to bind C.W. He attempted intercourse but was unable to obtain an erection. He said he penetrated her vaginally with his fingers. He also admitted that he had been watching C.W. and her roommate and had been making obscene telephone calls to them.

After he put his fingers into her vagina, Kleypas allowed C.W. to dress. She asked him to leave and said she would give him a head start. At some point, C.W. said she recognized him as the man who lived in the green house down the street. After he unplugged the telephone from the wall, there was a struggle because C.W. did not want her hands bound.

When C.W. became free of the chair, Kleypas tried to strangle her with his hands but that did not work. He took a piece of clothing and stuffed it into her mouth. When that was not successful, Kleypas found the knife and stabbed her repeatedly in the chest. He then took the engagement ring from her finger and some of the contents from her purse and left the apartment. Kleypas said he later disposed of some of the clothing he wore that night and other items by dropping them into a dumpster at a Springfield car wash, but he was uncertain what happened to the ring and it was never found.

Kleypas told the officers that after the murder he returned to his apartment, took a shower, and waited for stores to open before writing checks and leaving town. Kleypas also admitted taking the camera. He said that he wanted to plead guilty and spend the rest of his life in prison.

Kleypas was asked to make a written statement, but when he learned that it would take time to get a stenographer, he agreed to a videotaped statement if it was kept short, if he was not interrogated on tape, and if he could review the questions before taping. During the videotaped statement, Kleypas added that after he had tied up C.W., he sat on the bed for a time thinking about what to do.

Kleypas was originally charged with first-degree murder, rape, aggravated criminal sodomy, aggravated robbery, aggravated burglary, burglary of a dwelling, and theft. He was notified in accordance with K.S.A. 21-4624(a) that the State would pursue the death penalty for capital murder.

The jury found Kleypas guilty of capital murder, attempted rape, and one count of aggravated burglary. Upon conclusion of the separate sentencing proceeding the jury, by unanimous vote, found beyond a reasonable doubt the following three aggravating circumstances: (1) Kleypas was previously convicted of a felony in which he inflicted great bodily harm, disfigurement, dismemberment, or death on another, (2) Kleypas committed the crime in order to avoid or prevent a lawful arrest or prosecution, and (3) Kleypas committed the crime in an especially heinous, atrocious, or cruel manner. The jury further found beyond a reasonable doubt that the existence of such aggravating circumstances were not outweighed by any mitigating circumstances which were found to exist. The jury determined that Kleypas should be sentenced to death. Kleypas filed a motion to recall the jurors and a motion for new trial which were denied by the trial court. Additional facts will be presented as necessary to address the issues raised.

PART I--GUILT PHASE

Kleypas raises the following issues challenging his convictions:

Ability to Present a Complete Defense Regarding Confabulation

Admissibility of Kleypas' Confession

Validity of Search Warrant

Validity of Arrest Warrant

The Trial Court's Failure to Suppress DNA Evidence

The Felony-Murder Jury Instruction

The Instruction on Attempted Rape

Failure to Instruct on Simple Battery

Instruction on Voluntary Intoxication

Instruction Regarding State's Failure to Timely Notify Kleypas of Change in Testimony

Whether K.S.A. 21-3439(a)(4) Makes a Killing Occurring During an Attempted Rape Subject to the Death Penalty

Prosecutorial Misconduct in the Guilt Phase

Jury Misconduct

Sufficiency of Notice to Seek the Death Penalty and Failure to Provide a Pretrial Ruling on Whether Sufficient Evidence Existed to Support Aggravating Circumstances

Competency to Stand Trial

Removal of Prospective Juror Molden for Cause­United States Constitution

Removal of Five Jurors for Cause­Kansas Constitution

Denial of a Separate Sentencing Jury

Alleged Judicial Misconduct During Jury Orientation

Alleged Batson Violation for Peremptory Strike Juror Wheeler

Cumulative Error in the Guilt Phase

Issue 1. Ability to Present a Complete Defense Regarding Confabulation

Before trial, a full evidentiary hearing was held on Kleypas' motion to suppress his confession. The videotaped confession detailed Kleypas' actions on the evening of March 29 and the early morning hours of March 30 when C.W. was murdered. The trial court determined that this videotaped confession was freely and voluntarily given. The confession was admitted at trial and shown to the jury.

At trial, Kleypas challenged the reliability and weight to be given to his confession. His expert witnesses sought to establish that he experienced a blackout during the evening and morning of the murder, that his memory of the events related by his confession was impaired, and that the events he related were at least in part supplied by the officers who interrogated him on the return trip to Kansas. More specifically, Kleypas claimed that his confession was, at least in part, the product of confabulation. Confabulation was explained in depth by Kleypas' expert witnesses as the process where one who has little or no memory of events occurring because of a blackout will gather information from outside sources to fill in the gaps in memory.

Defense expert witness Dr. John Wisner, an associate professor of psychiatry at the University of Kansas School of Medicine, testified regarding the concept of confabulation:

"Confabulation is what happens when the brain tries to make up for missing information, tries to fill in missing pieces of data. It is part of a natural reflex that we use just, for example, in vision. There is a hole if you cover up one eye and use only one eye to look at the world, there is actually a hole in your visual field where the nerve comes into the eye. There [are] no sensors there for light. But if you close your eye and look, you are not aware that there is a big hole there. The brain fills in missing information. It slides stuff in from the edges so that we are not aware of the gap. That is what also happens when there is a memory lacuna [hole], when there is a gap in memory, the brain literally will try to bring in extraneous information, little bits and pieces from elsewhere so as to ignore or fill in this big chuckhole in memory."

Dr. Wisner thoroughly explained the process involved in confabulation to the jury. According to Dr. Wisner, there is a danger in questioning someone who has experienced a blackout by using leading questions or hypothetical questions because the question will contain a part of the answer. He described for the jury the difference between lying and confabulation:

"Well, they are completely different. In lying a person knows information and either contradicts it or makes something else up. It is a conscious, knowing act. Confabulation is literally a reflex. It is going to happen whether you want it to or not and if the circumstances are right, it is almost sure to happen."

Blackouts and confabulation were thoroughly explored in Kleypas' direct examination of Dr. Wisner. No limitation was imposed by the court on his testimony.

Following Dr. Wisner, Kleypas called another clinical professor of psychiatry from the University of Kansas School of Medicine, Dr. Ekkehard Othmer. During direct examination, Dr. Othmer was asked if in his medical opinion Kleypas had suffered a blackout during the period of time surrounding the 29th and 30th of March 1996. An objection was made by the State on the basis that the answer to this question related to the criminal responsibility of Kleypas for the acts he committed on those dates. More specifically, the State argued that while Kleypas had initially notified the State under the provisions of K.S.A. 22-3219 that he would rely on evidence of a mental disease or defect excluding criminal responsibility, Kleypas later withdrew this notice.

An extended hearing was conducted outside the presence of the jury on the admissibility of the answer of Dr. Othmer. Notwithstanding the argument of Kleypas that he was seeking admission of Dr. Othmer's answer to attack the credibility of his confession on the basis that it was a product of confabulation, the trial court viewed admission of such evidence as an attempt by Kleypas to rely on the defense of lack of mental disease or defect to establish his lack of criminal responsibility for his acts on the 29th and 30th of March 1996. Had Kleypas not withdrawn his notice to rely on the mental disease or defect provisions of K.S.A. 22-3219, the State would have been entitled to have Kleypas examined by a psychiatrist of its own choosing to rebut such evidence. The court viewed Kleypas' attempt as an indirect attempt to circumvent the provisions of K.S.A. 22-3219, by raising a very technical defense which the trial court characterized as "fundamentally unfair" and as an "ambush." After much discussion and argument, the trial court concluded:

"The Court would deny that and the Court will order as follows. The defendant will be allowed to provide information to the jury through Dr. Othmer's testimony regarding whether or not the defendant was suffering from some sort of black out during that period of time that he gave his confession or his statement so as to induce him or so as to make him prone to confabulate. The defendant seeks to go further than that and explore through this testimony the defendant's state of mind at the time of the matter in question that violates 22-3219. The defendant previously had filed a notice of intent to rely upon the defense of lack of mental state. The defendant later withdrew that request and the court ordered that pursuant to that statute the State would have the opportunity to subject the defendant to its own expert examination.

"Upon being advised of that, the defendant withdrew its notice of the intent to rely upon that statute. The defendant seeks to essentially through the back door get into evidence that sort of information. This is fundamentally unfair to the State. The State has not had the opportunity to examine the defendant as to his state of mind. This is complex information, complex testimony. The State has a right to examine the defendant and, frankly, Mr. Moots [defense counsel], the Court continues to believe that no matter how you phrase it, you are trying to introduce testimony regarding the defendant's state of mind the day in question and, in fact, you have told me you were wanting to introduce the defendant's state of mind on the 29th and 30th.

"If you can limit it to the--to April 2 when the defendant gave his alleged statement and whether or not he was suffering from some sort of mental state that would make him prone to confabulate on April 2, I will allow that but anything beyond that you've gone too far and the Court would not specifically allow that."

Thus, Kleypas was prevented by the ruling of the court from inquiring about his state of mind on the 29th and 30th of March, but was allowed to inquire into his state of mind subsequent to the time of the offenses. The crux of Kleypas' claim is that he was denied his constitutional right to present a complete defense because the court precluded meaningful questioning of Dr. Othmer regarding whether Kleypas' statement to the police was confabulated.

After the trial court's ruling, direct examination of Dr. Othmer continued and Kleypas was able to fully develop his theory that his confession was in part the result of confabulation. Dr. Othmer testified at length concerning confabulation, indicating to the jury that the method of asking questions used in Kleypas' case, including urging him that the two families needed answers and that confession was good for the soul, increased the likelihood of confabulation. Dr. Othmer testified that Kleypas was much more susceptible to confabulation than an ordinary person. Finally, defense counsel asked Dr. Othmer:

"Q. Did the recorded interview that you watched, the twelve minute videotape, allow you to make any medical or psychiatric conclusions about what you believed occurred during the unrecorded statements?

"A. It is clearly a rehearsal. It is clearly picking out certain things from what went on--what went on before because these questions connect poorly. In a live interview, in a naturalistic interview, you pick up the clues from the--from the respondent and this is here missing as I showed with this one question like out of the blue these questions seemed to comment, you wonder where is the connection, where is it coming come from, what does a suspect tell you to prompt such a question.

"Q. Without knowing the exact form of the questions that were asked of Mr. Kleypas in the car, can you tell whether or not Agent Williams and Detective Hite provided him information that allowed him to confabulate parts of his statement to them?

"A. Yes, several of these questions contain information that Mr. Williams and Mr. Hite knew as a fact and they introduced that. Whether that is Mr. Kleypas' true recollection or not is completely unclear.

"Q. Okay. So the form of the question is very important when you are dealing with somebody who may be confabulating at least parts of their statements?

"A. Absolutely. You want to be as open ended as possible and not suggest any facts.

"Q. Okay. And since there is no recording of the earlier statements, can you tell what information was implanted for Mr. Kleypas and what was his own autonomous recollection?

"A. Well, that is difficult to do. Each of the questions that he was asked may have been his recollection, may not have been his recollection, so it is so confounded with the interview technique, that the results are very questionable to me."

With these facts in mind, we turn to our analysis of this issue. Our standard of review concerning this claimed error involves the interpretation of K.S.A. 22-3219, as well as a determination whether, based on the evidence of record, Kleypas was denied his constitutional right to present a complete defense.

K.S.A. 22-3219 provides:

"Evidence of mental disease or defect excluding criminal responsibility is not admissible upon a trial unless the defendant serves upon the prosecuting attorney and files with the court a written notice of such defendant's intention to assert the defense that the defendant, as a result of mental disease or defect lacked the mental state required as an element of the offense charged."

Kleypas initially invoked the above provision but then withdrew his notice prior to trial. The trial court concluded Dr. Othmer's testimony as to a blackout at the time of the offenses charged amounted to evidence of mental disease or defect and was therefore inadmissible. At the same time, both Dr. Wisner and Dr. Othmer were given wide latitude in their testimony concerning confabulation. Dr. Othmer was allowed to give his opinion that Kleypas' confession was in part the product of confabulation.

Our prior cases draw a clear distinction between a defense of insanity and voluntary intoxication. See In re Habeas Corpus Petition of Mason, 245 Kan. 111, 113, 775 P.2d 179 (1989). In Mason, we stated:

"We have recognized that insanity and voluntary intoxication are two separate defenses. In State v. Seely, 212 Kan. 195, 200, 510 P.2d 115 (1973), we held the defendant was not entitled to an insanity instruction because the evidence showed 'alcohol was the key factor in [the defendant's] loss of control and the sina qua non of all of his difficulties.' We held '"mental incapacity produced by voluntary intoxication, existing only temporarily at the time of the criminal offense"' does not reach the level of insanity. 212 Kan. at 197.

. . . .

"To hold that evidence of a temporary mental condition caused by voluntary intoxication requires the defense to plead insanity would be to abolish the distinctions between the two defenses clearly laid out by statute and our cases. No notice of an insanity defense is required where the evidence points only to a temporary mental state negating specific intent caused by the voluntary consumption of alcohol. The trial court thus erred in declaring a mistrial." 245 Kan. at 113-14.

The trial court in Mason had ordered a mistrial because defense counsel had in its opening statement told the jury that the evidence would show that Mason was incapable of forming intent because of his alcohol consumption. Similar to the trial court's ruling in the case we now review, the court in Mason found that evidence supporting the defense theory of a blackout, including Mason's previous history with alcohol, was evidence of mental illness amounting to insanity rather than simply evidence of voluntary intoxication. On appeal, this court reversed and drew a distinction between the defenses of insanity and voluntary intoxication, holding that evidence that a defendant suffered a blackout as a result of alcohol abuse, when introduced to show lack of intent, was not subject to the notice requirements of K.S.A. 22-3219. 245 Kan. at 114.

There is a difference between the claim of Kleypas and that in Mason. Kleypas' claim of a blackout involved not only alcohol but chronic cocaine use and organic brain damage. These additional claims obviously influenced the trial court's decision. Nevertheless, based on Mason and the cases cited therein, together with our consideration of K.S.A. 22- 3219, we conclude that the trial court erred by not allowing Dr. Othmer to express his opinion as to whether Kleypas experienced a blackout at the time of the offenses.

The question we must answer is whether this error prevented Kleypas from presenting a complete defense and denied him a fair trial. See Crane v. Kentucky, 476 U.S. 683, 690-91, 90 L. Ed. 2d 636, 106 S. Ct. 2142 (1986) (holding that the exclusion of evidence which denied the defendant an opportunity to present a defense is subject to harmless error analysis).

In Crane, the prosecutor stressed in his opening statement that the Commonwealth's case rested almost entirely on the defendant's confession. In response, defense counsel outlined what would prove to be the principal avenue of defense--that for a number of reasons, the defendant's confession should not be believed because it was rife with inconsistencies. In response to the prosecutor's motion in limine to exclude such testimony, "the court expressly held that the defense could inquire into the inconsistencies contained in the confession, but would not be permitted to 'develop in front of the jury' any evidence about the duration of the interrogation or the individuals who were in attendance." 476 U.S. at 686. The United States Supreme Court reversed on the basis that the defendant was denied due process of law. The Court noted that the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense and stated:

"That opportunity would be an empty one if the State were permitted to exclude competent, reliable evidence bearing on the credibility of a confession when such evidence is central to the defendant's claim of innocence. In the absence of any valid state justification, exclusion of this kind of exculpatory evidence deprives a defendant of the basic right to have the prosecutor's case encounter and 'survive the crucible of meaningful adversarial testing.' [Citations omitted]." 476 U.S. at 690-91.

Similarly, in U. S. v. Hall, 93 F.3d 1337 (7th Cir. 1996), the 7th Circuit Court of Appeals reversed the defendant's conviction where the trial court did not allow expert testimony that the defendant's personality disorder could cause the defendant to give a false confession. The trial court entirely excluded expert testimony from a psychologist on false confessions, the indicia experts have identified to demonstrate when a false confession is likely to occur, and the factors experts rely on to distinguish between reliable and unreliable confessions. The court further limited the testimony of a psychiatrist, allowing him to testify about the defendant's mental condition but not about the defendant's susceptibility to various interrogation techniques and his capability of confessing to a crime he did not commit.

Unlike Crane and Hall, in this case Dr. Wisner testified extensively on the psychiatric medical aspects of blackouts and the possibility of later confabulation. Dr. Othmer testified that it was his opinion that Kleypas' confession was at least in part confabulated and gave the basis of his opinion. While Kleypas claims that the exclusion of testimony concerning his blackout on the night of the murder denied him the right to present his defense, he was able to show that he had been drinking before the crimes, that there was evidence of extensive cocaine use prior to the night of the murder, and that he suffered from organic brain damage, all of which increased his chances of a blackout and the likelihood that the confession was the product of confabulation. When this evidence is considered with the testimony of Dr. Wisner and Dr. Othmer, it becomes clear that Kleypas was given the opportunity to convince the jury that his confession was in part confabulated. The limitations imposed by the court did not, in our opinion, prevent Kleypas from presenting his theory of defense to the jury, and we are able to conclude beyond a reasonable doubt that the error had little if any effect on the outcome.

Issue 2. Admissibility of Kleypas' Confession

Kleypas filed a motion to suppress statements made to officers during the automobile trip from Missouri to Kansas, and the videotaped statement made to officers after he arrived in Girard. He claims that these statements were involuntary. Hearings were held during 3 days in September 1996 on Kleypas' motion. The trial court denied Kleypas' motion in a written opinion setting forth its findings of fact and conclusions of law. Thereafter, Kleypas raised additional contentions concerning his statements which were denied by the trial court after a further hearing on May 16, 1997.

Kleypas raises three points in this appeal: (1) His statements made shortly after his release from the hospital were involuntary because of his mental condition and an alleged threat by the interrogating officer, (2) the officers ignored his attempt to end the interrogation, and (3) his statements should be stricken because of alleged misconduct on the part of the State.

The standard of review to be applied in assessing Kleypas' claims is well established:

"Factors to be considered in determining whether a confession is voluntary include: (1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused on request to communicate with the outside world; (4) the accused's age, intellect, and background; and (5) the fairness of the officers in conducting the investigation. See State v. Esquivel-Hernandez, 266 Kan. 821, 975 P.2d 254 (1999); State v. Speed, 265 Kan. 26, 34-35, 961 P.2d 13 (1998). Voluntariness of a confession is determined from the totality of the circumstances, and where a trial court conducts a full prehearing on the admissibility of extrajudicial statements by the accused, determines the statements were freely and voluntarily given, and admits the statements into evidence at trial, appellate courts accept that determination if supported by substantial competent evidence and do not attempt to reweigh the evidence. [Citation omitted.]" State v. McCorkendale, 267 Kan. 263, 270-71, 979 P.2d 1239 (1999).

The trial court's determination that Kleypas' statements were made freely and voluntarily is supported by substantial competent evidence. In making its decision, the trial court considered all factors relating to voluntariness as set forth by this court in Esquivel-Hernandez and Speed.

The trial court's decision did not expressly address Kleypas' second allegation that the officers ignored his attempt to end the interrogation. However, we find no merit in this contention. Kleypas makes reference to his statement made during the ride from Missouri to Kansas, which was recorded. In his statement, Kleypas said: "I think that might be all for you." He claims that this statement constituted an unambiguous assertion of his desire to end the interview. We disagree and conclude that the above statement, either standing alone or in context, was not an unambiguous assertion of a desire to end the interview.

"When a suspect makes a statement which may be ambiguous as to whether the suspect is asserting a right to remain silent, the interrogator may, but is not required to, ask questions to clarify and instead may continue questioning. [Citations omitted.]" McCorkendale, 267 Kan. at 273. Kleypas did not unambiguously assert his right to remain silent, Michigan v. Mosley, 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321 (1975), and State v. Matson, 260 Kan. 366, 375, 921 P.2d 790 (1996), which would have required the officers to 'scrupulously honor' that right and cease the interrogation, were not implicated. Instead, his statement was at best ambiguous, thus, permitting the officers to continue their questioning or make an attempt to clarify Kleypas' meaning.

Finally, Kleypas claims that his statements made during the ride back to Kansas from Missouri should be struck because of misconduct on the part of the State. After the court's original ruling on the motion to suppress, the audiotape of the trip back was enhanced by the Federal Bureau of Investigation (FBI). The enhanced version included one of the officers in the car saying: "Are we going to have to get out and walk?" Kleypas filed a supplemental motion to suppress, arguing that this phrase constituted a threat that he would be forced to get out and walk if he did not confess. At the hearing, KBI Agent Williams could not recall making such a statement. Ultimately, Detective Hite recalled that he had made the statement in reference to the small amount of gas left in the car. The court held that the statement was not a threat.

However, after the hearing, Agent Williams listened to the tape and at trial testified that he was the one who had made the statement. The State made no attempt to communicate this to defense counsel. Kleypas asserts that this misconduct on the part of the State should have been sanctioned by suppressing the confession.

The trial court concluded with ample evidentiary support in the record that there was no coercive interrogation of the defendant and no purposefully false testimony by the State that would invalidate the defendant's statement. The record is devoid of evidence to suggest that there was bad faith or a deliberate withholding of the change in Agent Williams' testimony by the prosecution. The court ultimately instructed the jury that it could consider the State's failure to notify defense counsel of the change in testimony when determining the credibility of the witnesses. The findings of the trial court are supported in the record and there is no evidence to support exclusion of Kleypas' confession. We conclude that the court did not err in admitting Kleypas' confession.

Issue 3. Validity of Search Warrant

The trial court found that the search warrant was invalid and not cured by the affidavit in support of the warrant, but that the good faith exception applied and suppression of all the evidence uncovered was not warranted. Kleypas contends that the trial court erred in failing to suppress all of the items taken in the search of his residence. He argues that the search warrant was invalid because it failed to list the items to be seized, that this failure was not cured by the affidavit, and that the officers far exceeded the scope of the search, thus, rendering the good faith exception unavailable.

The factual findings of the trial court are not in dispute. "When the facts material to a decision of the court on a motion to suppress evidence are not in dispute, the question of whether to suppress becomes a question of law. [Citation omitted.] An appellate court's scope of review on questions of law is unlimited." State v. Anderson, 259 Kan. 16, 18, 910 P.2d 180 (1996).

A search warrant was issued for Kleypas' residence at 117 W. Lindburg in Pittsburg. The affidavit in support of the search warrant specifically listed the items to be seized with particularity: "[T]race evidence from the murder victim . . . including but not limited to hair fiber of the [victim], fabric fiber from the clothing of the [victim], . . . any trace evidence from the body, blood from the victim, [and] weapons used in the murder." However, the portion of the actual warrant which references the items to be seized was left blank. When officers at the scene noticed the blank portion of the warrant, Officer Rosebrough, the attesting officer, brought the supporting affidavit to 117 W. Lindburg. After the officers discussed the omission and reviewed the affidavit, they decided the warrant was valid because the supporting affidavit listed the items to be seized with particularity. The specific items were discussed so the officers would know exactly what to seize. Officer Rosebrough did not enter 117 W. Lindburg because of the adopted policy that anyone entering the crime scene at 113 W. Lindburg would not enter the one at 117 W. Lindburg to prevent cross-contamination.

The officers found a crack pipe in a ceiling duct located in a public hallway outside the door to Kleypas' apartment.

Upon entering the apartment, officers photographed the interior, then exited and sealed the apartment awaiting KBI lab analysts. KBI lab technicians entered the apartment later the same day, March 31, 1996, and recovered various items of potential evidence including alleged blood residue.

Officers then reentered the apartment on April 3 to complete the search and specifically to seize the items listed on the affidavit. By this time, the officers were aware that Kleypas had given a statement claiming that he discarded the weapon.

During the search, officers seized items specifically listed and items with apparent blood residue on them. Some items such as shoes and clothing were seized to determine if any blood residue or other trace evidence might be found. Other items such as the telephone answering machine with cassette and videotapes were seized to determine if they revealed any connection between Kleypas and C.W. The officers were aware at this time that C.W.'s caller ID showed a call from Kleypas' apartment on the night of the homicide.

Officers also seized several boxes containing Kleypas' personal effects such as memorabilia, pictures of Kleypas and others, private papers, jewelry, and other mementos as revealed in the inventory. The trial court found these items were seized because they contained documentation verifying Kleypas as the occupant of the apartment. Though not all this paraphernalia proved identity, the officers did not individually examine every item prior to seizure; rather, if a box or packet contained items showing the identity of the occupant of the apartment, the officers seized the entire box or packet. The supervisor of the search team, KBI Agent Adams, believed all items seized had potential evidentiary value.

Officers also found drugs and drug paraphernalia during the search.

The trial court concluded that while an affidavit could be used to cure an insufficient description of the items to be seized in the search warrant, the affidavit must be referenced in the warrant to do so. The court also found that while the officers exceeded the scope of the items described in the affidavit, this conduct did not require the suppression of all the evidence seized. Rather, the trial court ordered that any items not contained in the affidavit be suppressed.

Both the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights protect the rights of the people against unreasonable searches, and both provide that "no [w]arrant[s] shall issue, but upon probable cause, supported by [o]ath or affirmation, [and] particularly describing the place to be searched and the persons or [property] to be seized." U.S. Const. amend. IV; Kan. Const. Bill of Rights, § 15. K.S.A. 22-2502(a) also requires a search warrant to particularly describe a person, place, or means of conveyance to be searched and things to be seized.

"The purpose of the constitutional requirement that search warrants particularly describe the place to be searched and the person or property to be seized is to prevent general searches and the seizure of items at the discretion of the officer executing the warrant." State v. LeFort, 248 Kan. 332, Syl. ¶ 1, 806 P.2d 986 (1991). "'[I]t is constitutionally required that a search warrant shall "particularly" describe the place to be searched. Thus general or blanket warrants which give the executing officers a roving commission to search where they choose are forbidden.' (Emphasis added.)" 248 Kan. at 335 (quoting State v. Gordon, 221 Kan. 253, 258, 559 P.2d 312 (1977). This particularity requirement is equally applicable to the specificity in the items to be seized. See State v. Dye, 250 Kan. 287, 293, 826 P.2d 500 (1992).

The question of whether an affidavit which does list the place to be searched or the items to be seized with particularity may be sufficient to cure an inadequate description in a search warrant has been answered in different ways by different jurisdictions and there is no real universal agreement. See U. S. v. Morris, 977 F.2d 677, 681 n.3 (1st Cir. 1992); U. S. v. George, 975 F.2d 72, 76 (2d Cir. 1992); United States v. Johnson, 690 F.2d 60, 64 (3d Cir. 1982); U. S. v. Gahagan, 865 F.2d 1490, 1496-98 (6th Cir. 1989); U. S. v. Tagbering, 985 F.2d 946, 950 (8th Cir. 1993); U. S. v. Towne, 997 F.2d 537, 548 (9th Cir. 1993); United States v. Wuagneux, 683 F.2d 1343, 1351 n.6 (11th Cir. 1982); U. S. v. Maxwell, 920 F.2d 1025, 1031-32 (D.C. Cir 1990); People v. Staton, 924 P.2d 127, 132 (Colo. 1996); State v. Balduc, 514 N.W.2d 607, 610 (Minn. App. 1994); State v. Stenson, 132 Wash. 2d 668, 696, 940 P.2d 1239 (1997).

In some cases, in order for an affidavit to cure a warrant which is defective for lack of specificity, the affidavit must be incorporated by reference in the warrant and present at the search. See Towne, 997 F.2d at 548; Morris, 977 F.2d at 681 n.3; Maxwell, 920 F.2d at 1031-32; Johnson, 690 F.2d at 64; Staton, 924 P.2d at 132; Balduc, 514 N.W.2d at 610. The court in Towne noted that this two-step rule serves two purposes. It assures that the affidavit actually limits the discretion of the officers executing the warrant and provides the person being searched of notice of the specific items the officer is entitled to seize. 997 F.2d at 548. In others, express incorporation is not necessary if the affidavit is available at the scene. See Gahagan, 865 F.2d at 1496-98; Tagbering, 985 F.2d at 950. See also Wuagneux, 683 F.2d at 1351 n.6 (affidavit sufficient if either incorporated by reference, attached, or present at the scene). In still others, the affidavit must be actually attached to the warrant and incorporated in it. See George, 975 F.2d at 76; Stenson, 132 Wash. 2d at 696.

In Kansas, we have held that an affidavit may cure an omission in the search warrant even though the affidavit is not attached to the warrant or present at the scene, when the affiant was one of the executing officers. See Dye, 250 Kan. at 294-95;LeFort, 248 Kan. at 341 (both cases involving a search warrant that did not sufficiently describe the property to be searched.) In LeFort, we stated:

"In determining whether the description given the executing officer in the warrant was sufficient, the initial examination is directed to the description stated in the warrant. However, if the description in the warrant is inadequate due to a technical irregularity, the focus then shifts to the description contained in the application or affidavit for the warrant if the officers were able to use that description to execute the search warrant. When the officer executing the search warrant is the affiant who described the property to be searched, and the judge finds there was probable cause to search the property described by the affiant and the search is confined to the area which the affiant described in the affidavit, the search does not affect the substantial rights of the accused and is in compliance with the Fourth Amendment of the Constitution of the United States and Section Fifteen of the Kansas Bill of Rights." 248 Kan. at 341.

In the case at hand, although the affiant, Officer Rosebrough, did not actually execute the search warrant, he was present at the scene with the affidavit and the officers who executed the search warrant were briefed on the affidavit so they would know what to seize. There is no appreciable difference between the situation in this case and those in LeFort and Dye. Indeed, the officers had more information in the case at hand because even though the affiant was not actually taking part in the search, he was at the scene along with the affidavit, which was not actually present in either LeFort or Dye. See Dye, 250 Kan. at 294. We, therefore, hold that where the affidavit contains a particularized description of the items to be seized; the affiant and the affidavit are both present at the scene of the execution of the search warrant, even if the affiant is not the person executing the search warrant; and the officers executing the search warrant are briefed as to the items listed in the affidavit, the description in the affidavit cures a deficiency in the description of the search warrant. The warrant was, therefore, valid, and the trial court erred in finding otherwise.

The question remaining is whether the seizure of items outside the scope of the warrant requires suppression of all the evidence seized. "When law enforcement officers grossly exceed the scope of a search warrant in seizing property, the particularity requirement is undermined and a valid warrant is transformed into a general warrant thereby requiring suppression of all evidence seized under that warrant." U. S. v. Medlin (Medlin II), 842 F.2d 1194, 1199 (10th Cir. 1988). See U. S. v. Foster, 100 F.3d 846, 849-50 (10th Cir. 1996). However, "[a]n '[u]nlawful seizure of items outside a warrant does not alone render the whole search invalid and require suppression of all evidence seized, including that lawfully taken pursuant to the warrant.' [Citations omitted.]" Gahagan, 865 F.2d at 1496. Unless there is a flagrant disregard for the terms of the warrant, only the improperly seized evidence, rather than all the evidence, need be suppressed. See Waller v. Georgia, 467 U.S. 39, 43 n.3, 81 L. Ed. 2d 31, 104 S. Ct. 2210 (1984); United States v. Medlin (Medlin I), 798 F.2d 407, 411 (10th Cir. 1986); Wuagneux, 683 F.2d at 1354.

After consideration of the evidence in this case, we agree with the trial court's suppression of only those items not mentioned in the affidavit. Although there were items seized outside the scope of the warrant, the officers' conduct did not evidence a "flagrant disregard" for its terms. Many of the items taken were taken because they identified Kleypas as the owner of the property or because they were in boxes with other items. However, there is no indication that the search rose to the level which the courts in Medlin II and Foster found to justify blanket suppression. See Medlin II, 842 F.2d at 1195-96 (667 items of property not identified in the warrant versus approximately 130 firearms seized in accordance with the warrant); Foster, 100 F.3d at 850 (officers admitted taking "anything of value" whether or not contained in the warrant). Under the facts of this case, blanket suppression was not warranted, and the trial court correctly suppressed only those items seized which were not identified in the search warrant.

Issue 4. Validity of Arrest Warrant

Crawford County Attorney Barry Disney based the warrant for Kleypas' arrest on the allegation of a rape that occurred in January 1994, rather than on the murder of C. W. Before the trial court and now on appeal, Kleypas claims that the affidavit in support of his arrest warrant omitted material matters and that the trial court erroneously relied on hearsay evidence at the suppression hearing. Thus, Kleypas claims that the arrest was illegal and that the trial court erred by denying his motion to suppress his statement and all other evidence derived from the arrest.

In order to analyze this issue, it is necessary to set forth facts regarding the alleged 1994 rape. The victim, D.J., was Kleypas' live-in girlfriend. The police were dispatched to the apartment that D.J. shared with Kleypas where she claimed Kleypas held her hostage for an hour and a half, threatened her with a knife, and raped her by digital penetration. The officers taking the report noted that D.J. appeared to have been drinking and may have been intoxicated. The officers noted also that D.J. appeared somewhat confused about what had happened and might not be telling the true story. There was also some inconsistency in D.J.'s story regarding whether Kleypas had a knife. At the time, Disney declined to prosecute the rape.

The affidavit filed by Disney in support of an arrest warrant based upon the 1994 incident provided:

"That on 1-23-94 Pittsburg Police received a call from a [D.J.]. Officer Joseph Head responded to [D.J.'s] location which was a residence just north of 1706 S. Pine. [D.J.] advised Head that her and her boyfriend, Gary W. Kleypas, had been to J.B.'s Bar & Grill in Pittsburg, Kansas. After leaving J.B.'s they went to the home they mutually shared located at 1706 S. Pine, Pittsburg, Kansas. [D.J.] advised that once at the home she and Kleypas began to argue. [D.J.] advised Head that Kleypas had 'lost control' and held her hostage in the house for 1.5 hours. That during this 1.5 hours he had threatened her and had put his hands around her throat. [D.J.] further advised that Kleypas penetrated her rectum and vagina with his fingers. [D.J.] advised Head that she did not give Kleypas permission to put his finger in her rectum or vagina."

After a full and complete hearing, the trial court issued its memorandum decision finding that Disney declined to prosecute the rape in 1994 because he believed the case would be difficult to win and not because there was insufficient probable cause to support charges. The trial court further found that the following factors involving a reevaluation of the case with additional information prompted the reversal of Disney's position: (1) Disney was advised by the Pittsburg Chief of Police that he should have filed the rape charge in 1994, (2) KBI Special Agent Delaney interviewed D.J. after Kleypas became a suspect in C.W.'s death and indicated that D.J. still maintained that Kleypas had raped her in 1994, and Delaney stated that she would not be a "bad witness," (3) Delaney was able to clear up any confusion over whether Kleypas had a knife during the 1994 incident, (4) Kleypas was a suspect in both the 1994 rape and C.W.'s murder, which had apparent sexual overtones, and (5) Kleypas had been convicted and incarcerated in Missouri for a murder with sexual overtones.

Where a defendant attacks the affidavit supporting an arrest warrant based on the omission of material information, he or she must show: (1) The omission was deliberate, and (2) the omission was material. An omission is material if the original affidavit together with the previously omitted information would not support a finding of probable cause. State v. Breazeale, 238 Kan. 714, 725, 714 P.2d 1356, cert. denied 479 U.S. 846 (1986). Probable cause exists if, under the totality of circumstances as set forth in the affidavit, a fair probability exists that a crime has been committed and that the defendant has committed it. 238 Kan. at 726.

At trial, Kleypas submitted 15 alleged omissions. On appeal, he now relies upon the following three omissions from the affidavit which he contends cast doubt on the veracity of the victim's allegation of rape: (1) The victim had provided inconsistent statements as to whether a knife had been used, (2) the victim had been drinking and could have been intoxicated, and (3) the investigating officer had concluded that the victim appeared confused and might not be telling the truth.

Our scope of review in regard to the alleged error is limited to determining whether substantial competent evidence supports the trial court's findings. Breazeale, 238 Kan. at 724. The trial court, in a well-reasoned opinion, specifically examined each alleged omission in the affidavit, outlined all the evidence relating to probable cause, and found that there was substantial competent evidence to support the issuance of the warrant even considering the omissions. The findings and conclusions of the trial court are amply supported by the record.

Kleypas also contends that the trial court incorrectly relied on inadmissible hearsay at the hearing on the motion to suppress, specifically, Disney's testimony regarding Delaney's conversation with D.J. However, it is clear that the trial court relied on the evidence not to prove the truth of the matter asserted therein but to show its effect on Disney's decision to file the charges in 1996 that he had not filed in 1994. As such, the testimony was not hearsay. See K.S.A. 60-460.

Under these circumstances, applying our standard of review, we affirm the trial court's denial of Kleypas' motion to suppress for lack of probable cause for the arrest warrant.

Issue 5. The Trial Court's Failure to Suppress DNA Evidence

Kleypas argues that the trial court erred in failing to suppress the State's evidence regarding DNA testing by the FBI where the prosecutor failed to inform the FBI of the court's order to exercise good faith in using only that portion of any item necessary for testing. Kleypas contends that because the FBI consumed all the material in its testing, suppression is warranted.

The State sent numerous items to the FBI laboratory for DNA testing. Kleypas requested that the trial court allow him to also examine the evidence. The trial court, in response, made the following order:

"[T]he State can conduct testing of evidentiary objects that consumes those objects, however, there is no need to simply destroy items of evidence. . . . You are free to conduct whatever testing you deem appropriate. Now, I will ask, indeed, I will order the State to exercise good faith. Don't unduly consume an evidentiary item. Use that portion of the item that is necessary for testing but don't just arbitrarily consume something completely unless such is necessary for the testing. So don't go overboard I guess is what I'm saying."

Of the items sent, one was a sock that had been tied around the victim's leg and another was a blue blanket recovered from beneath her body. The FBI totally consumed bloodstains from both items. At trial, the FBI serologist testified that there was a high statistical probability that Kleypas was the donor of the bloodstains found on the sock and blanket.

Prior to trial, Kleypas filed a motion to bar the DNA evidence. During hearings on this motion, experts presented conflicting evidence regarding the necessity of consuming all the available material for DNA testing. The experts estimated the sample from the sock and blanket yielded 200 and 400 nanograms of material for testing respectively. Kleypas' witnesses, Dr. Dean Stetler, a professor of microbiology, Chair of Genetics, and Director of Undergraduate Biological Sciences, at the University of Kansas, and Dr. Susan Egan, assistant professor in the University of Kansas Department of Microbiology and Program of Genetics, testified that a minimum of 50 nanograms was required to perform a Restriction Fragment Length Polymorphism (RFLP) test and only 250 picograms for the less specific Polymerase Chain Reaction (PCR) test. In Dr. Stetler's opinion, the FBI did not exercise good faith in attempting to preserve at least the minimum amount of material for independent testing by the defense. However, Dr. Stetler stated that 200 nanograms is often a target amount to assure more reliable results.

In rebuttal, Dr. Thomas Callahan, the forensic examiner for the FBI, testified that as a matter of unwritten protocol in DNA testing, his laboratory uses 200 nanograms of matter. If the items come from a crime scene, however, the lab prefers to use 400 nanograms. Dr. Callahan testified that the State did not inform the FBI of the trial court's order to use good faith in any correspondence; however, the FBI consumed all the material from the items as a matter of routine procedure.

When questioned, Dr. Callahan recalled a telephone conversation with prosecutor John Bork, asking that the FBI preserve some material if possible. However, Bork authorized the FBI to use all of the bloodstained material if necessary for its DNA testing. After objection, the trial court agreed to strike the telephone conversation and not consider it in the court's decision.

In its memorandum decision, the trial court commented that the State should have clearly communicated the trial court's order to the FBI lab. The court stated, however, that the real issue before the court was whether the FBI itself exercised good faith in testing the material. The trial court noted that all the experts were in agreement that a minimum of 50 nanograms was required for DNA testing but that the accuracy of the results increase as greater quantities are used.

The trial court found that the sample from the sock comprised approximately 200 nanograms and the sample from the blanket amounted to approximately 400 nanograms. The trial court further found that although the FBI consumed both items in the testing process, the FBI conducted its testing within its standard operating procedures. It was the FBI laboratory's procedure to load a minimum of 200 nanograms, and optimally, 400 nanograms. The fact that this practice is not written manual procedure did not concern the trial court as long as the testimony supported a finding that the FBI did not process this case any differently than any other case handled by the lab.

Therefore, the trial court concluded that in light of the United States Supreme Court decision in Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988), and the trial court's own finding that the FBI followed routine procedure in its handling of the test items, Kleypas' motion to suppress should be denied. Nevertheless, the trial court was mindful of the State's failure to inform the FBI of the court's order to preserve a portion of the material if possible for independent testing. As this failure did not impact the propriety of the testing itself, the trial court found suppression was not appropriate. Instead, the trial court believed the jury should be instructed that it could consider the State's failure to affirmatively request the FBI to make a good faith attempt to preserve a portion of the sample in determining the weight to be given the DNA results.

The trial court correctly applied Youngblood in resolving this issue. In Youngblood, the Arizona Court of Appeals reversed the defendant's conviction on child molestation, sexual assault, and kidnapping based on the State's failure to preserve semen samples from the victim's body and clothing. The United States Supreme Court reversed, finding the State's failure to preserve evidentiary material, absent a showing of bad faith, was not a violation of the Due Process Clause of the Fourteenth Amendment. The Court stated:

"The Due Process Clause of the Fourteenth Amendment, as interpreted in Brady [v. Maryland, 373 U.S. 83 (1963)], makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But we think the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant. . . . We think that requiring a defendant to show bad faith on the part of the police both limits the extent of the police's obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant. We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." 488 U.S. at 57-58.

In Youngblood, the Court found the failure of the police to refrigerate the victim's clothing and to perform tests on semen samples was, at worst, negligence. The Court noted that none of this information was concealed from the defense and that the evidence, such as it was, was made available to the defense. As a result, the Court concluded there was no showing of bad faith. 488 U.S. at 58.

When reviewing a trial court's decision as to the suppression of evidence, an appellate court normally gives great deference to the factual findings of the trial court. The ultimate determination of the suppression of the evidence is a legal question requiring independent appellate determination. State v. Vandiver, 257 Kan. 53, 58, 891 P.2d 350 (1995). The question of whether the State acted in bad faith is a question of fact. State v. Lamae, 268 Kan. 544, 551, 998 P.2d 106 (2000).

Kleypas does not contest the trial court's finding that the FBI acted in good faith. Rather, he directs fault at the State for the FBI's failure to preserve material for independent DNA analysis. Despite Kleypas' attempt to focus solely on the State's conduct, the FBI's good faith was relevant to the trial court's decision. The trial court clearly considered the State's failure to inform the FBI as part of the circumstances surrounding the DNA testing but found it insufficient to require suppression. This decision is supported by substantial competent evidence.

Based on the United States Supreme Court's decision in Youngblood and the facts of this case, we hold that the trial court did not err in failing to suppress the DNA evidence.

Issue 6. The Felony-Murder Jury Instruction

The trial court gave an instruction on felony murder as a lesser included offense of capital murder. Kleypas contends that the trial court erred, however, in refusing to instruct the jury that a felony murder could occur in the "flight from" an inherently dangerous felony.

K.S.A. 21-3401(b) defines felony murder as the killing of a human being committed "in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto." The instruction given by the trial court omitted the term "flight from" because the trial court found that there was no evidence to support it. Kleypas contends that the jury could have determined that he killed C.W. during his "flight from" an inherently dangerous felony and that the trial court's refusal to include the term "flight from" violated his Sixth Amendment right to a fair trial.

A criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence as long as: (1) the evidence, when viewed in the light most favorable to the defendant's theory, would justify a jury verdict in accord with that theory and (2) the evidence at trial does not exclude a theory of guilt on the lesser offense. State v. Williams, 268 Kan. 1, 15, 988 P.2d 722 (1999). An instruction on a lesser included offense is not proper if from the evidence the jury could not reasonably convict of the lesser offense. State v. Robinson, 261 Kan. 865, 883, 934 P.2d 38 (1997).

Kleypas argues that he was entitled to the "flight from" part of the instruction because there was evidence that he committed the murder to facilitate flight and that the State sought the death penalty based on an aggravating factor which involved flight. He contends that the State's reliance on the aggravating factor that "[t]he defendant committed the crime in order to avoid or prevent a lawful arrest or prosecution" mandates the "flight from" instruction. See K.S.A. 21-4625(5). In State v. Purnell, 126 N.J. 518, 533-34, 601 A.2d 175 (1992), the New Jersey Supreme Court held that where a separate offense encompassed by the aggravating factor is, in itself, a basis for an alternative form of murder that is noncapital, a defendant is constitutionally entitled to have that alternative offered for jury deliberation in the guilt phase.

However, neither of these arguments requires the requested instruction. The terms "in the commission of," "attempt to commit," and "flight from," as used in the felony-murder statute, are temporal requirements delineating when a killing may occur and still be part of the underlying felony. See State v. Hearron, 228 Kan. 693, 694-96, 619 P.2d 1157 (1980). That a murder was committed to facilitate escape or to avoid or prevent arrest or prosecution are matters of intent and, as such, are fundamentally different from the "flight from" requirement for felony murder. A murder may be committed in order to facilitate escape or to avoid or prevent an arrest or prosecution and still not occur during the flight from the crime. Similarly, a murder may occur during the flight from the crime but not have as its purpose the facilitation of escape or the avoidance or prevention of arrest or prosecution. The need for an instruction is instead based on the evidence in each particular case.

In the case at hand, there was no evidence from which a jury could reasonably have convicted Kleypas of felony murder based on the theory that the killing occurred during the "flight from" an inherently dangerous felony. In order to require such an instruction, there must be evidence that the killing occurred during flight from the scene of the felony. There was no such evidence in this case, and the trial court's instruction was correct.

Kleypas also contends that trial court erred by not defining the phrase "in the commission of" in the felony-murder instruction. He argues that the court should have defined the term "commission" to make it clear to the jury that a killing which occurred subsequent to the underlying felony could still be considered felony murder. He argues that such an instruction was necessary in light of the jury instruction on capital murder that used the terminology "in the commission of or subsequent to" the underlying offense.

Kleypas admits that he failed to request such an instruction. We have held:

"No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of his or her objection, unless the instruction or the failure to give the instruction is clearly erroneous. Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred." State v. Cravatt, 267 Kan. 314, Syl. ¶ 1, 979 P.2d 679 (1999).

Despite Kleypas' contention, we conclude that the instruction as given properly stated the law and that the jury could not have been misled by the failure to define the term "commission."

"When reviewing challenges to jury instructions, the instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous." State v. Aikins, 261 Kan. 346, Syl. ¶ 25, 932 P.2d 408 (1997).

Therefore, we conclude that the instruction given was not clearly erroneous.

Issues 7 and 8. The Instruction on Attempted Rape

Kleypas argues that the trial court failed to include an essential element in its instruction on attempted rape. He admits that he failed to object to this instruction or to request a different instruction and, therefore, our review is limited to determining whether the instruction as given was clearly erroneous. Cravatt, 267 Kan. 314, Syl. ¶ 1.

K.S.A. 21-3301(a), defining attempt, states: "An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime." (Emphasis added.) The trial court, however, instructed the jury on the crime of attempted rape as follows:

"If you find the defendant is not guilty of rape, you shall consider if he is guilty of an attempt to commit the crime of rape. To establish this charge, each of the following claims must be proved:

"1. That the defendant performed an act toward the commission of the crime of rape;

"2. That the defendant did so with the intent to commit the crime of rape;

"3. That the defendant failed to complete commission of the crime of rape;

"4. That this act occurred on or about the 30th day of March, 1996, in Crawford County, Kansas." (Emphasis added.)

Kleypas contends that because the instruction given to the jury did not make it clear that an "overt" act was required, the jury might have incorrectly relied on mere acts of preparation to satisfy the overt act requirement.

We have held that an overt act is an essential element of an attempted crime. State v. Collins, 257 Kan. 408, 418, 893 P.2d 217 (1995); State v. Robinson, 256 Kan. 133, 136, 883 P.2d 764 (1994); State v. Gobin, 216 Kan. 278, 280-82, 531 P.2d 16 (1975). Mere preparation is not sufficient to constitute an overt act. Gobin, 216 Kan. at 281-82.

The instruction given by the trial court was taken verbatim from PIK Crim. 3d 55.01. We are puzzled as to why the PIK instruction does not use the word "overt" in keeping with the language of the statute. However, even had the instruction used the word "overt," it would not have alleviated the problem of which Kleypas complains. The word "overt" as used in conjunction with an attempt means: "An outward act, however innocent in itself, done in furtherance of a conspiracy, treason, or criminal attempt." Blacks Law Dictionary 1130 (7th ed. 1999). The word "overt" used in combination with "act" would be no more definitive or descriptive of what acts a jury would be required to find in any particular case in order to support a conviction than the phrase "act towards the commission of a crime."

We hold that the language of the instruction which required the jury to find that "the defendant performed an act toward the commission of the crime" sufficiently instructed the jury with regard to the crime, and the instruction was not clearly erroneous. Nevertheless, in order to further clarify the instruction in the future, we recommend that PIK Crim. 3d 55.01 be amended to insert the word "overt" immediately before the word "act" and to include a sentence which states: "Mere preparation is insufficient to constitute an overt act."

Kleypas also contends, with regard to the instruction on attempted rape, that the instruction was clearly erroneous because it failed to specify the overt act which supported the conviction. Kleypas argues that the jury was required to be unanimous on the overt act which supported the attempted rape and the court should have either required the State to elect an overt act or given an unanimity instruction. Again, because Kleypas did not object to the instruction at trial, our review is limited to the determination as to whether the instruction given was clearly erroneous. Cravatt, 267 Kan. 314, Syl. ¶ 1.

We have held that in a multiple acts case where several acts are alleged and any one of them could constitute the crime charged, the jury must be unanimous as to which act or incident constitutes the crime. State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994). In such a case, either the State must be required to elect the particular criminal act upon which it will rely for conviction or the trial court must instruct the jury that all must agree on the underlying criminal act. 255 Kan. at 289-90. In contrast, in an alternative means case where a single criminal offense may be committed in various ways, there must be unanimity as to guilt on the crime charged, but unanimity is not required as to the means by which the crime was committed. In reviewing an alternative means case, the court must simply determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. 255 Kan. at 289-90.

However, the attempted rape charge at hand presents neither a multiple acts nor an alternative means situation. The possible overt acts need not themselves be illegal or chargeable as criminal offenses and, thus, this is not a multiple acts case. Nor are the overt acts alternative means of committing the offense. Rather, they are acts, however innocent in themselves, which signify and trigger liability for the offense of attempt. As such, there was no requirement that the jury be instructed as to a specific overt act. See State v. Thompson, 3 Kan. App. 2d 426, 430, 596 P.2d 174, rev. denied 226 Kan. 793 (1979). Therefore, the instruction given was not clearly erroneous.

Issue 9. Failure to Instruct on Simple Battery

Kleypas argues that the trial court erred in failing to instruct on simple battery as a lesser included offense of attempted rape. He contends that the evidence adduced at trial to prove attempted rape necessarily proved the offense of simple battery.

A trial court has the affirmative duty to instruct the jury on all lesser included offenses established by the evidence. Instructions on a lesser included offense must be given even though the evidence is weak and inconclusive and consists solely of the testimony of the defendant. State v. Ordway, 261 Kan. 776, 784, 934 P.2d 94 (1997). An instruction on an included offense is not proper if from the evidence the jury could not reasonably convict of the lesser offense. State v. Robinson, 261 Kan. 865, 883, 934 P.2d 38 (1997).

Based on the law in effect at the time the crime was committed, our analysis of whether simple battery was a lesser included offense of attempted rape is conducted under the rules laid out in State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988).

"[Fike] provides a two-pronged test for determining if there is a lesser included crime under K.S.A. 21-3107(2)(d). Under the first prong, the statutory elements of the crime charged and the alleged lesser included crime are examined. If all of the statutory elements of the alleged lesser crime will automatically be proved if the State establishes the elements of the charged crime, the alleged lesser crime is an included crime of the greater. 243 Kan. at 368. If no included crime is found under the first prong, there may still be an included crime under the second prong of the test. Under the second prong, the charging document is examined to determine whether the evidence that must be adduced at trial to prove the crime charged would also necessarily prove another crime. If another crime is necessarily proved by proving the charged crime, the former is an included crime. 243 Kan. at 368." Williams, 268 Kan. at 17.

Simple battery was not a lesser included offense of attempted rape under the first prong of Fike. See State v. Arnold, 223 Kan. 715, 716-17, 576 P.2d 651 (1978) (holding simple battery not a lesser included offense of attempted rape under the elements test). Further, the State was not required to prove that Kleypas touched C.W. in a rude, insolent, or angry manner in order to prove attempted rape. All that was required was that the State prove some overt act toward the commission of rape. Under these circumstances, simple battery was not a lesser included offense of attempted rape, and the trial court did not err in failing to give such an instruction.

Issue 10. Instruction on Voluntary Intoxication

Kleypas raises two contentions with regard to the court's instruction on voluntary intoxication. First, he argues that the instruction changed voluntary intoxication into an affirmative defense thereby improperly placing the burden upon Kleypas. Second, he contends that the instruction prohibited the jury from aggregating intoxication with other evidence of his mental disorder, which also affected his capacity to form the necessary intent.

As we have previously stated, our standard of review for these claims based upon Kleypas' objection to the instruction given is well established:

"When reviewing challenges to jury instructions, the instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous." Aikins, 261 Kan. 346, Syl. ¶ 25.

Kleypas requested the following instruction, which tracked with the provisions of K.S.A. 21-3208(2):

"An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind."

The trial court rejected Kleypas' request and instructed the jury as follows in accordance with PIK Crim. 3d 54.12-A:

"Voluntary intoxication may be a defense to the charge of Capital Murder, Premeditated First-Degree Murder, Second-Degree Murder, Attempted Rape, and the Aggravated Burglary allegedly occurring on March 30, 1996, where the evidence indicates that such intoxication impaired a defendant's mental faculties to the extent that he was incapable of forming the necessary intent to kill as required in the Capital Murder, Premeditated First-Degree Murder, and Second-Degree Murder charges; and the necessary intent to commit a theft as required in the Aggravated Burglary charge, and the intent to commit rape as required in the Attempted Rape charge."

In support of his first argument that the PIK instruction given changed involuntary intoxication to an affirmative defense, Kleypas relies upon our decision in State v. Ludlow, 256 Kan. 139, 883 P.2d 1144 (1994). According to Kleypas, we recognized in Ludlow that PIK Crim. 3d 54.12-A was a significant departure from the statutory language regarding voluntary intoxication in K.S.A. 21-3208(2), thus casting voluntary intoxication as an affirmative defense. This argument misinterprets our holding in Ludlow.

The issue in Ludlow involved the PIK instruction's omission of "or other state of mind" where K.S.A. 21-3208(2) states that voluntary intoxication may be considered "when a particular intent or other state of mind is a necessary element to constitute a particular crime." Ludlow complained that premeditation was an "other state of mind." We agreed with Ludlow and held that the district court's use of PIK Crim. 3d 54.12-A which departed from the statutory language by omitting the phrase "or other state of mind" was error where the defendant is charged with premeditated murder. 256 Kan. at 147.

In tracking the change in the PIK instruction to determine when the removal of "or other state of mind" occurred, Ludlow referenced the pattern instruction approved in State v. Beebe, 244 Kan. 48, 60-61, 766 P.2d 158 (1988), noting that "the most obvious change [in the voluntary intoxication instruction] is in the lead-in declaration--voluntary intoxication changes from not being a defense to possibly being a defense." 256 Kan. at 145. Ludlow did not state that this was error or that the language suggested by the defendant changed voluntary intoxication to an affirmative defense.

In addition to Instruction No. 12 on voluntary intoxication, the trial court instructed the jury in Instruction No. 13 that voluntary intoxication may be a defense to the extent Kleypas was incapable of forming the necessary state of mind of premeditation, following Ludlow. As part of Instruction No. 2, the trial court instructed: "The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced from the evidence that he is guilty." Instruction No. 8 again placed the burden of proof on the State:

"The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced from the evidence that he is guilty.

"The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims made by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant guilty."

In Ludlow, this court read the voluntary intoxication instruction together with another instruction which stated that the State bore the burden of proving "'the required criminal intent of the defendant' and that '[t]his burden never shifts to the defendant,'" and found that the instructions properly advised the jury that "voluntary intoxication may be a defense if the evidence indicates that it rendered Ludlow incapable of forming the necessary intent, that the State had the burden of proving intent, and that Ludlow does not have a burden for showing lack of intent." 256 Kan. at 150. In the case at hand, the instructions, read together, properly advised the jury that the State bore the burden to prove intent, and the instructions did not relieve the State of this burden or make voluntary intoxication an affirmative defense. We also note that the trial court avoided the major problem in Ludlow by giving a separate instruction on voluntary intoxication specifically referencing "other state of mind" and premeditation. Kleypas' first contention fails.

Kleypas' second contention regarding the voluntary intoxication instruction is that the instruction prevented the jury from using the voluntary intoxication evidence unless it found that it alone negated premeditation or intent. He claims that the United States Supreme Court in Martin v. Ohio, 480 U.S. 228, 233-34, 94 L. Ed. 2d 267, 107 S. Ct. 1098 (1987), recognizes that defendants must be permitted to combine different kinds of evidence to negate specific intent for charged crimes. He argues that the instruction given prohibited the jury from considering intoxication for any purpose unless Kleypas established the affirmative defense by a preponderance of evidence. According to Kleypas, because the jury in his case was precluded from considering evidence of voluntary intoxication unless that evidence alone negated specific intent, the instruction ran afoul of both K.S.A. 21-3208 and the Due Process Clause of the United States Constitution.

Martin does not support this contention of Kleypas. The defendant in Martin was charged with aggravated murder. Ohio law placed the burden of proving the elements of a criminal offense upon the prosecution but placed on the accused the burden of proving an affirmative defense by a preponderance of the evidence. Self-defense was an affirmative defense under Ohio law and therefore had to be proved by the defendant. The defendant was convicted and in his appeal to the Supreme Court he claimed that his conviction violated the Due Process Clause because of the burden placed upon him to prove self-defense. The Court disagreed and held that the State did not exceed its authority in defining the crime of murder as purposely causing the death of another with prior calculation or design. It did not seek to shift to Martin the burden of proving any of those elements. The Court noted that it would be quite different if the jury had been instructed that self-defense evidence could not be considered in determining whether there was a reasonable doubt about the State's case, i.e., that self-defense evidence must be put aside for all purposes unless it satisfied the preponderance standard. The Court held that such an instruction would relieve the State of its burden and plainly run afoul of the mandate in In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970), requiri