State v. Kahler

1



IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 106,981

STATE OF KANSAS,
Appellee,

v.

JAMES K. KAHLER,
Appellant.


SYLLABUS BY THE COURT

1.
Under the first step of the two-part test for prosecutorial error set forth in State v.
Sherman, 305 Kan. 88, 378 P.3d 1060 (2016), an appellate court analyzes whether the
prosecutor's statements fall outside the wide latitude afforded prosecutors to conduct the
State's case and attempt to obtain a conviction in a manner that does not offend the
defendant's constitutional right to a fair trial.

2.
It is within a prosecutor's permissible latitude to object that the defense is about to
go beyond the admitted evidence in its summation to the jury.

3.
An appellate court will review allegations of judicial misconduct that were not
preserved at trial when the defendant's right to a fair trial is implicated. Further, K.S.A.
2016 Supp. 21-6619(b) provides the authority for this court to notice unassigned errors in
death penalty appeals.


2



4.
The appellate standard of review on claims of judicial misconduct is unlimited.
The reviewing court will examine the particular facts and circumstances of the case to
determine whether the judicial conduct, including comments other than jury instructions,
manifests bias, prejudice, or partiality, or otherwise significantly undermines the fairness
or reliability of the proceedings.

5.
A district judge is charged with preserving order in the courtroom and with the
duty to see that justice is not obstructed by any person. A judge may caution venire
persons to refrain from making comments that could contaminate the jury pool, but the
better practice would be to clarify that panel members will be provided an opportunity to
raise any personal concerns they may have outside the presence of the other venire
members.

6.
A trial judge has broad discretion to control the courtroom proceedings, but when
it is necessary to comment on a counsel's conduct, especially in the jury's presence, the
judge should do so in a dignified, restrained manner; avoid repartee; limit comments and
rulings to those reasonably required for the orderly progress of the trial; and refrain from
unnecessarily disparaging persons or issues. Specifically, when a judge finds it necessary
to request that counsel complete a voir dire examination more quickly, the better practice
would be for the judge to make the request out of the presence of the venire panel.

7.
It is misconduct for a judge, after having admonished defense counsel during
opening statement about making statements without witness support, to give a special
instruction after the opening statements, advising the jury that statements, arguments, and
3



remarks of counsel are not evidence and may be disregarded if not supported by the
evidence, when the instruction is prefaced by the judge's remark that the court normally
does not do so.

8.
While the trial court is allowed to question witnesses from the bench in order to
fully develop the truth, the better practice is for the judge to discuss the matter with
counsel outside the presence of the jury and request counsel to pose the questions
necessary to clarify the matter.

9.
A trial judge's erroneous ruling on a party's objection, standing alone, is not
grounds for a finding of judicial misconduct. A trial judge's statement "it's improper"
when ruling on an objection is not per se misconduct.

10.
Remarks to the jury that are legally and factually accurate and that do not
demonstrate bias, prejudice, or partiality to either party do not constitute judicial
misconduct.

11.
The party asserting judicial misconduct has the burden to show that any
misconduct found to exist actually prejudiced that party's substantial rights.

12.
Under the facts of this case, the district court erred when it refused to give the
defense's requested instruction on expert witness credibility because the instruction was
legally appropriate and factually supported. Therefore, the next step on appellate review
4



is to apply the harmless error paradigm set out in State v. Ward, 292 Kan. 541, 565, 256
P.3d 801 (2011).

13.
K.S.A. 22-3220, replacing the traditional insanity defense with a mens rea
approach, does not violate the defendant's right to due process under the United States or
Kansas Constitutions.

14.
It is not legally appropriate to give a felony-murder instruction as a lesser included
offense instruction for a capital murder charge, and a trial court does not commit clear
error by failing to give such an instruction sua sponte.

15.
Prohibiting the defense from asking prospective jurors about their views on the
death penalty in the presence of the other venire persons is not erroneous when defense
counsel is permitted to make such an inquiry individually, outside the presence of the
other venire persons.

16.
Cumulative trial errors, when considered collectively, may require reversal of a
defendant's conviction when the totality of circumstances substantially prejudiced the
defendant and denied the defendant a fair trial. The cumulative error rule does not require
reversal if the evidence is overwhelming against the defendant.





5



17.
The Eighth Amendment to the United States Constitution prohibits the infliction
of cruel and unusual punishments. The United States Supreme Court has identified three
subcategories of categorical proportionality Eighth Amendment challenges: (1) Based on
the nature of the offense; (2) based on the characteristics of the offender; and (3) based on
a combination of the offense and the offender, implicating a particular type of sentence as
it applies to an entire class of offenders.

18.
In analyzing an Eighth Amendment categorical proportionality challenge based on
an offender's characteristics, the court first considers objective indicia of society's
standards, as expressed in legislative enactments and state practice, to determine whether
there is a national consensus against the sentencing practice at issue. Next, guided by the
standards elaborated by controlling precedents and by the court's own understanding and
interpretation of the Eighth Amendment's text, history, meaning, and purpose, the court
must determine in the exercise of its own independent judgment whether the punishment
in question is unconstitutionally cruel and unusual.

19.
Pursuant to our decision in State v. Kleypas, 305 Kan. 224, 335-37, 382 P.3d 373
(2016), we again decline to declare a categorical prohibition against imposing a death
sentence based on the broad classification of mental illness.

20.
It is not unconstitutionally duplicative to use the same conduct of the defendant to
establish both an element of capital murder and the existence of an aggravating
circumstance.

6



21.
The aggravating factor that the crime was committed in a heinous, atrocious, or
cruel manner is not so vague and duplicative that it fails to narrow the class of persons
who are constitutionally death penalty eligible.

22.
The standard of review on appeal as to the sufficiency of evidence regarding an
aggravating circumstance is whether, after review of all of 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.

23.
Shooting deaths are not inherently heinous, atrocious, or cruel. But where a
defendant previously electronically stalked, threatened physical harm, and allegedly
battered one of the victims, before methodically going through a house shooting each of
the victims in turn; and where the victims were conscious long enough to suffer the
physical pain of their injuries and the mental anguish of their impending death; while also
being aware that other victims were being shot, the evidence was sufficient to support the
jury's verdict that the capital murder was committed in a heinous, atrocious, or cruel
manner.

Appeal from Osage District Court; PHILLIP M. FROMME, judge. Opinion filed February 9, 2018.
Affirmed.

Meryl Carver-Allmond, of Capital Appellate Defender Office, argued the cause, and Sarah Ellen
Johnson, of the same office, was with her on the briefs for appellant.

7



Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Natalie Chalmers, assistant
solicitor general, and Derek Schmidt, attorney general, were with him on the brief for appellee.

PER CURIAM: A jury convicted James Kraig Kahler of aggravated burglary and
capital murder under K.S.A. 21-3439(a)(6) for fatally shooting his wife, his wife's
grandmother, and his two daughters. Kahler appeals the capital murder conviction and the
ensuing sentence of death; our review is automatic under K.S.A. 2016 Supp. 21-6619.

Kahler raises 10 issues on appeal. Some of the raised issues present questions
decided unfavorably to Kahler in prior cases, and Kahler presents no new argument or
authority that would persuade us to change our holdings on those issues. Likewise,
Kahler fails to convince us that his other challenges warrant a reversal of his capital
murder conviction or a vacation of his death sentence. We summarize our specific
holdings as follows:

 The State did not commit prosecutorial error by objecting during Kahler's
closing argument.
 The district court judge engaged in one incident of judicial misconduct that
does not require reversal.
 The district court judge erred in refusing to give a requested expert witness
instruction, but the error was harmless.
 K.S.A. 22-3220, which adopted the mental disease or defect defense, did
not unconstitutionally abrogate Kansas' former insanity defense.
 Because felony murder is not a lesser included offense of capital murder,
the district court judge did not err in failing to give a lesser included
instruction on felony murder.
 The district court judge did not prohibit defense counsel from questioning
prospective jurors during voir dire about their views on the death penalty.
8



 The cumulative effect of trial errors did not substantially prejudice Kahler
so as to deny him a fair trial.
 The Kansas death penalty is not a categorically disproportionate
punishment for offenders who are severely mentally ill at the time they
commit their crimes.
 The two aggravating factors relied upon by the State to support the death
penalty are not unconstitutionally vague or duplicative.
 There was sufficient evidence presented by the State to establish that the
killings in this case were committed in a heinous, atrocious, or cruel
manner.

Consequently, we affirm Kahler's capital murder conviction and his sentence of
death.

FACTUAL AND PROCEDURAL BACKGROUND

A recitation of some family history preceding the murders is necessary to put
Kahler's crimes in context. In 2008, the Kahler family—husband, Kahler; wife, Karen;
teenage daughters, Emily and Lauren; and 9-year-old son, Sean—was living in
Weatherford, Texas. Kahler was the director of the public utilities department, and Karen
was a personal trainer. Both adults had successful careers. Acquaintances described the
Kahlers as a perfect family. Kahler was extremely proud of his family; it was his top
priority.

That summer, Kahler took a new job as the director of water and light for the city
of Columbia, Missouri. He moved to Columbia, while Karen and the children stayed in
Texas, planning to follow him in the fall. Before Kahler left for Columbia, Karen told
9



him she was interested in experimenting by engaging in a sexual relationship with a
female trainer with whom she worked. Kahler assented to the sexual relationship.

Kahler thought the affair would end when Karen and the children moved to
Missouri; however, it did not. At a New Year's Eve party in Weatherford, Kahler was
embarrassed by Karen and her lover's behavior, and the evening resulted in a shoving
match between the Kahlers. The pair attempted marriage counseling, but by mid-January
2009, Karen filed for divorce. In mid-March, Karen made a battery complaint against
Kahler, which resulted in an arrest warrant being served on Kahler at a city council
meeting. Because Kahler held public office, his arrest was widely publicized. Shortly
thereafter, Karen took the children and moved out of Kahler's residence.

The disintegration of his marriage and family relationships affected Kahler's
conduct, both personally and professionally. Kahler's supervisor and another colleague
both noted Kahler's increasing preoccupation with his personal problems and decreasing
attention to his job. By August 2009, the city had fired Kahler. Concerned about Kahler's
well-being, his parents traveled to Columbia and moved Kahler back to their ranch near
Meriden, Kansas.

Later that year, at Thanksgiving, Sean joined Kahler at the family ranch in
Meriden, while Karen and the girls went to Karen's sister's home in Derby. The family
had a long-standing tradition of spending the weekend after Thanksgiving at the home of
Karen's grandmother, Dorothy Wight, in Burlingame, Kansas. Arrangements had been
made for Karen to pick up Sean in Topeka on Saturday, November 28, and take him to
Wight's residence in Burlingame. That morning, Sean, who had been enjoying his time at
the Meriden ranch, fishing and hunting with his father, called Karen to ask if he could
stay at the ranch. Karen denied permission, and while Kahler was out running an errand,
Kahler's mother took Sean to meet Karen in Topeka.
10




Between 5:30 and 6 that evening, in Burlingame, a neighbor of Wight's called
police about a man in a red Ford Explorer near her home whom she suspected of criminal
activity. The Explorer was later determined to be Kahler's vehicle. Around 6 p.m., Sean
and Karen were standing in the kitchen of Wight's home, while Emily, Lauren, and Wight
were elsewhere in the house. Kahler entered Wight's house through the back door, into
the kitchen, and started shooting. He shot Karen twice but did not attempt to harm Sean.
After Kahler moved through the kitchen to shoot the other victims, Sean ran out the back
door and to a neighbor's home where the police were called.

About the same time, Wight's Life Alert system activated a call for emergency
assistance and that in turn resulted in a 911 call to law enforcement. The system also
created a recording of the events in the house.

When officers arrived, Karen was lying on the kitchen floor, unconscious and
barely breathing. Emily, who had also been shot twice, was dead on the living room
floor. Wight was sitting in a chair in the living room, suffering from a single gunshot
wound to the abdomen, but conscious. Lauren, who had been shot twice, was found
upstairs, conscious but having trouble breathing. Kahler was no longer in the house, but
both Wight and Lauren told the first responders that Kahler was the person who had shot
them. Karen and Lauren died from their wounds later that evening. Wight survived a few
days but ultimately succumbed to her wounds as well.

Kahler managed to elude law enforcement that evening but was found walking
down a country road the next morning. He surrendered without incident. The State
charged Kahler with one count of capital murder, or, in the alternative, four counts of
premeditated first-degree murder, as well as one count of aggravated burglary for the
unauthorized entry into Wight's house.
11




At trial, the defense did not dispute that it was Kahler who shot the victims.
Rather, the defense attempted to establish that severe depression had rendered Kahler
incapable of forming the intent and premeditation required to establish the crime of
capital murder. The defense presented testimony from Dr. Stephen Peterson, a forensic
psychiatrist, who testified that Kahler was suffering from severe major depression at the
time of the crime and that "his capacity to manage his own behavior had been severely
degraded so that he couldn't refrain from doing what he did." Defense counsel, however,
did not specifically ask Dr. Peterson whether Kahler had the capacity to premeditate or to
form the requisite intent to commit the crimes. The State countered with the expert
testimony of Dr. William Logan, also a forensic psychiatrist, who opined that Kahler was
capable of forming the requisite intent and premeditation.

During closing arguments, defense counsel asserted that Kahler was incapable of
forming the requisite premeditation or intent at the time of the killings. In return, the
State argued that the defense expert had failed to specifically address that point, while the
State's expert had directly stated that Kahler was capable of premeditating the murder and
forming the requisite intent to kill.

The jury convicted Kahler of capital murder. After hearing additional evidence in
the penalty phase, the same jury recommended the death sentence.

As noted, Kahler raised 10 issues on appeal, all of which are argued in the context
of the capital murder conviction and the ensuing death sentence. Consequently, we will
review only that conviction and sentence and will address each issue in the order
presented.

12




I. PROSECUTORIAL ERROR

In his first issue, Kahler alleges that the prosecutor engaged in prosecutorial
misconduct when she objected during defense counsel's closing argument. Defense
counsel was discussing the recording produced during the commission of the crime by
the Life Alert system. A male voice, presumably Kahler's, had been captured on the
recording. Defense counsel was about to state the words spoken by that male voice, when
the prosecutor interrupted, objecting that defense counsel's argument constituted
improper unsworn testimony based on what defense counsel thought the voice had said.
The district court sustained the objection.

Standard of Review/Error Analysis

At oral argument, both parties acknowledged that this court's decision in State v.
Sherman, 305 Kan. 88, 378 P.3d 1060 (2016), although decided after the briefs in this
case were filed, now controls the analysis of this issue. Sherman ended the practice
followed by State v. Tosh, 278 Kan. 83, 91 P.3d 1204 (2004) overruled by Sherman, 305
Kan. 88, of attempting to factor a prosecutor's ill will and gross misconduct into the
prejudice step of the two step error/prejudice analysis when reviewing an allegation of
prosecutorial misconduct on appeal. Sherman substituted an analysis that is focused on
the defendant's due process right to receive a fair trial.

Sherman continues to utilize a two-step error/prejudice framework and the first
step—the error analysis—remains the same. See State v. Kleypas, 305 Kan. 224, 316, 382
P.3d 373 (2016). "Under the first step, we will continue to analyze whether the
prosecutor's statements 'fall outside the wide latitude afforded prosecutors to conduct the
State's case and attempt to obtain a conviction in a manner that does not offend the
13



defendant's constitutional right to a fair trial.'" 305 Kan. at 316 (quoting Sherman, 305
Kan. 88, Syl. ¶ 7). If error occurred, the State must prove beyond a reasonable doubt that
"'the error complained of will not or did not affect the outcome of the trial in light of the
entire record, i.e., where there is no reasonable possibility that the error contributed to the
verdict.'" Kleypas, 305 Kan. at 316 (quoting Sherman, 305 Kan. 88, Syl. ¶ 8).

Analysis

Kahler maintains that his right to a fair trial was violated when the prosecutor
objected to defense counsel's attempt in closing argument to repeat what was said by the
male voice on the Life Alert recording. The prosecutor's objection was based on the
assertion that defense counsel was not allowed to state his opinion of the content of the
tape and doing so amounted to improper testimony.

At oral argument, Kahler argued that the objection was error because it was
motivated by bad faith and attempted to liken it to a misstatement of law. In other words,
Kahler attempts to move the bad faith analysis previously conducted under the prejudice
step to the error step. But ill will has never been part of the error determination. And
Sherman is clear that measuring prejudice by attempting to discern the prosecutor's
motivation has been problematic in the past and is no longer appropriate to our analysis
of prosecutorial error within a criminal appeal. Thus, the question before the court under
Sherman, as it was under previous caselaw, is simply whether making an objection, even
one based on an erroneous application of law, was outside the wide latitude afforded the
prosecutor in making her case to the jury.

We conclude that it is within the prosecutor's permissible latitude to object that the
defense is about to go beyond the admitted evidence in its summation to the jury. As we
discuss below, the district court's ruling on the prosecutor's objection may have been
14



erroneous. But this fact has no bearing on the determination of whether the objection
itself was prosecutorial error.

II. JUDICIAL MISCONDUCT

Kahler alleges that the district court judge engaged in misconduct throughout the
trial, which cast his defense in a bad light, favored the State's case, and denied him his
right to a fair trial. Kahler points to six specific instances to illustrate his argument.

At trial, defense counsel failed to object to any of the claimed misconduct. But an
appellate court will review allegations of judicial misconduct that were not preserved at
trial when the defendant's right to a fair trial is implicated. State v. Kemble, 291 Kan. 109,
113, 238 P.3d 251 (2010); State v. Tyler, 286 Kan. 1087, 1090, 191 P.3d 306 (2008);
State v. Brown, 280 Kan. 65, 70, 118 P.3d 1273 (2005). In addition, we are statutorily
obligated to review this issue because of the death sentence imposed. K.S.A. 2016 Supp.
21-6619(b) (court shall review all asserted errors in a death sentence appeal).

Standard of Review

Our standard of review on claims of judicial misconduct is unlimited. We examine
the particular facts and circumstances of the case to determine whether judicial conduct
including comments, other than jury instructions, rise to the level of judicial misconduct.
Kemble, 291 Kan. at 113.

Analysis

The Kansas Code of Judicial Conduct (KCJC) requires a judge to act in a manner
that promotes public confidence in the integrity and impartiality of the judiciary. Canon
15



1, Rule 1.2 (2017 Kan. S. Ct. R. 431); see State v. Miller, 274 Kan. 113, 128, 49 P.3d 458
(2002) ("judge should be the exemplar of dignity and impartiality, should exercise
restraint over judicial conduct and utterances, should suppress personal predilections, and
should control his or her temper and emotions").

An erroneous ruling by a judge, standing alone, will not establish judicial
misconduct. Canon 2, Rule 2.2, Comment [3] (2017 Kan. S. Ct. R. 433) (good-faith
errors of fact or law do not violate KCJC). Rather, the reviewing court will look for
conduct that manifests bias, prejudice, or partiality, or otherwise significantly undermines
the fairness or reliability of the proceedings. Cf. Canon 2, Rule 2.3, Comment [1] (2017
Kan. S. Ct. R. 434) ("judge who manifests bias or prejudice in a proceeding impairs the
fairness of the proceeding and brings the judiciary into disrepute"). The complaining
party has the burden to establish that judicial misconduct occurred and that the
misconduct prejudiced the party's substantial rights. Kemble, 291 Kan. at 113. "'If a
proper and reasonable construction will render the remark unobjectionable, the remark is
not prejudicial.'" Brown, 280 Kan. at 70 (quoting Miller, 274 Kan. at 118).

With those ground rules to guide us, we turn to the individual instances alleged by
Kahler to be judicial misconduct, followed by a consideration of their cumulative effect.

A. Warning a voir dire panel against outbursts of opinion

Kahler first complains of remarks the district judge made to a panel of the jury
pool during voir dire. Four panels of venire members were questioned. The remarks
Kahler finds objectionable were made to the third panel and were part of the district
judge's preliminary remarks explaining voir dire. In addition to asking the panel members

16



to speak clearly for the court reporter and to pay attention to all the questions asked
whether directed specifically to them or not, the district judge added the following
caution:

"It's also important that you be careful. We want you to talk frankly, we want you
to answer questions and speak from your heart, but we don't want any outbursts of
opinions that might prejudice the rest of this panel so before you speak in any manner
like that, think twice. And I warned you, anyway, regarding that, regarding your personal
opinions."

Kahler argues these remarks to the third panel dissuaded the panel members from
expressing their opinions and inhibited the voir dire process. The State counters that, put
in context, the district judge's remarks were nothing more than a reasonable admonition
to prevent one of the potential jurors from tainting the rest of the panel and were well
within the district judge's responsibility to control the courtroom. We agree with the
State.

A district judge is charged with preserving order in the courtroom and with the
duty to see that justice is not obstructed by any person. State v. Rochelle, 297 Kan. 32,
36-37, 298 P.3d 293 (2013). The record establishes that throughout the voir dire of the
first two panels, the district judge had expressed concern about questioning by the
defense that might elicit panel members' views on the death penalty. We have approved
of similar remarks in other cases where the district judge sought to prevent contamination
of the jury pool. See, e.g., State v. Aikins, 261 Kan. 346, 365, 932 P.2d 408 (1997) (trial
court warned potential jurors not to "blurt out" any information they might have about the
case), disapproved on other grounds by State v. Warrior, 294 Kan. 484, 277 P.3d 1111
(2012); State v. Hayden, 281 Kan. 112, 130, 130 P.3d 24 (2006) (district judge cautioned

17



jurors to tread carefully so that other potential jurors would not be prejudiced by
intemperate comments and asked very specific questions so that venire members did not
spontaneously volunteer unnecessary prejudicial information).

We note, however, that the better practice would have included a clarification by
the district judge that panel members would have an opportunity to raise any personal
concerns outside the presence of the other venire members. Cf. Aikins, 261 Kan. at 365
(defense counsel encouraged potential jurors to approach judge individually if they had
racial prejudices which they did not want to express in front of panel). But it is clear that
the district judge's failure to include such a clarification to the third panel was an
oversight, as his comments to the fourth panel included just such a statement.

In sum, we find no misconduct in the district judge's comments to the third panel.

B. Asking defense counsel to move along

Kahler complains that the district judge committed misconduct when he asked
defense counsel to speed up his voir dire questioning. During the defense voir dire of the
third panel on the second morning of jury selection, the district judge told defense
counsel, "we need to move through this a little faster if we can. I realize you have a right
to all your questions but we're running behind now." Kahler argues this shows bias
because the judge did not make a similar request of the State and the defense questioning
had not exceeded the time afforded the prosecutor.

The trial judge has broad discretion in controlling the courtroom proceedings.
Rochelle, 297 Kan. at 37; Kemble, 291 Kan. at 114. "When it is necessary to comment on
counsel's conduct, especially in the jury's presence, the trial court should do so in a
dignified, restrained manner; avoid repartee; limit comments and rulings to those
18



reasonably required for the orderly progress of the trial; and refrain from unnecessarily
disparaging persons or issues." State v. Hudgins, 301 Kan. 629, 638, 346 P.3d 1062
(2015).

Kahler argues that his counsel took no more time for voir dire than the prosecution
had taken. For support, Kahler compares the number of transcript pages that contain voir
dire questioning by the prosecutor to the number taken by defense counsel's questioning.
This method of quantifying time is inherently unreliable. Cf. Hudgins, 301 Kan. at 637
(trial judge requested defense counsel to "pick up the pace" after defense counsel was
silent for about 3 minutes). More to the point, however, there is nothing in the district
judge's comments that reflects negatively on defense counsel's conduct. The statement
concerned the orderly progress of the trial, and nothing suggests that the statement was
delivered in anything less than a dignified and restrained manner. The statement was a
request, not an order, and clearly recognized that defense counsel was entitled to ask his
questions.

We once again note the better practice, which would have the district judge make
such administrative requests out of the presence of the venire panel. Nonetheless, merely
requesting trial counsel to move a little faster, if possible, does not amount to judicial
misconduct. Cf. Hudgins, 301 Kan. at 638-39 (remark, at worst, was a mild warning
within the proper exercise of a district court's authority to control voir dire and avoid
undue delay).

C. Comments on instructing the jury following opening statements

Both parties gave relatively straightforward opening statements. The prosecutor
gave a brief overview of the shootings and then summarized testimony he expected to
elicit from each of the State's witnesses about the crime and the crime scene. The defense
19



focused on painting a picture of the events that led up to the crime: Kahler's professional
success, the many happy years of the Kahlers' marriage and family life, the breakdown of
the marriage, and Kahler's obsession with saving it.

There were no objections during the State's opening; however, the State objected
three times during Kahler's opening. After defense counsel had attributed statements to
Karen, the prosecutor asked to approach the bench. At the bench, the prosecutor lodged
an objection based on hearsay. The district judge sustained the objection and instructed
Kahler's counsel to set out the expected evidence and not to testify. The objection and
discussion were had out of hearing of the jury.

Almost immediately after the bench conference, the prosecutor objected a second
time, saying only "same objection" when counsel for Kahler again attributed statements
to Karen. This time the district judge responded within hearing of the jury: "All right.
[Defense counsel], we talked. Unless you intend to call witnesses to support what you're
saying, they're not allowed."

Later, the prosecutor requested to approach the bench again to lodge an objection
to defense counsel using the word "crazy" to describe Kahler's behavior. The discussion
and the judge's admonition not to use the word were outside the jury's hearing.

Immediately following Kahler's opening statement, the district judge said:

"All right. Ladies and gentlemen of the jury, I'm going to read an instruction to you at this
time. I normally don't do this, but I am going to ask that you listen carefully. This is one
of the instructions that will be given to you later but I wish to give it to you now also.
That statement is: Statements, arguments, and remarks of counsel are intended to help

20



you in understanding the evidence and in applying the law, but they are not evidence. If
any statements are made that are not supported by evidence, they should be disregarded."
(Emphasis added.)

Kahler argues the district judge's comments prior to the actual instruction showed
bias—particularly the comment that the judge did not normally give the instruction but
wished to do so this time. Kahler argues that it amounted to a negative comment on
defense counsel's credibility.

The State focuses only on the instruction and ignores the judge's comments
preceding the instruction. It argues the instruction itself was a fair and accurate statement
of the law. It also points to K.S.A. 2016 Supp. 22-3414(3), which provides "the judge, in
the judge's discretion, after the opening statements, may instruct the jury on such matters
as in the judge's opinion will assist the jury in considering the evidence as it is presented."
But the State fails to acknowledge that the district judge gave the jury a set of instructions
prior to opening statements, which included an instruction on considering only testimony
and exhibits admitted into evidence and an instruction that it is up to the jury to determine
the weight and credit to be given the testimony of each witness.

Given the context of the prosecution's objections during the defense's opening
statement, the judge's comment undoubtedly brought special attention to the instruction.
Moreover, given the timing of the district court's comment, the jury's attention would
undoubtedly have been directed to the defense's opening argument. The jury had just
heard the district judge admonish defense counsel by saying, "Unless you intend to call
witnesses to support what you're saying, they're not allowed." When the district judge
commented immediately on the heels of the opening statements, he underscored his

21



suspicion that the defense would not be able to introduce evidence that would allow the
jury to attribute certain statements to Karen. This belief should not have been revealed to
the jury.

This court has previously warned district judges to "limit[] comments and rulings
to what is reasonably required for the orderly progress of the trial, and refrain[] from
unnecessary disparagement of persons or issues." State v. Miller, 274 Kan. 113, 128,
49 P.3d 458 (2002). Here, the comment added nothing to the orderly progress of the
trial—the instruction could have been given without editorial comment or explanation.
The district judge erred in making the comment.

Error alone does not require reversal, however. "'The question is whether [the
defendant]'s substantial rights to a fair trial were prejudiced by the court's statements.'"
State v. Cheever, 306 Kan. 760, 793-94, 402 P.3d 1126 (2017). Here, the district judge's
isolated comment did not show the type of judicial bias that denies a fair trial. See Miller,
274 Kan. at 129 (finding district judge's numerous statements accumulated to deny a fair
trial). On occasion, district judges reveal, usually unintentionally, a bias on an issue.
Consequently, district judges routinely instruct the jury, as the judge did in this case, that
"I have not meant to indicate any opinion as to what your verdict should be by any ruling
that I have made or anything that I have said or done." See PIK Crim. 4th 50.060.
Nothing suggests the judge's isolated comment here influenced the jury's consideration or
misdirected the jury's focus.

Indeed, the instruction given after the judge's ill-advised comment pointed the jury
exactly where it needed to go: The instruction focused the jury on the evidence. That is
the point of the instruction, which is often given repeatedly through a trial. Consequently,
we hold the judge's comment to be harmless error under either the constitutional or
22



nonconstitutional harmless error standard. See State v. Ward, 292 Kan. 541, 565, 256
P.3d 801 (2011).

D. Personally questioning a witness

The prosecution's theory at trial was that Kahler shot the victims with a .223
caliber rifle or "long gun." Shell casings found at the scene and bullets found in a clip
near where Kahler was arrested were .223 caliber. The gun used in the murders, however,
was never found. During testimony, a Shawnee County deputy testified that she was
asked to look for a "long gun" in Kahler's impounded vehicle as part of the investigation.
She testified that she was unable to find a gun but did find an empty box for a Remington
.223. She testified she left the box in the car. The district judge apparently did not think
this testimony was clear, and at the end of the prosecutor's questioning, questioned the
witness himself:

"BY THE COURT: Q. And I will ask this just as a matter of clarification before the
break; you mentioned an empty box Remington .223 caliber, is that correct, caliber?

"A. It was told to me that it was a Remington .223.

"Q. All right. Now when you said that, are you talking about a gun itself, or the bullet, or
caliber of gun?

"A. It was the box for a gun.

"Q. Okay. You don't know whether it was a Remington brand gun or some other brand?

"A. I was told that it was a Remington .223.

23




"THE COURT: Counsel, you want to try to clarify that with her?

"[Prosecutor]: Sure.

. . . .

"[Prosecutor]: Q. You didn't find a weapon in the vehicle, did you?

"A. No.

"Q. You found a box that appeared to be a gun box?

"A. Yes.

"Q. And it listed a caliber of the weapon at the end of it?

"A. Yes.

"Q. And what was the caliber of the gun?

"A. It would have been .223.

"Q. And REM, is that reference to the caliber or the brand of gun?

"A. The brand of gun."

Later testimony clarified that the box was for a long gun and the serial number of
the gun that would have come in that box was registered to Kahler. Kahler maintains the
district judge aided the State in proving its theory that a long gun was used in the crime
and the assistance had the effect of bolstering the State's case and credibility.

24



This court has allowed questioning of witnesses from the bench "based upon the
premise that one of the functions of a trial judge is to accomplish the full development of
the truth." Kemble, 291 Kan. at 114-15 (citing State v. Hays, 256 Kan. 48, 51, 883 P.2d
1093 [1994]). But we have cautioned that the practice must not result in the slightest
suggestion of partiality or bias. Kemble, 291 Kan. at 114-15. For decades, we have
expressed our view that the better practice is for the district judge to discuss the matter
with counsel outside the presence of the jury and ask counsel to pose the questions
necessary to clarify the matter. See State v. Boyd, 222 Kan. 155, 159, 563 P.2d 446
(1977); see also Kemble, 291 Kan. at 115; Hays, 256 Kan. at 52; State v. Hamilton, 240
Kan. 539, 547, 731 P.2d 863 (1987) (quoting Boyd and noting such a procedure will
accomplish the full development of the truth without direct participation by the trial judge
in the examination of the witness and hence any question as to the judge's bias may be
avoided).

Although the better practice would have been for the district judge to follow the
procedure set out in Boyd, we see no misconduct here because there was no suggestion of
partiality. Although Kahler contends that the judge's questioning aided and bolstered the
State's case, it is just as probable that by stepping in to clarify and suggesting to the
prosecutor that he follow up with additional questions, the district judge's comments
reflected negatively on the State's presentation. Kahler does not argue that the questions
asked were improper, and they drew no objection from defense counsel at the time. We
also note that the importance to the State's case regarding the type of gun used was nearly
nonexistent given Kahler's defense was not based on denying the shootings. Ultimately,
the judge did not assume the role of an advocate; he merely attempted to clarify a point
he apparently felt was unclear—a point that was of virtually no importance to the trial.
Consequently, we find no misconduct.


25



E. Sustaining objection to closing comments about voice on tape

We rejected Kahler's argument above that the prosecutor committed prosecutorial
error by objecting to defense counsel's attempt to quote the male voice on the Life Alert
recording. Here we address his argument that the district judge committed misconduct by
sustaining the objection.

The transcript reflects the following:

"[By Defense Counsel]: . . . you're going to hear a male voice during this absolute chaos
say . . .

"[Prosecutor]: Your Honor, I'm going to object. The tape's in evidence. And
counsel's not allowed to testify and tell the jury what he thinks is on that tape.

"[Defense Counsel]: Your Honor, I can say what I think's on that tape. They've
got the tape and if it doesn't say it—counsel just said what all these witnesses said. I'm
certainly allowed to say what the tape says.

"THE COURT: I think it's improper. You cannot say what you think is on the
tape.

"[Defense Counsel]: Well, can I say what is on the tape, Your Honor?

"THE COURT: They can listen for themselves.

"[Defense Counsel]: All right."

Kahler argues the district judge committed misconduct in two ways: first, by
erroneously sustaining the objection and, second, by labeling defense counsel's conduct
"improper."

26



The State maintains that counsel for Kahler was about to misrepresent the
evidence. It argues there was no testimony as to what the male voice on the tape
specifically said. And noting that the voice itself is barely discernible, the State argues
anything counsel would have said in regard to content would not have been based on the
evidence. Accordingly, the State contends the district court was correct to sustain the
objection.

We disagree. The district court sustained the objection in error, if for no other
reason than because it was premature. The record does not contain a proffer of the words
that defense counsel thought were on the tape, so we cannot know for sure whether they
comported with the admitted evidence. But we do know there was more evidence than
the State acknowledges. In addition to the original recording itself, the record includes
Dr. Peterson's report and the transcript contained on the enhanced CD, which indicate
that the voice said, "I am going to kill her." So, if defense counsel was going to state that
the male voice on the tape said "I am going to kill her," it would have been entirely
proper for defense counsel to discuss that statement and any reasonable inferences to be
drawn from it. See State v. Irving, 217 Kan. 735, 739-40, 538 P.2d 670 (1975)
("[a]rgument of counsel is to be confined to the questions at issue and the evidence
relating thereto and such inferences, deductions and analogies as can reasonably be
drawn therefrom."); cf. State v. Bollinger, 302 Kan. 309, 320-22, 352 P.3d 1003 (2015)
(prosecutor's statement, during closing argument, asking jury to draw inferences from
indistinct sound in background of 911 call that subjectively sounded like someone calling
out, "help me," was not an impermissible comment on facts not in evidence, so as to
amount to prosecutorial misconduct), cert. denied 136 S. Ct. 858 (2016); State v.
Schumacher, 298 Kan. 1059, 1070-72, 322 P.3d 1016 (2014) (prosecutor did not
improperly comment on a fact not in evidence when, during closing argument in murder
prosecution, he suggested that clicking sound heard when gun was cocked in courtroom
was the same clicking sound heard on video just prior to defendant's shooting of victim).
27




But an erroneous ruling by the district judge, standing alone, is not grounds for
finding judicial misconduct. Canon 2, Rule 2.2, Comment [3] (2017 Kan. S. Ct. R. 433)
(good-faith errors of fact or law do not violate KCJC). Something more is required. Here,
Kahler argues that the words the district judge used in ruling on the objection denigrated
the defense. But the words used to sustain the objection did not denigrate counsel
personally. The phrase "it's improper" appears to be a reference to the form of the
argument counsel was attempting to use. These are the words our opinions frequently use
to characterize argument or conduct of counsel as impermissible. See, e.g., Kleypas, 305
Kan. at 316-17 (discussion with district court indicated prosecutor was making an effort
to find the line between "proper and improper argument" on mercy); Sherman, 305 Kan.
at 101 (noting that this court places the burden on trial courts to set aside verdicts that are
based on "improper arguments"); State v. Marshall, 294 Kan. 850, 861, 281 P.3d 1112
(2012) ("[A] prosecutor's improper comment or argument can be prejudicial, even if the
misconduct was extemporaneous and made under the stress of rebutting arguments made
by defense counsel." [Emphasis added.]); State v. Pabst, 268 Kan. 501, 506, 996 P.2d
321 (2000) ("Our rules of conduct clearly and unequivocally say that it is improper for a
lawyer to comment on a witness' credibility."); Irving, 217 Kan. at 740 ("It is improper
for counsel in his argument to the jury to comment on evidence which was excluded by
the court when offered.").

Granted, when we issue an opinion we are not speaking within earshot of the jury.
But we believe juries can be expected to understand that objections will be made and
ruled upon in terms of what is proper and what is or is not allowed without assuming
nefarious purposes by counsel, at least not those beyond normal trial advocacy. We
cannot fault the district judge for framing his ruling—although erroneous—in commonly
used terms.

28



Accordingly, we find no judicial misconduct. We do, however, find that the
district court's sustaining of the State's objection was an unassigned trial error. See K.S.A.
2016 Supp. 21-6619(b) (in death penalty appeal, court is authorized to notice unassigned
errors). Given the record and the arguments before us, we do not find this error requires
reversal standing alone.

F. Discouraging the jury from asking questions during deliberations

For his final allegation of judicial misconduct, Kahler alleges that, before sending
the jurors to deliberate at the end of the guilt phase, the district judge discouraged them
from asking any questions they might have during deliberations. The particular remarks
Kahler complains of concerned what the jurors should do in the event they had questions.
The judge stated:

"The bailiff will be outside the door here and if you have any questions you can
knock on the door and communicate with her.

"Now I have given you the instructions[,] that's the law of the case. Counsel has
presented the evidence, the facts of the case. You should apply the law to the facts. You
have everything you need to decide this case. You should review the instructions for the
answers to any questions you might have. You should not have to ask any questions.
However, if you have a question there is a process that we must go through and you
should be aware of that process. You can't just ask the bailiff to tell me your question so
that I can run back there and give you an answer.

"The process that we must follow requires that any question that you might ask
be in writing. And the presiding juror must prepare that question in writing, hand it to the
bailiff, and I must then assemble counsel and the defendant and we must discuss the
question to decide whether we are able to give you an answer and, if so, what that answer
should be. My experience as a Judge has been that although sometimes we are able to
29



give jurors answers, for the most part the answer you're going to receive to most
questions will be refer to your instructions for advice." (Emphasis added.)

Kahler focuses on the italicized comments and argues they demonstrated
impatience with the steps necessary to meet the due process and Eighth Amendment
requirements of a capital case. He points to K.S.A. 22-3420(3) to argue the jury had a
right to ask questions. At the time of trial, K.S.A. 22-3420(3) provided:

"After the jury has retired for deliberation, if they desire to be informed as to any
part of the law or evidence arising in the case, they may request the officer to conduct
them to the court, where the information on the point of the law shall be given, or the
evidence shall be read or exhibited to them in the presence of the defendant, unless he
voluntarily absents himself, and his counsel and after notice to the prosecuting attorney."

The remarks in this case were both legally and factually accurate; the jury was
informed that questions could be asked; and the process that would be used to answer
them was explained. The comment that the jury should not have to ask any questions, in
context, appears to be a statement that the jury had the necessary information to reach a
decision. The statement was an encouragement to the jurors to review the instructions
before asking a question rather than a discouragement from asking any questions at all.
The statement informed the jurors that most questions would likely be answered by
referring the jury back to the instructions. Nothing in the comments demonstrated bias,
prejudice, or partiality toward either party. We find no misconduct.

G. No cumulative prejudicial effect

As noted above, we have typically required the party asserting judicial misconduct
to show that any misconduct found to exist actually prejudiced that party's substantial
rights. Kahler urges us to apply the constitutional harmless error test set out in Ward, 292
30



Kan. 541 (constitutional error may be declared harmless where party benefiting from
error proves beyond a reasonable doubt that error complained of did not affect the
outcome of the trial in light of the entire record, i.e., proves there is no reasonable
possibility that the error affected the verdict). But having found only one instance of
misconduct that was not reversible standing alone, the cumulative error rule is
inapplicable here.

In the process of reviewing the judicial misconduct claims, we noted some
instances in which the district judge could have applied a better practice to the situation at
hand. Nonetheless, we discern no pattern of conduct that manifested bias, prejudice, or
partiality against the defendant, and Kahler's claim of judicial misconduct fails.

III. EXPERT WITNESS INSTRUCTION

Prior to trial, Kahler requested that the district court give the jury an instruction on
how it may consider the opinion testimony of experts. The State objected and the district
court declined to give the proffered instruction because expert opinion instructions are
not recommended by the criminal Pattern Instructions for Kansas (PIK). See PIK Crim.
3d 52.14 (1995 Supp.), Comment ("The Committee believes that an expert should be
considered as any other witness as set forth in PIK [Crim.] 3d 52.09, Credibility of
Witnesses."). Kahler claims that the district court's ruling was erroneous.

Standard of Review

"For jury instruction issues, the progression of analysis and corresponding
standards of review on appeal are: (1) First, the appellate court should consider the
reviewability of the issue from both jurisdiction and preservation viewpoints, exercising
an unlimited standard of review; (2) next, the court should use an unlimited review to
determine whether the instruction was legally appropriate; (3) then, the court should
determine whether there was sufficient evidence, viewed in the light most favorable to
31



the defendant or the requesting party, that would have supported the instruction; and (4)
finally, if the district court erred, the appellate court must determine whether the error
was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292
Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012)." State v. Plummer,
295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).

Analysis

The requested instruction, based on the Tenth Circuit Court of Appeals Pattern
Criminal Jury Instruction 1.17, reads as follows:

"During the trial you heard the testimony of ________ who expressed opinions
concerning ___________. In some cases, such as this one, scientific, technical, or other
specialized knowledge may assist the jury in understanding the evidence or in
determining a fact in issue. A witness who has knowledge, skill, experience, training or
education, may testify and state an opinion concerning such matters.

"You are not required to accept such an opinion. You should consider opinion
testimony just as you consider other testimony in this trial. Give opinion testimony as
much weight as you think it deserves, considering the education and experience of the
witness, the soundness of the reasons given for the opinion, and other evidence in the
trial."

Although the State objected to the instruction at trial, it concedes on appeal that
the instruction accurately states the law. The PIK Committee, however, continues to
recommend that a separate instruction on expert opinion testimony not be given. See PIK
Crim. 4th 51.170 (2013 Supp.).

The district judge did give the standard instruction on witness testimony, which
states: "It is for you to determine the weight and credit to be given the testimony of each
witness. You have a right to use common knowledge and experience in regard to the
32



matter about which a witness has testified." PIK Crim. 3d 52.09 (1996 Supp.). Neither
party objected to this instruction. The State contends that this instruction adequately
covers the substance of the requested instruction.

This court has frequently emphasized the wisdom of following the PIK Committee
recommendations. See State v. Cox, 297 Kan. 648, 662, 304 P.3d 327 (2013); State v.
Dixon, 289 Kan. 46, 67, 209 P.3d 675 (2009). On the other hand, we have also said that
the failure to use the exact language of a PIK instruction is not fatal. State v. Bernhardt,
304 Kan. 460, 470, 372 P.3d 1161 (2016). Moreover, a district court should not hesitate
to modify or add to pattern instructions where appropriate in a particular case. 304 Kan.
460, Syl. ¶ 1.

In State v. Willis, 240 Kan. 580, 587, 731 P.2d 287 (1987), this court considered
the giving of an expanded instruction on witness credibility. The Willis court concluded
there was no clear error in the giving of the expanded instruction but noted "it would
certainly have been the better practice to give an instruction along the lines of PIK Crim.
2d 52.09." 240 Kan. at 587. The expert witness instruction requested here, although
contained in a separate instruction, was, in effect, an expanded version of the witness
credibility instruction.

Then, in State v. Hunt, 257 Kan. 388, 395, 894 P.2d 178 (1995), this court stated
that it "has continually disapproved the giving of an expanded version of the credibility
instruction," although it had also continually held that to do so was not clearly erroneous.
Later, in State v. Adams, 292 Kan. 151, 159, 254 P.3d 515 (2011), the district judge
provided a witness credibility instruction based on PIK Crim. 3d 52.09 that also included
wording from a civil pattern jury instruction regarding expert witnesses. See PIK Civ. 4th
102.50. The added language, like the language in the federal instruction Kahler requested,
instructed the jury that testimony of experts was to be considered like any other testimony
33



and should receive the same weight and credit as the jury deemed it entitled to when
viewed in connection with all the other facts and circumstances. The defendant alleged
the instruction was erroneous because the district court did not follow the PIK
Committee's recommendation not to give an expert witness instruction in criminal trials.
The Adams court observed:

"The instruction accurately stated the law as it stands in Kansas. The jury should
weigh expert witness testimony in the same manner it weighs all testimony. . . .

"In addition, Adams' jury would not reasonably have been misled by the
instruction. Had the first paragraph of the hybrid stood alone, the jury still would have
been instructed as to how to assess credibility of all witnesses, regardless of expertise."
292 Kan. at 166.

But this case highlights that there is a fundamental difference between an ordinary
witness' testimony as to the facts of a case and an expert's opinion testimony as to what
those facts mean. Indeed, opinion evidence from experts is admissible precisely because
the jurors' common knowledge and experience would not permit them to properly
understand the circumstances of the case. "Where the normal experience and
qualifications of jurors permit them to draw proper conclusions from given facts and
circumstances, expert conclusions or opinions are not necessary." Sterba v. Jay, 249 Kan.
270, Syl. ¶ 6, 816 P.2d 379 (1991). Yet, the general instruction in PIK Crim. 3d 52.09
recites, in part: "You have the right to use common knowledge and experience in regard
to the matter about which a witness has testified." If a witness has been permitted to give
an expert opinion because the subject matter is beyond the common knowledge and
experience of the jurors, how does a juror use his or her nonexistent common knowledge
and experience to assess the expert's testimony?

34



Moreover, an expert witness is permitted to share his or her opinion with the jury
only after the trial judge has reached the legal conclusion that the witness is, indeed, an
expert on the topic about which he or she is going to opine. The regular witness
credibility instruction does not clarify for the jurors that they may reject the expert
opinion even though it has been stamped with the judge's imprimatur. In short, there is
nothing generic about opinion testimony from expert witnesses, and the jury's assessment
of the credibility of that testimony should not be left to the insufficient direction
contained in the generic PIK instruction.

Consequently, the district court erred when it refused to give the defense's
requested instruction on expert witness credibility because the instruction was legally
appropriate and factually supported. But that does not end the discussion; the error is
subject to a harmlessness analysis. In that regard, notwithstanding that the legal substance
of the requested instruction was not adequately covered by the general instructions that
were given, there is no reasonable possibility that the error affected the jury's guilty
verdict. In other words, the error was harmless.

IV. CONSTITUTIONALITY OF K.S.A. 22-3220

For his fourth issue, Kahler contests the constitutionality of K.S.A. 22-3220. The
statute provides:

"It is a defense to a prosecution under any statute that the defendant, as a result of
mental disease or defect, lacked the mental state required as an element of the offense
charged. Mental disease or defect is not otherwise a defense."

At trial, Kahler based his defense on mental disease or defect. He filed a motion
alleging that the statute unconstitutionally deprived him of the ability to assert a defense
35



based on insanity. The district court denied the motion, and the jury was instructed in
accord with the statute. On appeal, Kahler continues to assert his constitutional challenge.

Standard of Review

Whether a statute is constitutional raises a question of law over which this court
exercises unlimited review. State v. Reed, 306 Kan. 899, 903-04, 399 P.3d 865 (2017).

Analysis

Before the enactment of K.S.A. 22-3220, the M'Naghten rule was the proper test
for the defense of insanity in Kansas. See State v. Lamb, 209 Kan. 453, 472, 497 P.2d 275
(1972); State v. Nixon, 32 Kan. 205, Syl. ¶ 1, 4 P. 159 (1884) (adopting rule). The
M'Naghten rule provided that

"the defendant is to be held not criminally responsible (1) where he does not know the
nature and quality of his act, or, in the alternative, (2) where he does not know right from
wrong with respect to that act. Under the 'right and wrong' test of criminal insanity, it
must be proved that at the material time the accused did not know that what he was doing
was contrary to law." State v. Baker, 249 Kan. 431, 450, 819 P.2d 1173 (1991).

But the Kansas legislature abandoned the M'Naghten rule through enactment of K.S.A.
22-3220, which became effective January 1, 1996. The statute adopted what is known as
the "mens rea approach." The mens rea approach allows evidence of mental disease or
defect as it bears on the mental element of a crime but abandons lack of ability to know
right from wrong as a defense. See State v. Jorrick, 269 Kan. 72, 81-83, 4 P.3d 610
(2000). Kahler argues that by doing so the statute violates the Due Process Clause
because it offends a principle of justice so rooted in the traditions and conscience of our
36



people as to be ranked as fundamental. See Patterson v. New York, 432 U.S. 197, 201-02,
97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977).

The same arguments made by Kahler were considered and rejected by this court in
State v. Bethel, 275 Kan. 456, 66 P.3d 840 (2003). The Bethel court conducted a thorough
review of the pertinent decisions of the United States Supreme Court and other states that
had considered the issue. Ultimately, the Bethel court concluded that "K.S.A. 22-3220
does not violate the defendant's right to due process under the United States or Kansas
Constitutions." 275 Kan. at 473; see State v. Searcy, 118 Idaho 632, 798 P.2d 914 (1990)
(finding mens rea approach of state statute did not violate due process); State v. Korell,
213 Mont. 316, 690 P.2d 992 (1984) (same); State v. Herrera, 895 P.2d 359 (Utah 1995)
(same). Kahler relies on Finger v. State, 117 Nev. 548, 569, 27 P.3d 66 (2001), in which
the Nevada Supreme Court held legal insanity is a fundamental principle of the criminal
law of this country. But the Bethel court considered and rejected the reasoning of the
Nevada Supreme Court in Finger, and we adhere to our Bethel decision.

Although Kahler has added no new arguments to those this court considered and
rejected in Bethel, he directs our attention to a written dissent from a denial of certiorari
by three justices in Delling v. Idaho, 568 U.S. 1038, 133 S. Ct. 504, 184 L. Ed. 2d 480
(2012) (Breyer, J., dissenting, joined by Ginsburg and Sotomayor, JJ.). The dissent was
critical of the mens rea approach because it allows conviction of an individual who had
no capacity to know that what he or she was doing was wrong. The dissent would have
granted the petition for certiorari to consider whether Idaho's modification of the insanity
defense is consistent with the Fourteenth Amendment's Due Process Clause. 568 U.S. at
1041 (Breyer, J., dissenting). As part of its discussion, the dissent cited Bethel and noted
that Kansas is one of only four states that have adopted the mens rea approach. While we
are cognizant of the three justices' position, the Delling dissent has no effect on our
Bethel decision.
37




The parties have thoroughly set out the arguments and cases in their briefs.
Nonetheless, Kahler has offered no new reason to reconsider the arguments previously
and thoughtfully rejected by this court. Thus a review of those arguments or of Bethel is
not warranted.

V. LESSER INCLUDED OFFENSE INSTRUCTION ON FELONY MURDER

Kahler did not request an instruction that would have permitted the jury to convict
him of felony murder, as a lesser included offense of capital murder. He claims on appeal
that it was clearly erroneous for the district court to fail to give that lesser included
offense instruction on its own.

Standard of Review

To determine whether the district court's failure to sua sponte give an unrequested
jury instruction was clearly erroneous, the reviewing court must first determine whether
there was any error at all. "To make that determination, the appellate court must consider
whether the subject instruction was legally and factually appropriate, employing an
unlimited review of the entire record." State v. Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d
195 (2012).

Analysis

Kahler's brief was filed after this court's decision in State v. Cheever, 295 Kan.
229, 259, 284 P.3d 1007 (2012), vacated and remanded on other grounds 571 U.S. ____,
134 S. Ct. 596, 187 L. Ed. 2d 519 (2013), held that felony murder was a lesser included
offense of capital murder and, consequently, that an instruction to that effect should be
38



given in a capital case where warranted by the evidence. Although no felony murder
instruction was requested or given in Kahler's case, he argued in his opening brief,
pursuant to Cheever, that one was warranted and that it was clear error not to give it.

By the time the State filed its responsive brief, the legislature had amended K.S.A.
2012 Supp. 21-5402, in response to Cheever, to specifically provide that felony murder
was not a lesser included offense of capital murder. See L. 2013, ch. 96, § 2; K.S.A. 2016
Supp. 21-5402(d). While the State raised a number of arguments, it primarily argued that
K.S.A. 2016 Supp. 21-5402(d) applied retroactively by its specific terms to overcome
Kahler's argument. Anticipating Kahler's reply, the State also argued that K.S.A. 2016
Supp. 21-5402(d) was neither unconstitutional under the Ex Post Facto Clause of the
United States Constitution nor precluded by due process under Beck v. Alabama, 447
U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980).

As anticipated, Kahler's reply brief focused on arguments against the
constitutionality of K.S.A. 2016 Supp. 21-5402(d) based on Beck and the Ex Post Facto
Clause. Two months after the reply brief was filed, this court considered and decided the
same arguments in State v. Gleason, 299 Kan. 1127, 1160-61, 329 P.3d 1102 (2014),
rev'd and remanded on other grounds sub nom. Kansas v. Carr, 577 U.S. ____, 136 S.
Ct. 633, 193 L. Ed. 2d 535 (2016).

Gleason concluded:

"K.S.A. 2013 Supp. 21-5402(d), by its express language, applies retroactively,
foreclosing Gleason's claim that the district court erred in refusing Gleason's request for a
felony-murder instruction. Further, the 2013 amendments do not violate Gleason's
constitutional right to due process, as interpreted in Beck, nor does retroactive application
violate the prohibition against ex post facto laws." 299 Kan. at 1160-61.

39



In State v. Carr, 300 Kan. 1, Syl. ¶ 31, 331 P.3d 544 (2014), rev'd and remanded
577 U.S. ___, 136 S. Ct. 633, 193 L. Ed. 2d 535 (2016), this court held the ruling in
Gleason eliminated any need to address the argument that a lesser included offense
instruction for felony murder was supported by the evidence admitted at trial. And,
subsequently in Cheever, 306 Kan. at 770, again considering the same arguments, this
court held "[t]he reasoning of the Gleason and Carr cases applies with equal force and
effect to this case and requires us to conclude that Cheever was not entitled to a felony-
murder lesser included offense instruction. The trial judge did not err when he did not
give one."

Gleason controls this case and dictates the conclusion that the district judge did
not err by failing to give a felony-murder lesser included offense instruction because such
an instruction was not legally appropriate.

VI. LIMITATIONS ON DEFENSE VOIR DIRE

Kahler alleges the district court denied him a fair trial by prohibiting his counsel
from questioning prospective jurors during voir dire about their views on the death
penalty.

Standard of Review/Analytical Framework

The purpose of voir dire is to enable the parties to select jurors who are competent
and without bias, prejudice, or partiality. The nature and scope of voir dire examination is
entrusted to the sound discretion of the trial court; however, appellate tribunals have the
duty to make an independent evaluation of the circumstances of voir dire in determining
whether the district court has taken sufficient measures to ensure the accused is tried by
an impartial jury free from outside influences. State v. Reyna, 290 Kan. 666, 686, 234
40



P.3d 761 (2010); Hayden, 281 Kan. at 128-29; Aikins, 261 Kan. at 365-66. An adequate
voir dire is essential to protect a defendant's right to an impartial jury guaranteed by the
Fifth and Sixth Amendments to the United States Constitution. State v. Robinson, 303
Kan. 11, 135, 363 P.3d 875 (2015), cert. denied 137 S. Ct. 164 (2016).

We will find an abuse of discretion if the trial court has unconstitutionally
restricted a capital defendant's questioning during voir dire. 303 Kan. at 135-36. Mindful
that this is a capital case in which the jury has imposed the death penalty, we have
carefully examined the record of the district court's conduct of voir dire. Simply put, we
find no support for Kahler's argument in the record.

The district judge consistently took the position that Kahler's counsel could not
question prospective jurors about their views on the death penalty in the presence of other
venire members. Clearly, the district judge was concerned that an individual panel
member's comments could prejudice other members and wished to avoid a situation in
which it might become necessary to disqualify an entire panel. But discussions between
counsel and the district judge prior to commencement of trial, along with the written
order covering the conduct of voir dire, made clear that counsel were entitled to question
venire members individually when their in-court answers indicated a need to delve into
matters outside the hearing of the rest of the panel. At oral argument, counsel for Kahler
acknowledged that Kahler's trial counsel was not prevented from making an individual
inquiry of each venire person's death penalty views. In fact, trial counsel never made a
request to question any of the venire members individually. Consequently, while an
absolute prohibition against inquiry in front of the rest of the venire panel might be an
unnecessary precaution against the risk of tainting the entire panel, it was not error here.


41



VII. CUMULATIVE ERROR DURING THE GUILT PHASE

Kahler claims that his guilt phase convictions must be reversed because
cumulative trial errors denied him a fair trial.

Standard of Review/Analytical Framework

"'Cumulative trial errors, when considered collectively, may require reversal of the
defendant's conviction when the totality of circumstances substantially prejudiced the
defendant and denied the defendant a fair trial.'" Kleypas, 305 Kan. at 345. No prejudicial
error may be found under the cumulative error doctrine if the evidence against the
defendant is overwhelming. Dixon, 289 Kan. at 71.

"For errors to have a cumulative effect that transcends the effect of the individual
errors, there must have been more than one individual error. [Citation omitted]." State v.
Cruz, 297 Kan. 1048, 1074, 307 P.3d 199 (2013). We have agreed with Kahler that the
trial judge should not have told the jury, "I normally don't do this," before giving PIK
Crim. 4th 50.070 after opening statements and that the trial judge erred in refusing to give
the expert witness instruction requested by the defense. In the process of our review, we
also noted an erroneous ruling by the district court on an objection the State lodged
during defense counsel's closing argument. In short, there was more than one trial error.

But the touchstone is whether the defendant received a fair trial, not whether he
received a perfect trial. See Cruz, 297 Kan. at 1075 (defendant entitled to fair trial, not a
perfect one). Moreover, we have declined to find reversible error under the cumulative
error rule where "'the evidence is overwhelming against the defendant.'" 297 Kan. at
1074. On the record before us, we are firmly convinced beyond a reasonable doubt that
the guilty verdict would not have changed if the errors had not been committed.

42



We also note that the errors identified during the guilt-phase proceeding are not
the type that we would expect to impact the sentencing determination when the same jury
decides both guilt and sentence. See Cheever, 306 Kan. at 800. Accordingly, we do not
revisit this error in our penalty-phase discussion.

VIII. EIGHTH AMENDMENT CATEGORICAL CHALLENGE TO DEATH PENALTY

The Eighth Amendment to the United States Constitution prohibits the infliction
of "cruel and unusual punishments." Kahler claims that a sentence of death violates that
constitutional right when it is imposed upon a severely mentally ill person.

Although Kahler relies on a motion he filed in the district court as having raised
this issue below, that motion did not set out a categorical proportionality argument based
on mental illness. Nevertheless, this court has held that a categorical proportionality
challenge under the Eighth Amendment may be raised for the first time on appeal. State
v. Ruggles, 297 Kan. 675, 679, 304 P.3d 338 (2013) (analysis does not require review of
district court factual findings; claim presents question of law determinative of case).

Standard of Review/Types of Categorical Challenges

"A categorical proportionality challenge under the Eighth Amendment implicates
questions of law, and this court has unlimited review." State v. Dull, 302 Kan. 32, 40, 351
P.3d 641 (2015).

"The United States Supreme Court identifies three subcategories of categorical
proportionality challenges. The first considers the nature of the offense, such as a
prohibition on capital punishment for nonhomicide crimes against individuals. Graham,
560 U.S. at 60-61 (citing Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d
1140 [1982]). The second considers the characteristics of the offender, such as a
43



categorical rule prohibiting the death penalty for juveniles. Graham, 560 U.S. at 61
(citing Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 [2005]). The
third, which was first recognized in Graham, combines the two because it 'implicates a
particular type of sentence as it applies to an entire class of offenders who have
committed a range of crimes.' 560 U.S. at 61." State v. Williams, 298 Kan. 1075, 1086,
319 P.3d 528 (2014).

Analysis

Kahler's claim fits within the second subcategory of offender characteristics. He
proposes a categorical rule prohibiting the death penalty for offenders who were severely
mentally ill at the time of their crimes.

In analyzing claims under this second category, the United States Supreme Court
employs a two-part test:

"The Court first considers 'objective indicia of society's standards, as expressed in
legislative enactments and state practice' to determine whether there is a national
consensus against the sentencing practice at issue. Roper, [543 U.S.] at 563. Next, guided
by 'the standards elaborated by controlling precedents and by the Court's own
understanding and interpretation of the Eighth Amendment's text, history, meaning, and
purpose,' Kennedy, 554 U.S., at 421, the Court must determine in the exercise of its own
independent judgment whether the punishment in question violates the Constitution.
Roper, [543 U.S.] at 564." Graham v. Florida, 560 U.S. 48, 61, 130 S. Ct. 2011, 176 L.
Ed. 2d 825 (2010).

See Williams, 298 Kan. at 1087 (identifying two-factor test for analyzing categorical
proportionality challenge).

44



We recently considered and rejected a nearly identical argument in Kleypas, 305
Kan. at 328-37. In fact, Kahler's brief is, with the exception of those portions pertaining
directly to Kahler himself, nearly word for word the same brief that was submitted on this
issue in Kleypas.

In Kleypas, we said that the defendant had not shown the kind of legislative
consensus that the Supreme Court relies upon in the first part of its test. Then, in
exercising our independent judgment under the second part of the test, we opined as
follows:

"As to the second-prong of the test, we explained in Williams that 'community
consensus is entitled to great weight but it is not determinative.' 298 Kan. at 1087. And in
State v. Mossman, 294 Kan. 901, 281 P.3d 153 (2012), we observed:

"'In accordance with the constitutional design, "the task of interpreting
the Eighth Amendment remains [the Court's] responsibility." [Citation
omitted.] The judicial exercise of independent judgment requires
consideration of the culpability of the offenders at issue in light of their
crimes and characteristics, along with the severity of the punishment in
question. [Citations omitted.] In this inquiry the Court also considers
whether the challenged sentencing practice serves legitimate penological
goals. [Citations omitted.]' Mossman, 294 Kan. at 929 (quoting Graham,
560 U.S. at 67-68).

"Atkins and Roper both identify retribution and deterrence as the 'legitimate
penological goals' served by the imposition of the death penalty on those who commit the
worst crimes. See Roper, 543 U.S. at 571; Atkins, 536 U.S. at 319. Both conclude that the
characteristics of juveniles and the mentally retarded, respectively, make offenders in
those categories less culpable than the 'average murderer.' Atkins, 536 U.S. at 319. And
being less culpable and less amenable to deterrence, the death penalty is inappropriate for
their crimes.
45




"In support of his argument, Kleypas simply states '[t]he culpability of the
severely mentally ill is diminished in the same manner as juveniles and the mentally
retarded.' He cites language quoted from the ABA recommendation report to illustrate
that some severe disorders result in hallucinations or delusions. But the ABA report itself
recognizes that diagnosis alone is not a sensible basis for the exemption and,
consequently, a case-by-case determination will be required. The report recognizes that
Atkins left the definition of 'mental retardation' to the states. See 536 U.S. at 317. The
report continues:

"'Atkins held the death penalty excessive for every person with mental
retardation, and the Supreme Court therefore dispensed with a case-by-
case assessment of responsibility. However, for the disorders covered by
this . . . part of the Recommendation, preclusion of a death sentence
based on diagnosis alone would not be sensible, because the symptoms
of these disorders are much more variable than those associated with
retardation or the other disabilities covered by the Recommendation's
first paragraph.' ABA Recommendation Number 122A at 671.

"In contrast, in Roper, the United States Supreme Court noted that '[t]he
differences between juvenile and adult offenders are too marked and well understood to
risk allowing a youthful person to receive the death penalty despite insufficient
culpability.' 543 U.S. at 572-73. And in Atkins, the Court noted that clinical definitions of
mental retardation shared common features which ultimately bore on the determination of
culpability. See 536 U.S. at 317-18.

"Mental illnesses present less discernable common characteristics than age or
mental retardation. Caselaw relating to the implementation of Ford v. Wainwright, 477
U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986), and Panetti v. Quarterman, 551 U.S.
930, 127 S. Ct. 2842, 168 L. Ed. 2d 662 (2007), illustrates the difficulty in defining a
discernable standard relating to mental illness. See Panetti v. Quarterman, 2008 WL
2338498 (W.D. Tex. 2008). As the ABA standard recognizes, case-by-case evaluations
would be necessary; it follows that the level of culpability will vary on a case-by-case
46



basis. While we recognize that some mental illnesses may make a defendant less culpable
and less likely to be deterred by the death penalty, often such illnesses can be treated and
may not manifest in criminal behavior.

"We also note the protections already in place, which protect the incompetent
from trial and the 'insane' from execution. See K.S.A. 2015 Supp. 22-3302 (competency);
Ford, 477 U.S. at 410 (Eighth Amendment prohibits executing those who are 'insane' at
the time the sentence is carried out). In addition, a defendant may present a defense to the
crimes based on a lack of capacity. K.S.A. 2015 Supp. 21-5209. Finally, as Kleypas did
here, mental illness can be asserted as a mitigator. While we recognize a distinction
between disqualification and mitigation, we also recognize that presenting mental illness
as a mitigator allows the jury to consider culpability.

"Given these variables and considerations, in the exercise of our independent
judgment, we reject a categorical prohibition based on the broad classification of mental
illness, even as defined by the ABA standard, in favor of individualized assessments
through the sentencing proceeding. See Graham, 560 U.S. at 58-61. We have confidence
that Kansas juries can weigh a defendant's mental state at the time of the crime as a
mitigating factor for consideration in the decision of whether to return a death penalty
verdict.

"We conclude that Kleypas fails to make the showing necessary under either
prong of the two-part categorical proportionality analysis. We, therefore, deny his Eighth
Amendment categorical proportionality challenge and conclude the Eighth Amendment
does not categorically prohibit the execution of offenders who are severely mentally ill at
the time of their crimes." 305 Kan. at 335-37.

We find this issue controlled by our decision in Kleypas and see no reason to
revisit that holding.


47



IX. CONSTITUTIONALITY OF THE AGGRAVATING CIRCUMSTANCES

Kahler argues the two aggravating circumstances relied upon by the State to
justify the death penalty failed to properly channel the jury's discretion as required by the
federal and state constitutions. He argues that the "killing or creating a great risk of death
to more than one person" factor is duplicative of the elements needed to prove capital
murder. He argues that the "heinous, atrocious, and cruel" factor is vague and duplicative.

Standard of Review

The constitutionality of a statutory aggravating circumstance is a question of law
subject to unlimited review. Gleason, 299 Kan. at 1186 (because challenge to
constitutional validity of aggravating circumstances may require statutory interpretation,
review is unlimited).

Analysis

Kahler acknowledges in his brief that this court has decided the questions raised in
this issue against him. See State v. Scott, 286 Kan. 54, 110, 183 P.3d 801 (2008) (using
the same conduct as element of capital murder and as aggravating factor not
unconstitutional), overruled on other grounds by State v. Dunn, 304 Kan. 773, 375 P.3d
332 (2016); State v. Kleypas, 272 Kan. 894, 1029, 40 P.3d 139 (2001) ("heinous,
atrocious or cruel" aggravating circumstance, as defined and narrowed in sentencing jury
instructions, narrows class of persons who are death eligible in constitutional manner),
overruled on other grounds by Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L.
Ed. 2d 429 (2006). Kahler has raised no new arguments nor pointed to any caselaw which
would provide a basis for reconsideration of those decisions, and we decline to do so.


48



X. SUFFICIENCY OF THE EVIDENCE OF AN AGGRAVATING CIRCUMSTANCE

For his final issue, Kahler argues there was insufficient evidence to support the
jury's finding of the second aggravating factor argued by the State, i.e., that the crime was
committed in an especially heinous, atrocious, or cruel manner.

Standard of Review

The standard of review of the sufficiency of the evidence to support an
aggravating circumstance was set out by this court in Kleypas, 272 Kan. at 1019, to-wit:

"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."

Analysis

At the penalty hearing, the State relied in part on the evidence it had presented at
the guilt phase trial. The State also put the coroner, Dr. Erik Mitchell, back on the stand
to largely repeat his testimony from the guilt phase concerning the bullet wounds suffered
by each of the victims. With respect to each victim, Mitchell described where each bullet
entered the body, how the wound or wounds would have affected the victim's awareness
and her ability to feel pain, and, ultimately, how they would have brought about her
death. He testified that all of the women would have suffered the severe pain of being
shot. He also concluded that all of them retained awareness long enough to know of the
other shootings going on around them and to be cognizant of their own possible
impending death.
49




The jury was instructed in accord with PIK Crim. 3d 56.00-C6 (2008 Supp.), on
the heinous, atrocious, or cruel aggravating circumstance:

"That the defendant committed the crime of capital murder in an especially
heinous, atrocious or cruel manner. As used in this instruction, the following definitions
apply:
• 'heinous' means extremely wicked or shockingly evil;
• 'atrocious' means outrageously wicked and vile; and
• 'cruel' means pitiless or designed to inflict a high degree of
pain, utter indifference to, or enjoyment of the sufferings of others.

"In order to find that the crime of capital murder is committed in an especially
heinous, atrocious, or cruel manner, the jury must find that the perpetrator inflicted
serious mental anguish or serious physical abuse before the victim['s] death. Mental
anguish includes a victim's uncertainty as to her ultimate fate."

We have often held that shooting deaths are not inherently heinous, atrocious, or
cruel. We compiled a number of those cases in State v. Baker, 281 Kan. 997, 1019, 135
P.3d 1098 (2006). See, e.g., State v. Holmes, 278 Kan. 603, 608, 638-39, 102 P.3d 406
(2004) (reversing hard 40 sentence because firing a single shot through the victim's heart
was not especially heinous, atrocious, or cruel); State v. Flournoy, 272 Kan. 784, 794, 36
P.3d 273 (2001) (holding that the defendant's act of shooting the victim five times within
1 minute was not especially heinous, atrocious, or cruel); State v. Cook, 259 Kan. 370,
401-03, 913 P.2d 97 (1996) (reversing hard 40 sentence because the defendant's act of
shooting the victim twice was not especially heinous, atrocious, or cruel); State v. Reed,
256 Kan. 547, 562-63, 886 P.2d 854 (1994) (concluding that shooting the victim in the
head was not especially heinous, atrocious, or cruel and other testimony supporting the
finding amounted to conjecture and speculation).

50



In Baker, we also reviewed a number of cases in which this court had found
shooting deaths to be especially heinous, atrocious, or cruel. 281 Kan. at 1019-20. See,
e.g., State v. Washington, 280 Kan. 565, 571-72, 123 P.3d 1265 (2005) (shooting deaths
were especially heinous, atrocious, or cruel when the victims attempted to flee after being
shot and the defendants pursued the victims, continuing to shoot until the victims died);
State v. Perry, 266 Kan. 224, 234, 968 P.2d 674 (1998) (defendant waved gun in front of
his victims before shooting them and forced one of the victims to watch the defendant
shoot her sister); State v. Brady, 261 Kan. 109, 123-24, 929 P.2d 132 (1996) (defendant
forced two shooting victims to lie face down on floor with their heads close together
while he paced around room for about 15 minutes holding a gun, then shot first victim in
the head while second victim watched, then shot second victim in the head). We
concluded in Baker that the "common thread" running between those cases in which we
held a shooting death had been especially heinous, atrocious, or cruel was evidence of the
infliction of mental anguish upon the victim prior to death. 281 Kan. at 1020.

A more recent case is factually similar to this case. In State v. Hayes, 299 Kan.
861, 327 P.3d 414 (2014), defendant Terry Ray Hayes was married to Tiffani Hayes for a
little over a year. In April 2010, Tiffani moved out, and shortly afterward, Hayes filed for
a divorce. He experienced depression and suicidal ideations following the breakup. There
was evidence that Hayes continually contacted Tiffani electronically, at work and
elsewhere, that he accused her of infidelity, and that he had told others he would kill her.
On the day of the murder, Hayes lured Tiffani to his home by telling her he had some of
her property that she needed to pick up. Tiffani arrived with a friend and approached
Hayes who was in the driveway. The friend witnessed Hayes confront Tiffani, heard
Tiffani scream, and then saw Tiffani being chased down as she tried to escape from
Hayes who had a gun. Hayes shot Tiffani in the back of the head when he caught up to
her. In summing up the evidence supporting the aggravator, this court said there was
"evidence that Hayes had threatened Tiffani in the past, that he lured her to his residence
51



in order to kill her, and that he killed Tiffani as she tried to run away from him." 299
Kan. at 868.

Here, there was evidence that Kahler engaged in similar electronic stalking in
which he sent emails to Karen, to Karen's lover, and to others. There was evidence
Kahler was severely depressed and was obsessed with Karen's leaving. There was also
evidence of a prior physical threat to Karen. Karen had previously had Kahler arrested for
battering her, and she was aware of his obsessive behavior. In Hayes, the district court
relied on similar evidence to establish that Tiffani had reason to fear Hayes and, as a
result, suffered mental anguish at the time of her death. As in Hayes, it is reasonable to
conclude that Kahler's prior behavior contributed to Karen's mental anguish when he
walked into Wight's kitchen with a gun and shot her.

In addition to the evidence above, there is clear evidence from the Life Alert
recording that Kahler methodically went through the house shooting each of the women
in turn. The coroner's testimony established that the bullet wounds to each of the victims
were not immediately fatal and would have left each victim conscious long enough to
suffer the physical pain of her injuries in addition to the mental anguish of her impending
death. The evidence clearly established that Wight and Lauren were aware of others
being shot before them and lived long enough to suffer seriously from their own wounds
and to fear for their own lives. The Life Alert recording established beyond question that
Lauren suffered severe mental anguish as her father went through the house shooting her
family members as she lay mortally wounded fearing for her own life. Viewing this
evidence in the light most favorable to the prosecution, we easily conclude that a rational
factfinder could have found beyond a reasonable doubt that Kahler committed the
murders in an especially heinous, atrocious, or cruel manner.

52



We applied the same standard of review in Gleason, where we recognized our
"independent duty to consider the sufficiency of the evidence to support the jury's
findings on aggravating circumstances." 299 Kan. at 1189 (citing K.S.A. 2013 Supp. 21-
6619[c][2], which provides this court "shall determine . . . whether the evidence supports
the findings that an aggravating circumstance or circumstances existed").

Kahler does not contest the jury's finding that Kahler killed or created a great risk
of death to more than one person. But under our independent duty to determine "whether
the evidence supports the findings that an aggravating circumstance or circumstances
existed," see K.S.A. 2016 Supp. 21-6619(c)(2), we have no problem determining that the
evidence was sufficient to support this aggravating circumstance. With our determination
above that sufficient evidence supported the heinous, atrocious, or cruel aggravating
circumstance, we now must determine whether the evidence supports the finding that
"mitigating circumstances were insufficient to outweigh the aggravating circumstances."
K.S.A. 2016 Supp. 21-6619(c)(2). Again, we have no difficulty in determining that the
jury's weighing determination and sentencing verdict were supported by the evidence.

CONCLUSION

Kahler's conviction of capital murder under K.S.A. 21-3439(a)(6) and his sentence
of death are affirmed.

ROSEN, J., not participating.
MICHAEL J. MALONE, Senior Judge, assigned.1



1REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 106,981
vice Justice Rosen under the authority vested in the Supreme Court by K.S.A. 20-2616.

53



* * *

BILES, J., concurring in part and dissenting in part: I agree with the majority's
decision to affirm James K. Kahler's convictions and sentences but disagree with one
conclusion reached by the majority. I would not characterize as misconduct the trial
judge's aside that "I normally don't do this" before giving the pattern jury instruction
about remarks of counsel. I think the majority reaches the wrong conclusion and in the
process does a disservice to the trial bench. It slaps a "judicial misconduct" label on what,
at worst, should be an opportunity for a simple "teaching moment" to caution judges
about their banter with juries.

The comment in question came after defense counsel's opening statement. Recall
there were three objections to defense counsel's opening statement with one admonition
to defense counsel being overheard by the jury. And after counsel finished, the district
judge gave an admittedly proper preliminary jury instruction, saying:

"All right. Ladies and gentlemen of the jury, I'm going to read an instruction to you at this
time. I normally don't do this, but I am going to ask that you listen carefully. This is one
of the instructions that will be given to you later but I wish to give it to you now also.
That statement is: Statements, arguments, and remarks of counsel are intended to help
you in understanding the evidence and in applying the law, but they are not evidence. If
any statements are made that are not supported by evidence, they should be disregarded."
(Emphasis added.)

Kahler argues this passing comment about what normally occurs in a typical trial,
along with its proximity to his counsel's opening statement and the State's objections,
shows judicial bias requiring reversal of Kahler's convictions. The majority does not go
that far, but it tags the comment as judicial misconduct. I disagree.

54



When addressing the merits of this alleged judicial misconduct—"I normally don't
do this"—this court must consider the facts and circumstances surrounding the alleged
misconduct to decide whether the remark manifested bias that impaired the trial's
fairness. State v. Hayden, 281 Kan. 112, 116, 130 P.3d 24 (2006). In this case, the trial
judge had a tough job. He was coping with a particularly heinous, high-profile death
penalty case involving a quadruple homicide. Two victims were young girls.

In what was obviously an effort to maintain focus and order, the trial judge
sandwiched both counsel's opening statements between appropriate preliminary pattern
jury instructions. Immediately before the State's opening remarks, the trial judge
instructed jurors to consider only the testimony and exhibits admitted into evidence.
Immediately after the defense's remarks, the trial judge cautioned the jury as recited
above.

It is impossible for me to understand how the defense can cry foul when what the
trial judge advised the jury about included a comment that explained the State and
defense counsel's purpose in giving their openings was to help jurors understand the
evidence and application of the law. Surely, no one would take the State seriously if it
objected that its opening statement was diminished because it was preceded by the judge
telling the jury to consider only the testimony and exhibits—effectively inviting the jury
to disregard what it was about to hear. And the instruction that followed the opening
statements here can objectively be seen as validating the purpose of opening statements,
rather than degrading a particular speaker's integrity.

What we are left with is the trial judge's aside that he "normally" did not give the
later instruction, but wanted the jury to hear it then, and would give it again later. What
would a reasonable person take from this?

55



Indulging the majority's willingness to speculate, one obvious answer arises
because these jurors knew they were hearing an abnormal, highly charged, multiple
murder case in which an individual's life hung in the balance. And given that, they would
have far more readily associated the judge's comment that he did not "normally" give a
particular instruction with the serious business at hand and what was most assuredly on
everyone's minds, i.e., the grisly case being heard. Instead, the majority steadfastly
conjectures that jurors "would" see the remarks "undoubtedly" as targeting the defense in
some critical way. Slip op. at 20-21. That conclusion is too farfetched under the facts and
circumstances presented.

I disagree with the majority's characterization of this remark as judicial
misconduct and error. But I agree if the comment was error, it was harmless beyond a
reasonable doubt.

STEGALL, J., joins the foregoing concurring and dissenting opinion.

* * *

JOHNSON, J., dissenting: I dissent. To effect synergy with the majority, I will
address each of its issues in turn, including those with which I agree, followed by the
unassigned error of unconstitutionally inflicting the cruel and/or unusual punishment of
death.

ISSUE #1: PROSECUTORIAL ERROR

I agree with the majority's holding that it is within the prosecutor's permissible
latitude to object on the ground that the defense's closing argument is about to go beyond
the admitted evidence, even where the objection is based on the prosecutor's erroneous
56



understanding of the law. I disagree, however, with the majority's suggestion that bad
faith or ill will can never play any role in the error analysis. I would submit that a
prosecutor does not have the wide latitude to intentionally seek to lure the trial court into
erroneously excluding permissible defense arguments. Such bad faith conduct,
manifesting ill will, does, indeed, constitute prosecutorial error. But I do not discern that
the prosecutor in this case crossed that line.

ISSUE #2: JUDICIAL MISCONDUCT

I agree with the majority on its assessment of the judge's remarks to the third panel
of venire persons warning against blurting out personal opinions. Although a more
articulate admonition would have included the clarification that panel members could
individually advise the court of their respective personal concerns about the death penalty
outside the presence of the others that omission in this context did not rise to the level of
misconduct.

Likewise, I agree with the majority that it would have been better if the venire
panel had not heard the trial judge ask the defense to pick up the pace. See State v.
Kemble, 291 Kan. 109, 114, 238 P.3d 251 (2010) ("[A] trial judge should be cognizant
that jurors afford the presiding judge a great deal of respect and '"can be easily influenced
by the slightest suggestion coming from the court, whether it be a nod of the head, a
smile, a frown, or a spoken word."' [Citation omitted.]"). But I discern no judicial
misconduct.

Further, I agree with the majority's finding of error regarding the third alleged
incident of judicial misconduct during which the district judge told the jury that he
normally did not give the instruction on counsel's statements not being evidence after the
opening statements. The majority correctly discerns that, in context, the judge's comment
57



brought special attention to the instruction and the jury could have concluded that the
extra instruction was specifically aimed at the credibility of the defense opening
statement.

With respect to the judge's questioning of the deputy, I would concur with the
majority's determination that, although the better practice would have been for the district
judge to ask the prosecutor to seek clarification of the testimony, there was no
misconduct here. The judge's questions did not suggest partiality toward the State.
Indeed, the questioning could be viewed as having cast some doubt on the deputy's
thoroughness or expertise.

The alleged judicial misconduct set forth in II.E. is a corollary to the alleged
prosecutorial error in the first issue. To reiterate, after the prosecutor objected to defense
counsel's stating what the male voice was saying on the Life Alert tape, the district judge
ruled: "I think it's improper. You cannot say what you think is on the tape." Kahler
contends that it was misconduct for the judge to sustain the objection and it was also
misconduct for the judge to state in front of the jury that the defense argument was
improper.

I agree with the majority's assessment that the district court's ruling on the State's
objection during the defense closing argument was legally infirm and constituted an
unassigned trial error. But, as the majority correctly states, Kahler had to show more than
an erroneous ruling on an objection to establish his assigned error of judicial misconduct.
He did not do so here, even with the judge's use of the word "improper" to describe the
legal status of the argument.

Kahler's complaint about the judge's remarks concerning jury questions during
deliberations is similarly miscast as judicial misconduct. Even if the judge's comments
58



were erroneous, Kahler does not explain how discouraging jury questions would
inevitably result in bias, prejudice, or partiality that was adverse to the defense. One can
imagine that a jury could have some questions which, if left unresolved, would prejudice
the State. Consequently, although I view the judge's remarks to be ill-advised and
erroneous, especially in a death penalty case, I cannot say they rise to the level of being
misconduct.

In sum, I concur with the majority that the record does not support the defendant's
claim that the district judge engaged in a pattern of conduct that manifested bias,
prejudice, or partiality against the defense. But defendant's arguments on this issue point
out two unassigned errors, i.e., the district court erroneously sustained the State's
objection during the defense closing argument, and the district court erroneously
discouraged the jury from exercising its right, after retiring for deliberations, "to be
informed as to any part of the law or evidence arising in the case." K.S.A. 22-3420(3).

Individually, the judge's erroneous instruction following defense counsel's opening
statement and the two unidentified errors would not have changed the jury's guilty
verdict. I discuss their cumulative prejudicial effect in Issue #7.

ISSUE #3: REQUESTED INSTRUCTION ON EXPERT WITNESSES

I agree with the majority that the district court erred in refusing to give the
requested instruction on expert witness credibility, but that the error standing alone did
not affect the jury's guilt-phase verdict.


59



ISSUE #4: CONSTITUTIONALITY OF K.S.A. 22-3220

In rejecting Kahler's constitutional challenge to this state's elimination of the
insanity defense, in favor of a mens rea approach, the majority leans heavily on its
assessment that Kahler adds nothing new to the arguments that were rejected in State v.
Bethel, 275 Kan. 456, 66 P.3d 840 (2003). While stare decisis is a valid tack, the majority
conveniently overlooks a significant distinction between this case and Bethel. Although
Bethel was convicted of capital murder, the death penalty was not involved. "Pursuant to
an agreement of the parties, Bethel waived his right to a jury trial, the case was tried to
the bench on stipulated facts, and the State did not pursue the death penalty." 275 Kan. at
457.
Recently, we acknowledged that this court is supposed to employ a higher degree
of scrutiny in a death penalty case. We stated:

"This court has, in several cases, noted that issues in a death penalty review are
subject to a heightened reliability standard. See, e.g., Carr, 300 Kan. at 284 (recognizing
need for heightened reliability); State v. Scott, 286 Kan. 54, 76, 183 P.3d 801 (2008)
(same); State v. Green, 283 Kan. 531, 545, 153 P.3d 1216 (2007) ('[I]n the context of a
capital sentence, this court has required a heightened degree of reliability.'); Marsh, 278
Kan. at 525 ('[T]here is a heightened scrutiny of trial proceedings in a capital case.');
Kleypas I, 272 Kan. at 1036 (observing 'heightened reliability requirements' apply to
capital sentencing under federal and state constitutions).

"A sentence of death is different from any other punishment, and accordingly
there is an increased need for reliability in the determination that death is the appropriate
sentence. See Beck, 447 U.S. at 637-38 (recognizing that a death sentence is a '"different
kind of punishment from any other which may be imposed in this country . . . in both its
severity and its finality"' [quoting Gardner v. Florida, 430 U.S. 349, 357-58, 97 S. Ct.
1197, 51 L. Ed. 2d 393 (1977)]; court has duty to set aside procedures that undermine the
60



reliability of the jury's determination)." State v. Kleypas, 305 Kan. 224, 274-75, 382 P.3d
373 (2016), cert. denied 137 S. Ct. 1381 (2017).

At the very least, this court has the obligation to independently analyze whether
the procedure of replacing the insanity defense with the mens rea approach undermines
the reliability of the jury's determination to impose the death penalty. One might question
whether a juror would be as likely to vote to kill a defendant who did not know that his or
her murderous act was wrong.

ISSUE # 5: LESSER INCLUDED OFFENSE INSTRUCTION ON FELONY MURDER

The majority follows recent precedent to opine that the legislature retroactively
eliminated felony murder as a lesser included offense of capital murder. One can
certainly make a logical argument for the proposition that eliminating felony murder as a
lesser offense of capital murder effectively changes the definition of the crime of capital
murder, and, although the legislature is entitled to change the definition of a crime, it
cannot redefine the crime after it is committed. Nevertheless, that is the settled law in this
state now.

ISSUE #6: LIMITATIONS ON DEFENSE VOIR DIRE

I have no quibble with the majority's holding that the district court did not
impermissibly limit the defense's voir dire of the jury panels given the record before the
court and defense counsel's failure to conduct individual voir dire of venire members.




61



ISSUE #7: CUMULATIVE ERROR DURING THE GUILT PHASE

I discern that the following judicial acts constitute multiple guilt-phase trial errors,
to-wit: (1) Giving the jury instruction after opening statements with accompanying
remarks about it being unusual; (2) sustaining the State's objection during the defense
closing argument, thereby precluding argument on the admitted Life Alert tape recording;
(3) discouraging the jury from submitting questions during its deliberations; and (4)
refusing to give the legally appropriate and factually supported expert witness instruction
proffered by the defense.

Notwithstanding the existence of more than one error, I would not hold that their
collective effect requires reversal of the guilty verdict. But I strongly disagree with the
majority's determination that the guilt-phase errors can be ignored when considering the
same jury's penalty-phase decision. Our heightened reliability obligation mandates that
we not approve a sentence of death that is obtained through erroneous procedures. I
would hold that the errors made in this case undermined the reliability of the jury's death
sentence, and I would require that it be vacated and remanded for a new sentencing trial.
A death sentence that fails the unreliable procedures test cannot pass constitutional
muster, even if the majority believes that a subsequent trial would yield the same result.

ISSUE #8: EIGHTH AMENDMENT CATEGORICAL CHALLENGE TO DEATH PENALTY

The majority relies exclusively on Kleypas, 305 Kan. 224, to reject Kahler's
argument that it is cruel and unusual punishment under the Eighth Amendment to the
United States Constitution for the State to kill a person who was severely mentally ill at
the time of the capital murder. I did not specifically address this issue in my Kleypas
dissent, but I do so now.

62



Fifteen years ago, in Atkins v. Virginia, 536 U.S. 304, 321, 122 S. Ct. 2242, 153 L.
Ed. 2d 335 (2002), the United States Supreme Court construed and applied the Eighth
Amendment "in the light of our 'evolving standards of decency,'" and concluded that
imposing the death penalty on a mentally retarded offender was excessive and "that the
Constitution 'places a substantive restriction on the State's power to take the life' of a
mentally retarded offender." While recognizing that a preferred label is intellectual
disability, see Hall v. Florida, 572 U.S. ____, 134 S. Ct. 1986, 1990, 188 L. Ed. 2d 1007
(2014), in K.S.A. 2016 Supp. 21-6622, for clarity I will use the terms employed in Atkins
and Kleypas, i.e., mental retardation and mentally retarded.

Part of the rationale for Atkins' holding was that the Court seriously doubted that
either of the two justifications for the death penalty that it had recognized—retribution
and deterrence—could be applied to mentally retarded offenders. 536 U.S. at 318-19
(citing Gregg v. Georgia, 428 U.S. 153, 183, 96 S. Ct. 2909, 49 L. Ed. 2d 859 [1976]
[joint opinion of Stewart, Powell, and Stevens, JJ.]). The Court opined that "[u]nless the
imposition of the death penalty on a mentally retarded person 'measurably contributes to
one or both of these goals, it "is nothing more than the purposeless and needless
imposition of pain and suffering," and hence an unconstitutional punishment.'" Atkins,
536 U.S. at 319; cf. State v. Robinson, 303 Kan. 11, 355-56, 363 P.3d 875 (2015)
(Johnson, J., dissenting) (citing Glossip v. Goss, 576 U.S. ___, 135 S. Ct. 2726, 2764-68,
192 L. Ed. 2d 761 [2015] [Breyer, J., dissenting] "'the death penalty's penological
rationale in fact rests almost exclusively upon a belief in its tendency to deter and upon
its ability to satisfy a community's interest in retribution'"; if death penalty fails to reach
the goals of deterrence or retribution, it is unconstitutional punishment), cert. denied 137
S. Ct. 164 (2016).

63



In reaching its conclusion that it was "not persuaded that the execution of mentally
retarded criminals will measurably advance the deterrent or the retributive purpose of the
death penalty," Atkins, 536 U.S. at 321, the Court engaged in the following analysis:

"With respect to retribution—the interest in seeing that the offender gets his 'just
deserts'—the severity of the appropriate punishment necessarily depends on the
culpability of the offender. Since Gregg, our jurisprudence has consistently confined the
imposition of the death penalty to a narrow category of the most serious crimes. For
example, in Godfrey v. Georgia, 446 U.S. 420 (1980), we set aside a death sentence
because the petitioner's crimes did not reflect 'a consciousness materially more
"depraved" than that of any person guilty of murder.' Id., at 433. If the culpability of the
average murderer is insufficient to justify the most extreme sanction available to the
State, the lesser culpability of the mentally retarded offender surely does not merit that
form of retribution. Thus, pursuant to our narrowing jurisprudence, which seeks to ensure
that only the most deserving of execution are put to death, an exclusion for the mentally
retarded is appropriate.

"With respect to deterrence—the interest in preventing capital crimes by
prospective offenders—'it seems likely that "capital punishment can serve as a deterrent
only when murder is the result of premeditation and deliberation,"' Enmund, 458 U.S., at
799. Exempting the mentally retarded from that punishment will not affect the 'cold
calculus that precedes the decision' of other potential murderers. Gregg, 428 U.S., at 186.
Indeed, that sort of calculus is at the opposite end of the spectrum from behavior of
mentally retarded offenders. The theory of deterrence in capital sentencing is predicated
upon the notion that the increased severity of the punishment will inhibit criminal actors
from carrying out murderous conduct. Yet it is the same cognitive and behavioral
impairments that make these defendants less morally culpable—for example, the
diminished ability to understand and process information, to learn from experience, to
engage in logical reasoning, or to control impulses—that also make it less likely that they
can process the information of the possibility of execution as a penalty and, as a result,
control their conduct based upon that information. Nor will exempting the mentally
retarded from execution lessen the deterrent effect of the death penalty with respect to
64



offenders who are not mentally retarded. Such individuals are unprotected by the
exemption and will continue to face the threat of execution. Thus, executing the mentally
retarded will not measurably further the goal of deterrence." 536 U.S. at 319-20.

The Kleypas majority "recognize[d] that some mental illnesses may make a
defendant less culpable and less likely to be deterred by the death penalty." 305 Kan. at
336. Notwithstanding the self-serving equivocation in that recognition, it nevertheless
points out the logical fallacy in categorically protecting the mentally retarded but not the
severely mentally ill. Atkins spoke about mentally retarded offenders being less morally
culpable because of their "diminished ability to understand and process information, to
learn from experience, to engage in logical reasoning, or to control impulses," as well as
not being amenable to deterrence. 536 U.S. at 320. I fail to grasp how a severely mentally
ill person possessing those same characteristics is not in the same less-morally-culpable
category as the mentally retarded offender. If a person is incapable of understanding the
nature and quality of their murderous act and/or did not know that the act was wrong,
does it matter whether the cause of the cognitive deficiency is labeled mental retardation
or chronic mental illness? The point is that, when executing a severely mentally ill person
will not "measurably advance the deterrent or the retributive purpose of the death
penalty," it becomes "nothing more than the purposeless and needless imposition of pain
and suffering." 536 U.S. at 319, 321.

Kleypas strained to distinguish severe mental illness by declaring that the
condition presents "less discernable common characteristics than age or mental
retardation." 305 Kan. at 336. The apparent suggestion was that the courts might have to
work more diligently to identify which mentally ill persons are less culpable. That
argument is unpersuasive, if for no other reason than the notion that a person's life—even
a murderer's life—should not be taken away without this court's heightened scrutiny,
even if that takes more effort.
65




But, more importantly, I do not accept the premise. This state has decades of
jurisprudence applying the M'Naghten rule. Determining whether a person was so
severely mentally ill at the time of the crime as to render him or her less culpable is not
much of a leap from that former knowing-right-from-wrong jurisprudence. Likewise, the
argument falters when one considers that intellectual disability in this state is not
determined through a mathematical calculation, but rather the condition requires a case-
by-case determination as well. See State v. Corbin, 305 Kan. 619, 620, 386 P.3d 513
(2016) (remanding for district court findings on matters beyond standardized intelligence
tests).

Moreover, I must confess to being baffled by the point Kleypas attempted to make
by stating that "often such [mental] illnesses can be treated and may not manifest in
criminal behavior." 305 Kan. at 336. If the suggestion is that mental retardation and being
underage always manifests in criminal behavior, that would, of course, be ludicrous. The
fact that not all mentally ill persons engage in criminal activity is no more compelling
than the fact that not all mentally retarded persons are criminals. Moreover, if the
statement means to suggest that mentally retarded persons can never receive training that
will permit them to peacefully exist in society, that, too, would be wrong-headed.

Finally, Kleypas' rationale that the problem of executing severely mentally ill
persons is ameliorated because mental illness can be presented to the jury as a mitigator
does not pass cursory consideration. Would telling a juror that the defendant suffers from
a severe mental illness that resulted in him or her killing people without knowing it was
wrong, suggesting that the defendant will always be a danger to society, make the juror
more, or less, likely to vote for death? If it is morally and legally wrong to execute a
person who is no more culpable than Atkins' "average murderer," the decision to do so
should not be left in the emotionally charged hands of the jury.
66



ISSUE #9: CONSTITUTIONALITY OF TWO AGGRAVATING FACTORS

I concur with the majority's determination that the issues raised here were
previously decided adversely to Kahler, and I see no reason to attempt to avoid the
doctrine of stare decisis today.

ISSUE #10: SUFFICIENCY OF THE EVIDENCE OF AGGRAVATING CIRCUMSTANCE

I would agree with the majority's assessment that this case presents an exception to
the general proposition that shooting deaths are not inherently heinous, atrocious, or
cruel. A person who stalks and systematically shoots his wife and daughters, one after the
other, whereupon each remains aware of her own impending death and the deaths of her
relatives has committed capital murder in a heinous, atrocious, and cruel manner.

OTHER UNASSIGNED ERRORS

Kahler does not challenge the constitutionality of Kansas' death penalty law under
our State Constitution. See Kan. Const. Bill of Rights, § 9 (prohibiting "cruel or unusual
punishment"). But as noted above, we can—and should—consider unassigned errors that
impact on fairness and justice. In Robinson, 303 Kan. at 351-57, I expressed my view that
the death penalty violates the prohibition against cruel or unusual punishment in our State
Constitution. I relied heavily on Justice Breyer's dissent in Glossip, 135 S. Ct. at 2755-77,
which I summarized as follows:

"The Glossip dissent opined that in 1976, when the United States Supreme Court
upheld the death penalty, 'the Court thought that the constitutional infirmities in the death
penalty could be healed,' and it 'delegated significant responsibility to the States to
develop procedures that would protect against those constitutional problems.' 135 S. Ct.
at 2755 (Breyer, J., dissenting). But '[a]lmost 40 years of studies, surveys, and experience
67



strongly indicate . . . that this effort has failed.' 135 S. Ct. at 2755 (Breyer, J., dissenting).
The dissent related that the current administration of the death penalty 'involves three
fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in
application, and (3) unconscionably long delays that undermine the death penalty's
penological purpose.' 135 S. Ct. at 2755-56 (Breyer, J., dissenting). Moreover, the dissent
noted that, perhaps as a result of these constitutional defects in the death penalty, 'most
places within the United States have abandoned its use,' which makes the penalty
'unusual.' 135 S. Ct. at 2756 (Breyer, J., dissenting)." Robinson, 303 Kan. at 351-52
(Johnson, J., dissenting).

The only thing I would add here is the obvious observation that a part of what
makes the death penalty unfair and unjust is that the degree of certainty that a jury must
possess to vote for the death penalty does not match the finality of the punishment, once
executed. A jury can convict a person of capital murder without being certain that the
person is guilty. Indeed, prosecutors frequently argue to juries that the beyond a
reasonable doubt standard of proof does not mean beyond all doubt. Then, in the
sentencing phase, the same less-than-certain standard is applied to the existence of
aggravating factors, which must then be outweighed by mitigating circumstances. K.S.A.
2016 Supp. 21-6617.

But there is nothing uncertain about the punishment of death. There is no taking
back a completed execution, even if we learn that the jury was hoodwinked by
unscrupulous forensics, sandbagged by unethical prosecutions, or left less than fully
informed by inconceivably incompetent defense counsel. In recent years, death row
inmates have been found to have been wrongfully convicted for a plethora of reasons.
Moreover, after a death sentence is executed, it matters not one whit whether the sentence
was unconstitutionally imposed. For instance, there was no relief for all of the mentally
retarded offenders put to death before the Atkins court announced that it was
unconstitutionally cruel and unusual punishment to do so. Likewise, the 22 juvenile
68



offenders put to death between 1985 and 2003 were not brought back to life by Roper's
epiphany that a state executing its children is categorically unconstitutional. See Roper v.
Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).

In short, when it comes to our death penalty, the scales of justice are not in
equipoise. That is cruel.