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Date: 12-26-2015

Case Style: State Of Kansas v. Robinson

Case Number: 90,196

Judge: Caleb Stegall

Court: SUPREME COURT OF THE STATE OF KANSAS

Plaintiff's Attorney: Steven J. Obermeier, Jacob M. Gontesky, Christopher L. McMullin, Stephen M. Page,
Natalie Chalmers, Kristafer Ailslieger, Derek Schmidt

Defendant's Attorney: Paige A. Nichols, Joseph W. Luby

Description: Robinson was a self-employed, but not entirely successful, entrepreneur. In the 1970s, he formed Hydro-Gro, Inc., a company that produced hydroponic vegetables. In the 1980s, Robinson offered financial consulting services through his company Equi II. His operations were interrupted when he was convicted of a nonperson felony and incarcerated at the Western Missouri Correctional Center in Cameron, Missouri. Following his release in the 1990s until his arrest, Robinson published a mobile homePage 20 trade magazine called Manufactured Modular Home Living through his company Specialty Publications. Robinson lived with his wife Nancy in a three-bedroom modular home in Olathe, inside Santa Barbara Estates預 large mobile home community. Robinson used computers and e-mail extensively and also utilized a cell phone and pager. Nancy began working as the on-site office manager at Santa Barbara Estates in 1997. In the mid-1990s, Robinson acquired roughly 17 acres of property at a secluded Linn County location. He moved a trailer onto the property in July 1998 and installed two phone lines: one for his landline and one for his computer. Though married to Nancy since 1964, Robinson's infidelity was an ongoing issue in their marriage. In 1998, Nancy learned her husband was involved in bondage and discipline, dominance and submission, sadism, and masochism (BDS&M) activities after discovering fetish websites saved in his Internet browser history. Robinson shared stories of his BDS&M liaisons with Carlos Ibarra, a maintenance employee at Santa Barbara Estates, and showed him nude photographs of a girlfriend depicted in BDS&M poses.Robinson's Victims The State's capital murder theory in Counts II and III was that Robinson killed Suzette Trouten and Izabela Lewicka, along with Sheila and Debbie Faith, Beverly Bonner and Lisa Stasi, and that these killings were all connected, constituting parts of a common scheme or course of conduct characterized by: (1) luring women with offers of employment, travel, and other benefits; (2) exploiting them financially, sexually, or otherwise; (3) killing them and disposing of their bodies in a similar manner; and (4) concealing the crimes through acts of deception and fraud. The State alleged RobinsonPage 21 committed other crimes along the way, including the aggravated kidnapping of Trouten, theft of Neufeld's property, first-degree murder of Stasi, and aggravated interference with Stasi's parental custody. 1. Suzette Marie Trouten Suzette Marie Trouten was the youngest of Carolyn and Harry Trouten's five children. She lived near her mother in the Monroe, Michigan, area. The two were extremely close and talked daily, even when Trouten was away. Unbeknownst to her mother, Trouten was active in the BDS&M community. She frequented BDS&M websites and chat rooms, created her own BDS&M web page, and traveled out of state for BDS&M trysts. In the mid-1990s, Trouten met Lore Remington, a Canadian resident who shared Trouten's interest in BDS&M role playing games. Remington trained Trouten as a "slave," the submissive partner in a BDS&M relationship, for these online games, and the two became close friends. Remington introduced Trouten to her friend, Tami Taylor, who also lived in Canada, shared an interest in BDS&M, and became another friend. Trouten placed personal ads on BDS&M websites seeking a position as a "slave." At that point, Trouten and Robinson began communicating by e-mail. In summer 1999, Trouten told her mother that Robinson had offered her a job caring for his elderly father, "Papa John." Trouten said Robinson and his father were selling off several companies and Papa John needed nursing care as they traveled to various locations to close the deals. Trouten said the job would pay $60,000 annually and require extensive travel to places such as Switzerland and Belgium.Page 22 In October 1999, Trouten traveled to Kansas City, telling her mother she had an interview with Robinson. When she returned a few days later, Trouten told her mother she did not like the idea of being away from home but had decided to take the job for 1 year to earn enough money to return to school. Trouten took a second trip to Kansas in November, explaining she had to sign an employment contract and find a place to live. Trouten shared the news of her employment opportunity with other friends and family. She told Taylor she would be working for a man named John, who needed someone to care for his elderly father, a wealthy businessman, while they traveled to Europe and other destinations throughout the United States. Trouten told Remington she would earn $6,500 per month and travel to places such as Australia and Hawaii working for Robinson. Trouten gave similar reports to her aunt, father, and employer in Michigan. In late 1999 and early 2000, Trouten prepared for the move to Kansas and her upcoming travels. She researched colleges and other learning opportunities in Switzerland and Belgium, telling her mother that Robinson said they would be overseas long enough for her to take classes. Trouten completed a passport application. Just before Trouten left, her aunt, Marshalla Chidester, helped Trouten create a list of her friends' and family's contact information. On or about February 12, 2000, Trouten left for Kansas, bringing along her two beloved Pekingese dogs, Peka and Harry, in the moving truck Robinson had rented for her. On February 14, Trouten arrived and checked into Room 216 at the Guesthouse Suites in Lenexa. Robinson had reserved this room for 7 nights under his company's name, Specialty Publications. The reservation was later extended for an additional week. When Trouten checked into her room, hotel staff informed her of their no-pet policy. On February 16, Robinson brought two Pekingese dogs, one named Harry and thePage 23 other named Peka, for boarding at Ridgeview Animal Hospital in Olathe. Robinson said the dogs belonged to his employee. In completing check-in paperwork, Robinson indicated the dogs would be boarded through the end of February. Once in Kansas, Trouten called her mother almost every day. Trouten told her mother she had decided to put her belongings in storage, rather than find an apartment immediately, because she and Robinson would be leaving on their trip soon. Trouten also said their itinerary had changed. Rather than travel to Switzerland as originally planned, they had decided to go to California, pick up Robinson's new yacht, and sail to Hawaii first, so Robinson could relax before resuming his meetings. Trouten and Remington continued to communicate daily on ICQ, an instant messaging program on Yahoo. In these conversations, Trouten disclosed that she was in a sexual relationship with Robinson. At trial, Robinson conceded that he and Trouten had carried on a sexual, BDS&M relationship. The fact of this relationship was corroborated by other evidence at trial, including several e-mails in which they discussed BDS&M; a "slave" contract signed by Trouten, purportedly governing the terms of their master/slave relationship; and a videotape of the two engaging in BDS&M sex. The timeline of events on March 1 implicated Robinson in Trouten's disappearance. Around 1 a.m. on March 1, Trouten called her mother at work and said she and Robinson were leaving on their trip later that morning. Carolyn Trouten never saw or spoke to her daughter again. Trouten and Remington were also communicating via ICQ chat early that morning. Remington ended her chat session with Trouten at 12:51 a.m. Remington never saw or spoke to Trouten again.Page 24 At 11:43 a.m., a long-distance call was placed from Robinson's Linn County trailer to Nancy Robinson's work phone. At 2:13 p.m., Robinson picked up Trouten's dogs at the animal clinic in Olathe. Employees said Robinson appeared to be agitated and in a hurry. He told one employee he was in a rush to get to the airport. Robinson placed the dogs in a small kennel and left. Trouten was not seen with Robinson or in his truck at the animal clinic. At 2:24 p.m., Robinson's access code was used to gain entry through the security gates at his Olathe storage unit, and the code was used to exit the facility 6 minutes later. At 2:35 p.m., Olathe animal control officer Rodney E. McClain was dispatched to Santa Barbara Estates after Robinson had instructed the office assistant to report two dogs on the loose. McClain arrived 10 minutes later and saw two Pekingese dogs inside a small-medium-sized carrying kennel located just outside the office. Both appeared to be in good condition. McClain transported them to the local shelter. Trouten never claimed her dogs. Around 3 p.m., Isabel Clark, a housekeeper at the Guesthouse Suites, observed a man matching Robinson's general physical description loading Trouten's belongings from Room 216 into a truck matching the description of Robinson's vehicle in the hotel parking lot. When she cleaned the room, Clark noticed the linens and towels were stained with blood. However, she had observed similar blood stains when she cleaned the room throughout Trouten's stay. Trouten had an irregular menstrual cycle and would bleed heavily. Trouten told Remington that she was experiencing a particularly long and heavy period at the end of February.Page 25 Around 3:30 p.m., a hotel security camera captured Robinson checking out of Trouten's room. Hotel staff confirmed Robinson was the person who checked out of the room and paid the bill. Trouten was not with Robinson at the time, and hotel employees did not see her at all on March 1. A few days after Trouten had supposedly left for California, Carolyn Trouten received a letter from her daughter. Its arrival was somewhat unusual, as Trouten typically called her mother and did not write letters. The letter arrived in a pink envelope postmarked from Kansas City on March 6, 2000. The envelope was addressed to Carolyn Trouten, and the return address said only "Suzette Trouten." The handwritten letter was dated February 28, 2000, and discussed Trouten's plans to leave for California with Robinson. Carolyn Trouten believed the handwriting on the envelope and letter was her daughter's. However, she found it unusual the envelope was postmarked Kansas City on March 6 because Trouten said they were leaving on March 1. Suzette's father, who lived in Florida, received a similar handwritten letter dated February 28, 2000, in an envelope postmarked Kansas City on March 6, 2000. Suspicious of the postmark date, Carolyn Trouten called Robinson, who said Trouten had decided not to take the job. Robinson claimed she had met a man named Jim Turner and left town with him. Jim Turner was one of Robinson's aliases. A few weeks after receiving the first handwritten letter, Carolyn Trouten received a second letter purportedly written by her daughter in an envelope postmarked from San Jose, California. This time, the letter was typewritten with Trouten's name signed in cursive at the bottom. Trouten's mother believed the signature was Trouten's. The letter opened with the statement: "Well, I'm off on an adventure of a lifetime." Carolyn Trouten was convinced Trouten did not draft the letter because the language, style, wording, and typewritten format were wholly inconsistent with her daughter's writing.Page 26 Just before her April 9 birthday, Trouten's grandmother received a birthday card purportedly written by Trouten. The card was in a green envelope postmarked San Jose, California, on March 27, 2000. Trouten's aunt, Chidester, believed the mailing address on the envelope was written in Trouten's handwriting but that the "S. Trouten" written in the return address section of the envelope was not. Trouten's father also received a similar typewritten letter in an envelope postmarked San Jose, California, March 27, 2000. Unbeknownst to Trouten's family, Robinson had made arrangements in late March 2000 for Jean Glines to mail several letters for him from California. Glines was a former employee of Nancy Robinson, who maintained a long-distance relationship with Robinson by telephone and e-mail after she moved to California in 1997. Robinson asked Glines to mail some letters for him from California as a favor. Glines, who had grown tired of the relationship with Robinson, agreed to mail the letters if Robinson stopped calling her. Glines received a package containing three pastel-colored envelopes from Robinson on March 27. Glines noticed some of the letters were addressed to a person in "Minnesota or Michigan," and there was no return address, only the name "Sue," "Suzette," or the initials "ST." Glines mailed the letters that day from Milpitas, where all mail is sent to and postmarked San Jose, California. Several weeks later, Trouten's family received a number of letters purportedly authored by Trouten in envelopes postmarked Veracruz, Mexico, on May 19, 2000. Trouten's aunt, Chidester, received one of these letters. She believed the address on the envelope was written by Trouten, but the return address was not. The letter was typewritten and dated May 5, 2000. It discussed Trouten's travels and was signed, "Love you, Suzette." Chidester believed Trouten signed the letter, but she was convinced Trouten did not draft it because the punctuation, style, and organization were notPage 27 characteristic of Trouten's writing. Trouten's niece, her grandmother, and her father received similar letters postmarked May 19 from Veracruz, Mexico. Once again, unbeknownst to Trouten's family, Robinson had made arrangements for several letters to be mailed from Mexico in May 2000. Lidia Ponce lived in Veracruz, Mexico. Her son, Carlos Ibarra, was a maintenance employee at Santa Barbara Estates and did side jobs for Robinson. Ponce traveled to Olathe to visit her son at the beginning of May. Robinson asked Ibarra to have his mother mail several letters from a resort when she returned to Mexico. Robinson gave Ibarra several pastel-colored envelopes, which Ibarra gave to his mother. Ponce returned to Mexico around May 10 and mailed the letters from a hotel in Veracruz several days later after writing the sender's initials on the envelopes as Robinson had instructed. At trial, Ponce examined the envelopes Trouten's family had received and said they were consistent with the ones she had mailed from Veracruz and that the writing on the return address appeared to be her own. When law enforcement officers searched Robinson's storage unit in Olathe, they found the contact list that Chidester helped Trouten create before moving to Kansas. This list included the mailing addresses and, for some, birthday information for Trouten's family members. The officers also seized a clear plastic folder containing 42 envelopes preaddressed to members of Trouten's family, along with 31 pieces of pastel-colored stationary with "Love you, Suzette" signed at the bottom. The officers also found over a dozen pastel-colored envelopes with enclosed greeting cards and envelopes inside a plastic Target sack. These envelopes were preaddressed to members of Trouten's family, with "S. Trouten" written in the return address and the individual's birthday written in the upper-right corner where postage is typically placed. There were also several letters with generic greetings such as "Hi, dad" or "Hi, mom" handwritten at the top of stationary, along with a number of blank envelopes, stationary, and greeting cards.Page 28 This was not the first time Robinson had prepared or coordinated deceptive letter writing campaigns. In fall 1997, Robinson met Aleisia Cox through a personal ad she placed in a local magazine. Sometime in 1998, Robinson offered Cox a job traveling with him on business trips to London, Paris, and Australia. Before their scheduled departure, he directed Cox to write letters to her mother and daughter as though she had already arrived at each of these destinations, explaining there would not be time to write family during the trips. Cox complied, crafting letters to her mother and daughter that were written as though she were in Paris, London, and Australia. The trips never materialized, and police found Cox's letters during the search of Robinson's Olathe residence 2 years later. Robinson's concealment of Trouten's disappearance was not limited to written correspondence. On February 25, 2000, Robinson sent Trouten an e-mail message requesting login and password information for all of her e-mail accounts. Trouten provided the information in a reply e-mail. Robinson also had e-mail addresses for a number of Trouten's friends and family members. On the morning of March 2, 2000, the day after Trouten's disappearance, Remington received an e-mail from Trouten's Hotmail account. The body of the message said Trouten and her dogs had left on "the adventure of a lifetime." Remington responded a few minutes later, sharing that she had ended the relationship with her former BDS&M "master." Remington received a reply from Trouten's Hotmail account, referring Remington to a new "master" at "eruditemaster@email.com." Remington contacted this new "master" and began communicating with a man she came to know as Jim Turner. On March 24, 2000, an e-mail from Trouten's Hotmail account was sent to several members of Trouten's family, including her aunt, Chidester; her sister, Kim Padilla; her brother, Michael Trouten; and her father's girlfriend. The message said Trouten hadPage 29 written to her mother, that she had left on her trip, that she would not have online access for some time, and that she would try to stay in touch when possible. Chidester was convinced Trouten did not write the e-mail because the word choices, style, and format were inconsistent with Trouten's writing. Chidester was also convinced Trouten would have called her, rather than sending an e-mail, before leaving on such a trip. When law enforcement officers searched Robinson's Olathe storage unit several weeks later, they found the e-mail addresses for all four recipients attached to the contact list Trouten had prepared with Chidester before moving to Kansas. On April 27, 2000, Robinson, posing as Jim Turner, discussed Trouten's disappearance in an e-mail to Remington, claiming that Trouten had stolen his credit cards and that he had hired a private investigator to look into it. He also asked Remington for information on all of Trouten's previous BDS&M partners. After consulting with law enforcement, Remington provided the requested information via e-mail. Law enforcement officers found a printed copy of this e-mail chain in Robinson's possession during the search of his Olathe storage locker several weeks later. Robinson used e-mail not only to conceal Trouten's disappearance, but also to lure Trouten's friends into new BDS&M relationships. In March 2000, Remington told Taylor she had been communicating with Jim Turner, who she initially believed to be a friend of Trouten's employer, Robinson. Taylor jokingly told Remington to ask Jim Turner whether he had any single friends interested in a BDS&M relationship. Remington did just that, and Robinson, posing as Turner, said Taylor should contact "Tom" at "preipo@usa.net." Remington forwarded the name and e-mail address to Taylor, and Taylor sent "Tom" an e-mail discussing her interest in BDS&M. When law enforcement officers searched Robinson's Olathe residence, they found a note with the "preipo@usa.net" e-Page 30 mail address written on it. On March 17, 2000, Robinson, posing as Tom, responded to Taylor's e-mail, describing himself as a "very aggressive and hard working businessman" and outlining his ground rules for a BDS&M relationship. Taylor and Robinson, posing as "Tom," continued to communicate and discuss BDS&M topics via e-mail. Robinson also began calling Taylor. In one voicemail message, he told her he was changing his "preipo@usa.net" e-mail address to "bdsm@hotmail.com." "Tom" told Taylor that she would be well taken care of if she were his slave. On May 28, 2000, Robinson, posing as "Tom," sent Taylor an e-mail from his new "bdsm" Hotmail account, asking her to visit him in Kansas City. Unlike his earlier e-mails, "Tom" signed this e-mail as "MASTER"葉he same way this name/title appeared in Robinson's other e-mail communications, including Robinson's February 25 e-mail to Trouten and Jim Turner's April 27 e-mail to Remington. Before committing to a visit, Taylor asked "Tom" for a reference from a past slave, and Robinson, still posing as "Tom," told Taylor she could contact one of his former slaves at "slavedancer@hotmail.com." Taylor e-mailed "slavedancer" seeking information about "Tom" as a master. On May 31, Taylor received a response from the "slavedancer" account, in which "Tom" was referred to as "MASTER" throughout. When law enforcement officers searched Robinson's Olathe residence 2 days later, they found a list of e-mail addresses and passwords, including "slavedancer@hotmail.com," written on a sheet of legal paper. They also found e-mails confirming Robinson's registration of the "slavedancer" name on several e-mail servers. Taylor received no further e-mail after Robinson's arrest on June 2.Page 31 2. Izabela Lewicka Izabela Lewicka was born in Poland on April 11, 1978. She moved to West Lafayette, Indiana, with her family at the age of 11. She began studies at Purdue University in fall 1996. She was interested in the arts and was an avid drawer and painter. According to friends, Lewicka also had a strong interest in several alternative lifestyles, including paganism, goth, and BDS&M. In spring 1997, Lewicka told her friend, Jennifer Hayes, that an international book agent in Kansas City had offered her a job doing secretarial work and had commissioned her to illustrate BDS&M manuscripts. Lewicka said she planned to move to the Kansas City area to be with this older, married man, who had also agreed to train her to become a "dominant" in BDS&M relationships. Lewicka told Hayes he wanted her to call him "master" and to maintain strict confidentiality. Lewicka seemed concerned when she inadvertently told Hayes her master was named John. While attending Purdue, Lewicka became friends with Dawn Carter and often used her computer to access the Internet. Lewicka told Carter she had a job opportunity in Kansas City illustrating and editing books. Lewicka said that a man named John, whom she had met online, had a job and apartment for her and that they had plans to travel. Lewicka told her parents she had a summer internship with a publishing company in Kansas City, and if it led to a job, she might stay longer, but she did not rule out the possibility of returning to Purdue for the fall 1997 semester. Lewicka said she would be living at 9280 Metcalf in Overland Park and could be reached by e-mail. On June 8, 1997, Lewicka left for Kansas in her car filled with belongings. Lewicka's friends believed she moved to Kansas both for BDS&M training and work.Page 32 Once in Kansas, Robinson helped Lewicka establish herself. They leased a private mailbox at Mailboxes, Etc., located at 9280 Metcalf in Overland Park葉he same address Lewicka had given her parents. Both Lewicka and Robinson were authorized to access mail at the box. In October 1997, Robinson had his insurance agent write a 2-year auto policy on Lewicka's vehicle, explaining she was an employee. On November 14, Lewicka opened an account at Bank of America, where Robinson also held a business account for Specialty Publications. In February 1998, Robinson contacted Jennifer Boniedot, a property manager for the Deerfield Apartment Complex in Olathe. Robinson said he needed a corporate apartment for employees he would train before they were transferred to positions out of state. In the rental application, Robinson identified himself and Lewicka as the prospective occupants. He told Boniedot that he met Lewicka at a graphics trade show, that she had been abused by her parents, and that he had adopted her. Robinson signed a 1-year rental agreement, from March 1, 1998, to February 28, 1999. Robinson paid rent with a Specialty Publications' check, and Lewicka occupied the apartment through the term of the lease. In January 1999, just before the Deerfield Apartment lease expired, Robinson contacted Julie Brown, a manager for A.J. Lang Property Management, to find an apartment. Robinson said he was in the publication business and needed a corporate apartment for female employees he trained from across the country. Robinson executed a lease for a different apartment in Olathe (Edgebrook Apartment) for a term beginning January 15, 1999, through January 31, 2000. Lewicka occupied the Edgebrook Apartment, and Robinson paid the rent.Page 33 While in Kansas, Lewicka worked for Specialty Publications, handling advertising graphics for Robinson's magazine. In 1998, Robinson told his publishing broker, Karen Scott, he had hired his adopted daughter, Lewicka, as a graphic designer. Lewicka told Pam Sadewhite, who owned a graphic arts company that did work for Robinson, that Robinson was her uncle, but Sadewhite saw them flirting and touching one another in a manner that suggested otherwise. Lewicka often held herself out as Robinson's wife. Lewicka registered for an introductory drafting class at Johnson County Community College under the name Izabela Lewicka-Robinson and told her instructor that she was married to an older man. She also identified herself as Izabela Robinson to employees of several local businesses. Though not married, Lewicka and Robinson did share a BDS&M sexual relationship, as evidenced by a BDS&M "slave" contract signed by Lewicka, along with numerous nude photographs depicting her in BDS&M poses, seized from Robinson's Olathe storage unit. Nancy Robinson learned of her husband's relationship with Lewicka in 1997. She believed the relationship was different from Robinson's other affairs. In the past, when Nancy had learned of an affair, Robinson had ended it immediately. This time, the relationship continued, and Nancy thought Robinson would leave her for Lewicka. However, Lewicka disappeared sometime in late summer or fall 1999. Earlier that summer, Robinson convinced another paramour, Barbara Sandre, to move from Canada to Kansas. On August 18, they executed a lease for an unfurnished duplex at Hunter's Pointe, located on Grant Street in Overland Park (Grant Street Duplex). Sandre needed furnishings for the duplex, and Robinson agreed to provide them. On August 23, Robinson hired a moving company to deliver household items from Lewicka's Edgebrook Apartment to Sandre's Grant Street Duplex. Over the next 2 weeks, Robinson broughtPage 34 additional furnishings, including bedding and pillows, blankets, kitchen utensils, artwork, and hundreds of books. Many of these items were later identified as Lewicka's property. Robinson had also rekindled his relationship with Aleisha Cox earlier in 1999. Later that year, Cox was unemployed and did not have permanent housing, so Robinson invited her to stay at Lewicka's Edgebrook Apartment. Cox testified the apartment was mostly vacant, but there were some boxes containing clothing and household items. Robinson told Cox the girl that had been living there quit her job and ran off with her boyfriend, leaving the clothes behind. Cox took some of the clothing, which was later identified as Lewicka's. Cox declined Robinson's offer to stay at the apartment. In September 1999, with several months remaining on the lease, Robinson delivered September's rent for Lewicka's Edgebrook Apartment and notified the property manager, Brown, that he had vacated the premises. Brown later inspected the unit and found it to be mostly unkempt but noticed the two bedrooms had been cleaned meticulously. Law enforcement officers searched Lewicka's Edgebrook Apartment on October 12, 2000. Detective Sally Lane, a forensic chemist with the Johnson County Crime Lab (JOCO Lab), found hundreds of small, reddish-brown spots on the wall of one bedroom that presumptively tested positive for blood. The blood spots were roughly circular and less than 1 millimeter in diameter. The pattern of stains ran from floor to ceiling and approximately 4 to 5 feet in width, from the middle of the south wall all the way to the east wall, with the highest concentration at waist to chest level. Lane took swabs from a representative sampling of the spots and submitted them to the Kansas City, Missouri, Regional Crime Lab (KCMO Lab) for further analysis, where Detective Frank Booth, a DNA analysist, confirmed the genetic profile from the samples matched Lewicka's DNA.Page 35 Other circumstantial evidence corroborated Lewicka's disappearance in late summer or early fall 1999 and Robinson's involvement. In September, Robinson called his publishing broker, Scott, looking for a new graphic designer. Robinson told Scott that Lewicka had been caught smoking marijuana and deported to Czechoslovakia. On September 1, a $500 check payable to Specialty Publications was drawn on Lewicka's account, leaving an available balance of $1. On September 3, the insurance policy Robinson placed on Lewicka's vehicle lapsed because of nonpayment of premium. After fall 1999, Lewicka was never seen at the local establishments she patronized. During her time in Kansas, she shopped at A. Friendly's bookstore on 25 to 30 occasions. Lewicka stood out to the owner, Robert Meyers, because of her European accent and interest in books about witch trials, horror, vampires, and medicinal plants. Sometime before winter 1999, Lewicka came to A. Friendly's with a man Meyers believed to be Robinson. Lewicka told Meyers she was moving and Robinson would be buying her books after her move. Lewicka shopped there one more time prior to winter 1999, and Meyers never saw her again. As with other victims, family members received suspicious correspondence after Lewicka disappeared. Lewicka's father exchanged 25 to 30 e-mails with his daughter after she moved to Kansas. Lewicka was spirited and fought with her parents for autonomy and control over her life. When Lewicka responded to the e-mails, her tone was consistently abrasive and short, asking her father, "What the hell do you want [?]" and telling him to leave her alone. However, on April 14, 2000, Lewicka's father received a different sort of e-mail from his daughter's account. The message said she and another person had spent the last 2 weeks traveling the countryside in China. Unlike previous e-mails, the tone of this message was respectful and polite. The final series of e-mails Lewicka's father received from his daughter's account said she was traveling to overseas locations.Page 36 3. Lisa Stasi Lisa Stasi, formerly Lisa Elledge, was 18 years old when she began dating Carl Stasi sometime after June 1983. Lisa married Carl in August 1984. She was pregnant at the time. On September 3, 1984, Lisa Stasi gave birth to her first child, Tiffany Lynn, at Truman Medical Center in Kansas City, Missouri. After Tiffany's birth, Stasi's marriage crumbled and Carl reenlisted in the Navy. He reported for duty at Great Lakes Naval Base, outside Chicago, Illinois, in early January 1985. Around the time Stasi began dating Carl, Robinson was looking for a private adoption opportunity for his younger brother, Donald Robinson, and Donald's wife, Helen, who lived in the Chicago area. At a family reunion in 1983, Donald and Helen told Robinson they were pursuing a private adoption. Robinson said he knew an adoption attorney, Doug Wood, and would handle the process for his younger brother. In fall 1984, Robinson told Donald and Helen a baby would be available in October. At Robinson's direction, Donald sent him a $2,500 cashier's check payable to Robinson's business, Equi II, allegedly to cover adoption-related fees. Robinson later said the birth mother had decided not to place the child for adoption. In November 1984, Robinson contacted Karen Gaddis, a social worker at Truman Medical Center, and told her that he and several Johnson County businessmen had developed a program to provide housing, transportation, daycare, and job training for young mothers and their babies. Robinson said he needed referrals of Caucasian women because the program already had African-American participants and needed racial balance. Robinson was looking for a white woman in her teens or early 20s, who had a newborn child, was struggling or disadvantaged, and had no family support or ties. In January 1985, Robinson told Gaddis another organization, Hope House, had referred aPage 37 young lady to his program, and he had placed her at a motel in Kansas. Lisa Stasi's aunt, Karen Moore, testified that she had contacted Hope House and took Stasi to the organization just before January 1, 1985. Family members last saw Stasi and Tiffany in early January 1985. Carl Stasi's sister, Kathy Klingensmith, babysat Tiffany often. On January 8, Stasi dropped Tiffany off at Klingensmith's home and told her she had met a man named John Osborne, who was going to help her get a job and finish her GED. Stasi said she might even get to travel as part of the job training program. Stasi returned to Klingensmith's home to pick up Tiffany on January 9. When she arrived, Stasi said John Osborne had paid for her to stay in a room at the Roadway Inn in Overland Park. At approximately 2 p.m., Stasi called the front desk at the Roadway Inn and gave the hotel receptionist Klingensmith's phone number in case Osborne called. Osborne called Klingensmith's number soon thereafter and got directions to her home. The weather was treacherous because of a strong snowstorm, but Osborne arrived at Klingensmith's home at approximately 3 p.m. Stasi and Tiffany went with Osborne, leaving Stasi's car parked outside Klingensmith's home. Less than 1 hour later, Stasi called Klingensmith to tell her she had arrived safely at the motel. Klingensmith never saw or heard from Stasi or Tiffany again. Stasi never returned for her car. Klingensmith identified Robinson at trial as the man she knew as John Osborne. Around 4:30 p.m., Stasi called her mother-in-law, Betty Stasi, in a panic, crying and hysterical. Stasi said "they" were claiming that Betty Stasi planned to take Tiffany away because Stasi was an unfit mother. Stasi's mother-in-law told her not to believe what "they" were saying because it was not true. Stasi said "they" wanted her to sign four blank sheets of paper. Betty Stasi told her not to sign anything. Stasi said "here they come," and she hung up.Page 38 Betty Stasi never spoke to or saw Stasi or Tiffany again. A few days later, Betty Stasi received a letter purportedly written by Stasi. It was typewritten and signed "Lisa" at the bottom and said Stasi had left town to start a new life with Tiffany. Nancy Robinson testified that in early January 1985, the day of the terrible snowstorm, Robinson brought a baby to their home in Stanley. Robinson said that the baby's name was Tiffany and that he received her through a private adoption for his brother. Robinson called Donald and Helen and told them a baby was available immediately. He said the birth mother had decided against adoption after delivery, but the family did not support her decision, so she left the baby at a shelter and committed suicide. Donald and Helen flew to Kansas City on January 10. Robinson picked them up at the airport in the late afternoon and drove them to the offices of Equi II in Overland Park, where they signed legal paperwork, including a Petition for Adoption. After signing the documents, Donald gave Robinson a $3,000 cashier's check payable to Doug Wood, allegedly for further adoption expenses. Donald and Helen named the baby Heather Tiffany Robinson. They returned to Chicago, along with the baby, the following day. That same morning, Klingensmith called the Roadway Inn and learned Stasi's room had been reserved under a name other than John Osborne. On January 11, Klingensmith filed a missing persons report with the Overland Park Police Department. Robinson's name surfaced early in the investigation. On February 1, 1985, Overland Park detectives interviewed Robinson, who told them he was starting a charitable organization to provide young mothers job training, food, and housing. Robinson admitted he had placed Stasi at the Roadway Inn as part of that program.Page 39 However, he said Stasi had recently come to his office to give him the motel key. Robinson said Stasi thanked him for the assistance and said she had made other arrangements. Robinson claimed that Stasi and Tiffany left with a young Caucasian male in an older model green car. One week later, Robinson provided a similar story to his Missouri Parole and Probation Officer, Steve Haymes. Robinson told Haymes he had placed Stasi at the Roadway Inn, but on January 10, she and Tiffany came to his business with a man named Bill and said they planned to start a new life together in Colorado. To corroborate this story, Robinson paid Cora Holmes $800 in exchange for her false statement to police. At Robinson's direction, Holmes told Overland Park detectives that she had recently babysat Tiffany and learned Stasi had left for Arkansas with a man named Bill Summers. In July 1985, Donald and Helen received a package from Robinson containing final adoption paperwork, including a Petition for Adoption, Decree of Adoption, birth certificate, and other documents. The Petition appeared to be signed by attorney Douglas Wood, who had handled over 100 adoptions in his career. Wood testified that he did not prepare the document, that it deviated from his standard form, and that his signature had been forged. Wood confirmed that he had never represented Robinson or any member of his family in any adoption proceeding nor received payment from Robinson for such legal work. The Decree appeared to contain the signature of attorney Ronald Wood, who had handled only three adoptions in his 23-year career. Ronald Wood testified that he never signed the Decree. He had represented Robinson in other matters, and Robinson had access to other examples of Wood's signature. The Decree also appeared to be signed byPage 40 Judge Michael H. Farley, but Judge Farley testified the decree was fraudulent and his signature had been forged. Both the Petition and Decree appeared to be notarized by Evi Gresham, who had been in a BDS&M relationship with Robinson in the early to mid-1980s, but Gresham had never seen the documents, her name was misspelled, and she was never a notary public. Robinson had directed Gresham to sign numerous blank papers during their relationship. Neither the Petition nor the Decree was found in the district court clerk's official records. After Robinson's arrest in 2000, Donald and Helen began to question the identity of Heather's birth mother. Law enforcement compared Heather's footprints to the known prints of Tiffany and found the prints matched, i.e., Heather Tiffany Robinson was Tiffany, Stasi's biological daughter. 4. Beverly Bonner Beverly Bonner lived in Cameron, Missouri, with her husband, Dr. William Bonner, and their two sons. In 1992 and 1993, Bonner worked as a prison librarian at the Western Missouri Correctional Center while Robinson was an inmate. William Bonner was a prison physician who treated Robinson and other inmates. In November 1993, Bonner filed for divorce. Toward the end of their marriage, Bonner told her husband she was helping Robinson find property for a hydroponics project. Bonner also said she planned to take a job with a company in Chicago. Bonner was not seen by her family after her final divorce proceeding in February 1994. Bonner's brother, Louell Heath, invited Bonner to his September 1995 wedding,Page 41 but she did not attend. Bonner's oldest son died in October 1995, but she did not attend his funeral. After Bonner's disappearance, Robinson stole her alimony payments. In December 1993, Robinson, posing as Jim or James Turner, applied for a mailbox under Bonner's name at The Mail Room in Olathe. The owner, Colleen Davis, identified Robinson at trial as the person she knew as Turner. Robinson executed a lease for Box 182 under Bonner's name on January 1, 1994. Robinson presented Bonner's identification and told Davis he was collecting Bonner's mail while she worked in Australia. Davis never met Bonner and only saw Robinson access the mailbox. William Bonner paid his ex-wife $1,000 in monthly alimony for 18 months. He timely mailed each alimony payment to Bonner's private mailbox in Olathe. Every alimony check was deposited into Robinson's Hydro-Gro, Inc., business account at Community Bank of Raymore, an account opened on February 1, 1994, with James A. Turner and Beverly J. Bonner as the authorized signatories. Three latent prints lifted from the original alimony checks matched Robinson's known prints. Robinson attempted to conceal Bonner's disappearance with fraudulent communications to her family. In January 1994, Bonner's brother, Larry Heath, received a handwritten letter purportedly from Bonner that said she was starting a new career with an international corporation in Chicago and that she would be traveling extensively, both domestically and abroad. A few months later, Larry Heath received a typewritten letter purportedly from Bonner, which was unusual because Bonner had always written letters by hand. The letter said Bonner was working for "Jim Redmond" in the human resources department of a large international corporation. Larry Heath continued to receive similar typewritten letters every 3 to 4 months. Occasionally, he would respond, mailing correspondence to Bonner's private mailbox. During the same time period, Louell HeathPage 42 received roughly half a dozen letters, which arrived in envelopes postmarked Australia, France, the Netherlands, and Kansas City, Missouri. The letters were typewritten, often discussed Bonner's travel overseas, and were signed in what Bonner's brothers believed to be her handwriting. In early 1997 the letters ceased. Bonner's family grew concerned and contacted authorities to report her disappearance. Detective Frank Booth examined nine of the envelopes mailed to Larry Heath. Eight of the envelopes had sufficient amylase to create a full DNA profile, and each profile matched Robinson's known DNA. 5. Sheila Faith and Debbie Faith Sheila Faith married John Faith, and the couple had a baby girl named Debbie Lynn on October 17, 1978. Debbie was born with a number of birth defects, including cerebral palsy, which limited her ability to walk and control her bladder, forcing her to wear adult diapers later in life. Sheila's husband passed away in 1993, and Sheila moved with Debbie from California to Pueblo, Colorado, to be closer to her friend, Nancy Guerrero. Sheila and Debbie lived on Social Security and struggled financially. According to Guerrero, Sheila was lonely and responded to personal ads in hopes of meeting a companion. On several occasions, Sheila talked to Guerrero about her interest in BDS&M but did not share details because Guerrero was uncomfortable with the subject. Sheila's sister also believed she was interested in BDS&M. In spring 1994, Sheila told Guerrero she had met a man named "John" from Missouri. Sheila said "John" was a wealthy executive who promised to take her on a cruise and put Debbie in private school. Sheila told her sister, Cathy Norman, that she had met a man with a good job, that they planned to travel together, and that he plannedPage 43 to buy Debbie a new wheelchair and accessible van. Norman said Shelia called him "Jim Turner" either in a letter or during their last telephone conversation. Sheila told Guerrero that she and Debbie were going to visit John. They planned to be gone for about a month, spending a couple weeks with John in Missouri and then traveling to Texas to visit family. Guerrero expected Sheila to return within a few weeks because they had purchased tickets to the Colorado state fair, and Sheila planned to enter a cross-stitched angel into the fair competition. While Sheila packed, Guerrero noticed she did not take furniture, bedding, or other items one would need for an indefinite stay elsewhere. Neither Guerrero nor Sheila's sisters saw or spoke to Sheila or Debbie again after they left Colorado to visit Robinson. Additionally, in 1995, Robinson gave one of his paramours, Sandra Shields, a cross-stitched angel as a gift. Guerrero identified the item as the piece Sheila Faith had made to enter into the state fair competition. After Sheila and Debbie left, Sheila's sisters received letters purportedly written by Sheila. In December 1994, Norman received a typewritten letter purportedly from Sheila in an envelope postmarked Canada. The letter said Sheila had met a wonderful man named Jim. Norman was convinced the letter was a fraud because Sheila always wrote letters by hand and Sheila's signature appeared to be forged. Norman received another letter the following December. Again, she was convinced Sheila did not write it because of the typewritten format and the nature of the signature. Sheila's other sister, Michelle Fox, also received a letter in an envelope postmarked outside the country. Fox immediately suspected it was fraudulent because of the typed format, style, and unusual signatures.Page 44 For years following their disappearance, Robinson stole Sheila's and Debbie's social security benefit payments. In June 1994, just months after setting up a private mailbox under Bonner's name, Robinson, posing as James Turner, set up another private mailbox at the Mail Room葉his time under the names Sheila and Debbie Faith. The owner saw Robinson come to the mailbox at least once a month to collect two government checks mailed to Sheila and Debbie Faith. While the Faiths were living in Colorado, the Social Security Administration (SSA) had mailed Sheila's and Debbie's benefit checks to a Pueblo, Colorado, address. For the first half of 1994, these checks were often deposited into an account held at Colorado National Bank. In June 1994, SSA received notice that Sheila's and Debbie's mailing address had changed to the private mailbox in Olathe. SSA began mailing benefit checks to this new address the following month. From July 1994 to September 1995, the checks were deposited into Robinson's Hydro-Gro, Inc., business account at Community Bank of Raymore葉he same account Robinson used to deposit Bonner's alimony checks. In fall 1995, Community Bank of Raymore notified Robinson, a/k/a James Turner, that Social Security checks could not be deposited into a business account. Thereafter, Robinson deposited the checks into his Specialty Publications' accounts at other financial institutions. Robinson also employed fraud and deceit to ensure Debbie's disability benefits would continue. In August 1994, SSA received a completed disability review form for Debbie, purportedly signed by Sheila Faith. Attached to the disability form was a medical report confirming Debbie's ongoing physical impairment. The report appeared to be signed by Dr. William Bonner, but he testified that he had never treated Debbie Faith, had not prepared the report, and had never had an office at the address identified in the document.Page 45 On June 7, 2000, law enforcement searched box 215 at The Mail Room and seized envelopes containing the June 2000 SSA benefit checks for Sheila and Debbie Faith. Lyla Thompson, a deputy with the JOCO Lab, developed several latent fingerprints from the other SSA checks that matched Robinson's known prints. 6. Vickie Neufeld Vickie Neufeld lived in Texas. She lost her job as a geriatric therapist in March 2000, and her financial situation was dire. Neufeld placed personal ads on BDS&M websites and began e-mailing Robinson. Neufeld and Robinson discussed a potential BDS&M relationship, and he sent her a slave contract to review. On April 23, 2000, Robinson asked Neufeld to visit him in Kansas. Robinson said he was a wealthy businessman with a history of helping other professional women get established in the area. He promised to support her and said they possibly could pursue a relationship. Robinson arranged for Neufeld to stay at Extended Stay America in Overland Park. She arrived on April 23, 2000. As Robinson had requested, she brought her own sex toys along for the trip. Robinson and Neufeld engaged in sexual activity at various times during her stay. On the morning of April 26, Robinson told Neufeld he was leaving for a business trip in Israel and wanted to discuss a plan for her to move to Kansas. Robinson said his business would pay movers to bring her belongings to Kansas that weekend. Robinson asked Neufeld to leave her sex toys with him, explaining it would give her extra incentive to return. Neufeld left behind her rattan-type canes and a mesh bag full of sex toys, which she valued at $700.Page 46 Neufeld returned to Texas, but the movers never arrived. On May 22, 2000, Neufeld asked Robinson to return her sex toys, but he did not comply. Neufeld filed a police report, and law enforcement found Neufeld's sex toys several days later during the search of Robinson's Olathe storage locker.The Investigation On March 25, 2000, the Overland Park Police Department took a missing person's report regarding Trouten and transferred it to the Lenexa Police Department, which had jurisdiction. Lenexa police created a multijurisdictional task force that quickly focused its investigation on Robinson's activities. They employed numerous investigative techniques, including surveillance, trash hits, consent searches, pen registers, wiretaps, and search warrants, leading to Robinson's arrest on June 2, 2000. On March 29 and 30, 2000, Deputy Daniel Rundle, a forensic chemist with the JOCO Lab, searched Trouten's room at the Guesthouse Suites in Lenexa. Although Rundle found several small bloodstains in the room, he admitted the search produced nothing of evidentiary value. On March 31, 2000, the Lenexa Police Department began searching trash left at the curbside for collection at Robinson's Olathe residence. On April 4, officers found an invoice for a package Robinson sent to Glines in California葉he woman who mailed letters postmarked from San Jose, California, at Robinson's request. On April 25, investigators used a Deffenbaugh trash truck with the company's permission and collected three bags of Robinson's trash. They recovered a telephone bill for service at Robinson's Linn County property, which documented a long-distance call placed from Robinson's trailer on the morning of Trouten's disappearance.Page 47 On May 22, 2000, law enforcement secured a court-ordered wiretap on Robinson's cell phone. Law enforcement later intercepted a call from Robinson to Remington's phone, which was answered by her minor son. During that call, Robinson identified himself as "Jim." Later that afternoon, law enforcement intercepted another telephone call from Robinson, posing as Jim Turner, to Remington. During this call, he said Trouten had stolen his credit cards and withdrawn money from his accounts, and that his private investigator had learned Trouten was in Mexico. He also said Carolyn Trouten had called one of his friends, inquiring about her daughter's whereabouts. On the morning of June 2, 2000, law enforcement secured a warrant to search Robinson's Olathe residence and his Olathe storage unit. Robinson was arrested that morning just before officers executed the search warrants. During the search of Robinson's residence, law enforcement officers seized a number of incriminating items, including books on creating false identities; a Home Depot credit card bearing the name "James A. Turner"; IRS Form 1099 statements for Sheila and Debbie Faith; Roadway Inn receipts with "Lisa Stasi" written on them, reflecting payment for lodging in January 1985; an IRS form signed by "Beverly J. Bonner"; documents identifying "James Turner" and "John Robinson" as affiliated with Equity Financial Group and Hydro-Gro, Inc.; papers and handwritten notes with e-mail addresses associated with the victims and their families; and e-mail communications between Trouten and Robinson. During the search of Robinson's Olathe storage unit, law enforcement officers seized several items relevant to the disappearances of Trouten, Lewicka, and Sheila and Debbie Faith. First, several items were immediately identifiable as Trouten's, including her Social Security card, Michigan driver's license, birth certificate, high school diploma, Sam's Club membership card, American Red Cross certification card, passportPage 48 application, and prescription medication. Law enforcement officers also found numerous personal items that family members identified as Trouten's property, including her jewelry boxes, jewelry, collectible items, nursing textbooks, and a journal with the name "Suzette" inside. A number of items also evidenced Trouten's BDS&M relationship with Robinson, including a slave contract, a sex tape, nude photographs, and e-mails. Several items were also immediately identifiable as Lewicka's, including her Polish passport, Kansas driver's license, Social Security card, resident alien card, Olathe Public Library card, high school diploma, Indiana vehicle registration, and a document appointing Robinson as her power of attorney. Law enforcement officers also found several personal items that family members later identified as Lewicka's. Additionally, law enforcement officers seized 1998 IRS Form 1099 statements for Sheila and Debbie Faith, along with photocopies of their SSA benefit checks for September 1997. Finally, police found a slave contract Neufeld had signed, along with her sex toys. On the morning of June 3, 2000, law enforcement officers secured a warrant from Johnson County District Judge Larry McClain to search Robinson's Linn County property. The search began that morning and continued for roughly 1 full week. Around 1 p.m. on June 3, Johnson County Sheriff's Detective Herald Hughes learned a cadaver dog alerted on two yellow, metal barrels on the property. The barrels were located out in the open, just to the south of a wooden shed located several yards to the southwest of the trailer on the property. Hughes opened the barrels and confirmed each contained the remains of a human body.Page 49 The barrels were transported to the Shawnee County morgue, where Shawnee County Deputy Coroner Donald Pojman conducted autopsies on June 4. The body removed from the first barrel was that of Trouten. It was mildly decomposed, unclothed, and lying in a fetal position inside the barrel. There was a soft, nylon rope tied around the head with a piece of cloth underneath covering the nose and mouth, which Pojman believed to be a blindfold that had slipped below the eyes. There were two visible injuries: a tear to the skin near the left armpit inflicted postmortem and an oval-shaped defect on the left side of the head, which Pojman believed to be lethal. Pojman concluded the cause of death was a blow to the left side of the head with a hard object. Forensic odontologist Daniel Winter confirmed Trouten's identity with her known dental records. Pojman then conducted the autopsy of the body in the second barrel, later identified as Lewicka. The body was moderately decomposed, lying in a fetal position, partially covered with a pillow, and clothed with a short-sleeve nightshirt. Inside the barrel, Pojman saw three pieces of gray or silver duct tape. He observed two blunt-force injuries to the skull, either of which could have been lethal. He noted the injuries were similar to Trouten's. Winter confirmed Lewicka's identity with her known dental records. Back in Linn County, deputies from the JOCO Lab discovered a variety of incriminating trace evidence inside Robinson's trailer. First, Deputy Allen Hamm found a paper towel inside the kitchen sink with a reddish-brown stain that presumptively tested positive for blood. Detective Booth, KCMO Lab, determined the genetic profile from the blood on the paper towel matched Trouten's DNA profile. Booth testified that this genetic profile occurs in only 1 in 6 billion people. Booth also found eight hair strands on the paper towel. Booth compared them to known samples from Trouten and Robinson and opined that they were common to Trouten and not Robinson. Booth admitted that, unlike DNA testing, comparative hairPage 50 analysis cannot yield a positive identification. However, he explained the methodology is still useful in excluding individuals or including them among a group of people that share similar hair characteristics. Additionally, Booth obtained a root from one of the hair samples and successfully acquired a genetic profile that produced a match to Trouten. Hamm found reddish-brown stains on wallboard in the kitchen that presumptively tested positive for blood. Booth confirmed that the genetic profile from the wallboard stains matched Trouten's DNA. Booth also found two hairs in the samples, both of which were common to Trouten and not Robinson. Hamm also collected swabs of a stain on a long piece of trim board in the kitchen area of the trailer. Booth found two hairs and two fragments in these swabs that were common to Trouten and not Robinson. Johnson County Sheriff's Deputy Andrew Guzman found a roll of duct tape inside a green plastic trash container in the south bedroom. The tape appeared to be similar to the strands of duct tape found inside the barrel containing Lewicka's body. Investigators saw a reddish-brown stain on the roll of duct tape, and Booth's subsequent testing confirmed the genetic profile produced a match to Lewicka's DNA. Deputy Thompson lifted one latent print from the roll of duct tape that did not match Robinson's known prints. Thompson compared the print to several crime scene investigators' known prints but found no match. Due to the state of decomposition of Lewicka's body, Thompson was unable to compare the print to Lewicka's. Thompson saw what appeared to be another partial print with some ridge detail on the roll of duct tape, but it was too incomplete to be of value. In addition to trace evidence, law enforcement officers seized a number of Trouten's belongings from inside Robinson's trailer. In the living room area, Guzman found a box with an "EZ Set" label on it and a box with a "Big Boy" label on it that contained glassware, oil lamps, figurines, and other collectable items. Carolyn TroutenPage 51 confirmed that many of these items belonged to Suzette Trouten. Thompson developed a number of latent prints from items in the EZ Set box that matched Robinson's known prints. On June 5, 2000, law enforcement officers executed a warrant to search a Raymore, Missouri, storage unit, rented by Robinson. In December 1993, Robinson had rented unit F-10 at Stor-Mor For Less in Raymore. He leased the unit under Beverly Bonner's name, claiming that Bonner was his sister and that he was storing her belongings while she worked in Australia. The leasing agent recalled Robinson saying Bonner worked for an agricultural company with "Hydro" in its name. Robinson leased this unit through the summer of 1996. In January 1994, Robinson leased a second unit, E-2, under Bonner's name and maintained that lease through the date of his arrest. Law enforcement officers began searching unit E-2, and within 10 minutes, they smelled a foul odor that they associated with a decomposing body. In the back of the locker, officers saw three barrels. The first was black and sealed with a gray lid. They opened the top and discovered a body inside. The two other barrels were located in front of the black barrel. They were covered with a large plastic sheet, and cat litter had been sprinkled around the outside of the barrels inside the plastic. Some of the litter appeared to have absorbed a dark fluid. The barrels were wrapped together with two additional pieces of plastic sheeting held up with pieces of duct tape. Thompson examined the plastic sheeting and duct tape and developed four latent prints of value. Three of the latent prints matched Robinson's known prints, and one was not identified. The officers did not open the second and third barrels but suspected they too contained human remains.Page 52 All three barrels were transported to the Jackson County Medical Examiner Thomas Young. Young conducted an autopsy on the body inside the first barrel, later identified as Beverly J. Bonner. The body was curled up inside the barrel and fully dressed for cold weather. Young believed the body had been stored for a long period of time because most external features were blurred and the internal organs were hard to distinguish. The body had substantial trauma to the head caused by multiple blows from a blunt object with a rounded surface, consistent with a hammer. Young opined that any number of these blows could have resulted in death. On June 7, 2000, forensic odontologist Ronald Grier confirmed the victim was Bonner. Next, Young conducted an autopsy on the body contained one of the two barrels wrapped in plastic, later identified as Sheila Faith. The body was an adult female, fully clothed. Young believed the state of decomposition was consistent with the death having occurred 5 to 6 years prior but admitted no precise date of death could be determined. The body had multiple injuries to the head caused by blunt-force trauma consistent with infliction by a hammer. Young opined that any number of these blows could have been fatal. Young also observed a fracture of the right forearm, specifically the right ulna, which he testified to be consistent with a defensive wound. Grier confirmed the victim was Sheila Faith. Finally, Young conducted the autopsy on the body found inside the third barrel, later identified as Debbie Faith. The body was fully clothed, and the subject was wearing an adult disposable diaper. Young believed the victim was a teenager because x-rays revealed that several growth discs had not closed. Again, Young testified that the state of decomposition was consistent with the death having occurred 5 to 6 years prior but admitted no precise date could be determined. The victim had sustained at least three blows to the head, each of which could have been fatal, inflicted by a blunt object with aPage 53 rounded surface, consistent with a hammer. Using known dental x-rays, Young opined the victim was Debbie Faith. Lisa Stasi's body has never been found. On June 9, law enforcement officers searched the Grant Street Duplex with Sandre's consent. They seized a number of items belonging to Lewicka, including two sets of bedding, an antique Polish coffee grinder, a Hungarian espresso machine, and a black journal with handwriting and sketches. Investigators noticed one of the sets of bedding matched the pattern on the pillowcase found inside the barrel containing Lewicka's body. The bedding also matched the pattern depicted in nude photographs of Lewicka found in Robinson's Olathe storage unit. Hanging on the wall of the duplex was a framed oil painting with the signature "John '92" and the initials "JR" at the top. There were also two pencil drawings displayed in the spare bedroom signed "John 2000" and the initials "JR" underneath. Lewicka's friend Carter, who had cataloged Lewicka's artwork and was familiar with her paintings and drawings, recognized the framed painting as Lewicka's artwork. Lewicka's friend Hayes also identified the pencil drawings as Lewicka's work. Law enforcement officers seized several books purchased from A. Friendly's, where Lewicka was a frequent patron. The owner, Meyers, specifically recalled selling two of the books to Lewicka.The Trial On June 2, 2000, the State filed its Complaint against Robinson, charging him with two counts of aggravated sexual battery and one count of theft. The State amendedPage 54 its Complaint on June 13, adding one count of aggravated kidnapping and two counts of capital murder. The State filed its Second Amended Complaint on July 28, adding one charge of premeditated first-degree murder and one charge of aggravated interference with parental custody. On August 31, 2000, the State filed its Third Amended Complaint, supplementing allegations in the existing counts. At preliminary hearing, the State put on evidence supporting the eight counts in the Third Amended Complaint. District Judge John Anderson III found probable cause lacking and dismissed Count IV, aggravated sexual battery of J.M. Judge Anderson renumbered the remaining seven counts, which were tried to the jury. Jury selection began on September 16, 2002. Judge Anderson empanelled the jury on October 4, and trial commenced on October 7. At the close of the State's evidence, Judge Anderson granted defendant's motion for directed verdict on Count IV, aggravated sexual battery of Vicki Neufeld. On October 25, 2002, the defense rested. That same day, the State filed a Fourth Amended Complaint charging Robinson only with the counts from the Third Amended Complaint that survived Robinson's motion for directed verdict. The following six counts were submitted to the jury on October 28, 2002: Count I, aggravated kidnapping of Suzette Trouten; Count II, capital murder of Suzette Trouten; Count III, capital murder of Izabela Lewicka; Count IV, felony theft of Vicki Neufeld's property; Count V, premeditated first-degree murder of Lisa Stasi; and Count VI, aggravated interference with Lisa Stasi's parental custody. On October 29, 2002, the jury returned a unanimous verdict convicting Robinson on all counts.Page 55 PRETRIAL AND GUILT PHASE ISSUES1. VENUE Robinson argues pretrial publicity was so pervasive and prejudicial in Johnson County that it resulted in actual prejudice to his right to trial by a fair and impartial jury in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution. He also claims Judge Anderson abused his discretion by refusing to transfer venue to another county pursuant to K.S.A. 22-2616(1).Additional Factual and Procedural Background 1. First Motion for Venue Change Robinson first moved for a change of venue on January 17, 2002. At the January 30, 2002, evidentiary hearing, defendant presented testimony from venue experts, along with the results of a venue study prepared by Lisa Dahl of Litigation Consultants, Inc. The study was based on three telephone surveys: one of 400 Johnson County residents, one of 200 Harvey County residents, and one of 200 Ellis County residents. Dahl selected Johnson County, which had a population of 464,083 at the time, because it was the venue of origin. She selected Harvey County, which had a population of 35,737, as one of the control groups because its county seat, Newton, was a bedroom community to Wichita, much like Olathe was a bedroom community to Kansas City. She selected Ellis County, which had a population of 28,731, as another control group because it was geographically removed from the venue of origin and other metropolitan areas, yet its demographic makeup and crime rates were comparable to Johnson County. Dahl testified the number of respondents in each county was statistically sufficient to extrapolate resultsPage 56 to the general population within a 5 percent margin of error in Johnson County and 7 to 8 percent margin in the control counties. The surveys' results showed 94 percent of the respondents in Johnson County were aware of this case, compared to 80 percent in Harvey County and 64 percent in Ellis County. Further, 67 percent of those surveyed in Johnson County held an overall opinion that the defendant was "definitely guilty" or "probably guilty." In contrast, 50.5 percent of the Harvey County respondents and 35.5 percent of the Ellis County respondents held similar opinions. As to respondents' views of the strength of the evidence of defendant's guilt, 72.3 percent of the Johnson County respondents believed it to be "overwhelming" or "strong." Half of the respondents in Harvey County and only 35.5 percent of respondents in Ellis County believed likewise. Also, 68 percent of Johnson County respondents had knowledge of case facts beyond those presented in the survey, compared to only 23 percent in Harvey County and 27.3 percent in Ellis County. Dahl testified that the surveys' results were generally statistically significant. However, in the three counties surveyed, there was no statistically reliable difference in sentencing opinions among respondents who recalled the case. Dahl admitted she was not interested in exploring whether respondents could set aside preconceived opinions and serve as impartial jurors. In fact, none of the 38 questions in the surveys explored respondents' ability to assess the case impartially. Robinson also called Ronald Dillehay, a professor of psychology at the University of Nevada-Reno with expertise in the design and analysis of venue studies and jury selection procedures. Dillehay testified that the design of Dahl's venue surveys was scientifically valid and conformed to generally accepted practices in the field. Dillehay also testified that the absence of questions exploring respondents' ability to serve asPage 57 impartial jurors did not invalidate the venue study. In support, he cited studies in the fields of psychology and social science that suggest humans struggle to set aside preconceived opinions but will confirm their ability to do so when asked. Thus, Dillehay said such questions produce a lack of response variance sought in reliable questionnaires. Dillehay acknowledged the survey data showed a very high level of awareness and prejudgment of the case in Johnson County and then discussed possible options to counteract such prejudice, including: (1) change of venue; (2) importing jurors from outside Johnson County; (3) delay; (4) enhanced voir dire; (5) additional peremptory challenges; and (6) judicial instructions. Dillehay believed delay and judicial instructions would be ineffective due to the high levels of awareness and prejudgment. As to the option of enhanced voir dire, Dillehay explained that the court could overcome juror minimization, which he described as a tendency on the part of jurors during voir dire to downplay what they learned from the media coverage and the impact it had on their prejudgment and/or impartiality, by allowing attorneys to ask prospective jurors extensive, probing voir dire questions. Dillehay explained that enhanced voir dire would require participation of attorneys, lots of questions, and small groups consisting of no more than four to six people, facilitating an environment where prospective jurors would be forthcoming. While effective, Dillehay believed enhanced voir dire would be too onerous from a logistical or administrative perspective, describing it as "very laborious and very time-consuming." On the second day of the evidentiary hearing, continued to March 6, 2002, the defense played 2 hours of televised news coverage of the case broadcast within the first 2 weeks of the discovery of bodies on Robinson's Linn County property in June 2000. In the motion, defendant had also submitted articles about the case published by the Kansas City Star from June 6, 2000, to July 27, 2001. During this time period, the Kansas CityPage 58 Star published 72 stories. More than half of them were published in the same month the story broke. Coverage gradually dissipated and was nearly nonexistent at the end of 2000 and early 2001. Thereafter, the majority of the coverage shifted from reports about Robinson and the crimes to trial coverage. Judge Anderson denied the motion in a March 12, 2002, order, explaining:"Despite the extraordinary amount of attention this case has received from the public and in the press thus far, the Court is not convinced that the defendant cannot obtain a fair trial. Johnson County is a large county with a sophisticated pool of potential jurors. The Court is confident that appropriate voir dire and jury selection methods will result in a fair and impartial jury that will decide the case on the evidence presented in court and on its merits. The presumption of innocence and the right to a fair trial are of the utmost importance to the rule of law in this country. The system simply does not function without it. If it becomes apparent during voir dire that an impartial jury cannot be found, the Court will not be reluctant to order a change of venue." 2. Renewed Motion for Venue Change after Voir Dire On October 3, 2002, after completing voir dire, Robinson filed "Defendant's Renewed Motion for Change of Venue, or, in the Alternative, to Discharge the Jury Panel," arguing that voir dire had proven inadequate to overcome community bias. At the outset of jury selection, roughly 1,200 Johnson County residents were issued summonses and ordered to appear in four groups of 300, but the district judge later released the final two panels. Veniremembers completed a juror questionnaire (questionnaire) prepared by the parties, eliciting their views on pretrial publicity, the death penalty, and other case-specific facts and issues.Page 59 With the agreement of the parties, the trial court conducted jury selection in four phases. In the first phase, Judge Anderson called prospective jurors in groups of 60 to explore and rule on hardship challenges. In the second phase, Judge Anderson assigned jurors to six-member panels to conduct small group voir dire on pretrial publicity and death penalty topics. After the parties completed voir dire of each panel, the district judge ruled on challenges for cause. From September 18 to October 1, 2002, the parties examined 43 panels made up of 259 veniremembers. Nearly all had some knowledge of the case. Judge Anderson passed only 83 of the 259 panelists to the third phase of jury selection. A majority of these disqualified panelists, 167 of 259 (64 percent), were excused for cause based on preconceived opinions of the case, firm death penalty opinions (both for and against), or both. Specifically, 74 of the 259 panelists (28.5 percent) were excused based solely on firm opinions due to exposure to pretrial publicity, 72 panelists (27.7 percent) were excused based solely on firm opinions regarding the death penalty, and 21 additional panelists (8.1 percent) were excused on both pretrial publicity and death penalty grounds. In total, 95 of the 259 panelists were excused, in whole or part, due to bias related to pretrial publicity and 93 panelists were excused, in whole or part, based on their disqualifying death penalty opinions. Judge Anderson liberally excused panelists holding preconceived opinions, granting 92 of the 100 challenges defendant asserted on this basis. Nine of the 259 panelists (3.4 percent) were excused because of previously undisclosed hardships or grounds unrelated to pretrial publicity or the death penalty. Of the 83 panelists passed to general voir dire, 52 were passed without any challenge for cause asserted by either party. The 31 other panelists were passed over thePage 60 objection of one of the parties4 from the State and 27 from defendant. However, Robinson challenged 19 of these 27 based on death penalty views and 8 on grounds related to bias arising from exposure to media coverage. During general voir dire, Judge Anderson passed 65 of the 83 panelists, excusing 18 on grounds unrelated to pretrial publicity. However, the district judge needed only 51 panelists to seat a jury of 12 with 5 alternates. The parties agreed to release the 14 jurors with the highest assigned juror numbers. Juror 440, whom Robinson had previously challenged unsuccessfully on pretrial publicity grounds, was 1 of the 14 panelists released. This left only 7 prospective jurors on the final panel that defendant had challenged unsuccessfully on grounds of bias arising from exposure to pretrial publicity. In the final phase of jury selection, the parties exercised peremptory challenges. Among those jurors seated, 11 of 12 were passed by the parties without any objection based on preconceived opinions of guilt, and all jurors confirmed their ability to serve impartially. Defendant had challenged only one of the seated jurors, Juror 39, on grounds of bias related to pretrial publicity. Eight of the 12 jurors were passed for cause without challenge from either party (Jurors 87, 92, 131, 147, 214, 246, 302, and 309). At the start of the eighth day of trial, Juror 214 was excused because of an emergency medical hardship in her family and was replaced by Alternate Juror 340. The parties had passed Juror 340 without challenge. While every seated juror was familiar with the case, most had limited exposure to the media's coverage. All but two members of the jury characterized their exposure to pretrial publicity as minimal, passing, or light; and several members said they saw coverage when the story first broke 2 years earlier and their recollection of the reported facts had diminished over time.Page 61 After hearing argument on the renewed motion for venue change on October 4, 2002, the trial judge denied the motion, finding the jury selection process had yielded a fair and impartial jury. 3. Second Renewed Motion for Venue Change On October 7, 2002, just before opening statements, defendant renewed his motion to change venue for a second time. Defense counsel explained that earlier that morning, he entered Judge Anderson's chambers and noticed a copy of that morning's Olathe Daily News sitting in the reception area. The front page of the newspaper contained Robinson's photograph, and the newspaper's banner headline read "Robinson to face his jury" and the subheading read "Defense says trial should be moved." Defense counsel explained that when he emerged from chambers, the jury walked past him, coming within 2 feet of the paper, which was face up on the reception counter. The defense believed jurors could have seen the headlines, warranting a venue change. The trial court denied the second renewed motion for venue change, finding that he had "no idea" whether any jurors saw the newspaper, but even if they did, there was no prejudice in light of the content and given the media's extensive reporting on defendant's motion to change venue earlier that spring. 4. Third Renewed Motion for Venue Change Defendant renewed his motion to change venue for a third time on October 9, 2002, explaining that a local radio personality had been giving away T-shirts outside the courthouse as a publicity stunt that morning. The front of the T-shirts read "Roll Out the Barrels! Of Evidence," and the back read "John E. Robinson Trial 2002."Page 62 Judge Anderson found that none of the jurors were exposed to the publicity stunt or T-shirts because of safeguards the court had taken, including bringing jurors into the courthouse through a secluded entry away from the incident. Judge Anderson denied the motion, concluding the incident did not affect jurors "in any way, shape or form."Legal Framework and Standard of Review Robinson argues the district judge's denial of his change of venue motions violated his constitutional right to an impartial jury. The Sixth Amendment guarantees an accused "[i]n all criminal prosecutions" the right to a trial by "an impartial jury." U.S. Const. amend VI. This protection is incorporated into and made applicable to the States through the due process provision of the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 153-58, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968). A constitution-based claim for venue change can arise under a theory of presumed or actual Sixth Amendment prejudice. State v. Longoria, 301 Kan. 489, 506, 343 P.3d 1128 (2015). "'[A]ctual prejudice,' occurs 'where the effect of pretrial publicity manifested at jury selection is so substantial as to taint the entire jury pool.'" State v. Carr, 300 Kan. 1, 57, 331 P.3d 544 (2014) (quoting Goss v. Nelson, 439 F.3d 621, 628-29 [10th Cir. 2006]), cert. granted in part 135 S. Ct. 1698 (2015). "'In cases of actual prejudice, "the voir dire testimony and the record of publicity [must] reveal the kind of wave of public passion that would have made a fair trial unlikely by the jury that was impaneled as a whole." [Citations omitted.]'" 300 Kan. at 57. "Jury selection is a task 'particularly within the province of the trial judge.'" Carr, 300 Kan. at 75 (quoting Ristaino v. Ross, 424 U.S. 589, 594-95, 96 S. Ct. 1017, 47 L. Ed.Page 63 2d 258 [1976]). A district judge's ruling on juror impartiality "is entitled to special deference." 300 Kan. at 75. Accordingly, we review claims of actual prejudice under the abuse of discretion standard. 300 Kan. at 75. "An abuse of discretion can occur in one of three ways謡hen the trial court makes an error of law; bases its decision on facts not supported by the evidence; or makes an arbitrary, fanciful, or unreasonable decision." Longoria, 301 Kan. at 509. Defendant also challenges Judge Anderson's rulings under the Kansas change of venue statute, K.S.A. 22-2616(1). As with claims of actual prejudice, we review the trial court's ruling under the statute for abuse of discretion. Longoria, 301 Kan. at 509.Actual Prejudice Robinson advances five arguments in support of his actual prejudice challenge, arguing that the trial court abused its discretion by: (1) failing to acknowledge uncontroverted social science evidence that individuals cannot set aside preconceived opinions; (2) applying K.S.A. 22-2616 contrary to the Sixth Amendment; (3) finding voir dire eliminated those with bias; (4) failing to acknowledge the media's interference with proceedings; and (5) failing to acknowledge jurors' failure to abide by admonitions. 1. Did the trial court's findings ignore social science research? Robinson argues the district judge erroneously denied the venue change motion in light of uncontroverted expert witness testimony describing social science studies that suggest people struggle to genuinely set aside preconceived beliefs. Given this testimony, Robinson believes Judge Anderson's finding that voir dire could overcome community bias is unsupported by record evidence.Page 64 There are several problems with Robinson's argument. First, it fails to place the expert witness' testimony in its proper context. During the evidentiary hearing, the defense asked its expert witness, Dillehay, whether Dahl's venue questionnaire was valid even though it failed to explore respondents' ability to set aside their opinions of the case. Dillehay opined that such questions were properly excluded from the surveys because they do not produce reliable survey data. In support of this opinion, Dillehay identified several studies suggesting humans' struggle to genuinely set aside preconceived beliefs yet will attest to their ability to do so. Dillehay did not attempt to extrapolate these findings as support for the broader proposition that Robinson advances here葉hat anyone who forms an opinion of the case is thereafter unalterably tainted and rendered unqualified to serve as a juror. In fact, the Supreme Court has observed that empirical studies support the opposite conclusion. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1054-55, 111 S. Ct. 2720, 115 L. Ed. 2d 888 (1991) ("Empirical research suggests that in the few instances when jurors have been exposed to extensive and prejudicial publicity, they are able to disregard it and base their verdict upon the evidence presented in court."). More importantly, Dillehay later testified that this phenomenon, which he called "juror minimization," could be overcome by employing enhanced voir dire techniques. Dillehay opined that enhanced voir dire would facilitate open, genuine responses from veniremembers, enabling the district judge to identify and remove those rendered unqualified to serve due to preconceived opinions of guilt. This testimony provides record support for Judge Anderson's finding that "appropriate voir dire and jury selection methods will result in a fair and impartial jury." For these reasons, the ruling is supported by substantial, competent evidence and does not constitute an abuse of discretion. See State v. McCullough, 293 Kan. 970, 980-81, 270 P.3d 1142 (2012) (trial court abuses discretion where substantial competent evidence does not support a finding upon which a legal conclusion rests).Page 65 2. Did the trial court apply an incorrect legal standard? Robinson next argues the trial court applied an "impossibility of fair trial" standard under K.S.A. 22-2616(1) rather than the Sixth Amendment "reasonable likelihood" of an unfair trial standard embraced by the Supreme Court. See Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966) ("But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should . . . transfer it to another county not so permeated with publicity."). Robinson relies on language from the trial court's order denying the first venue change motion, which concluded that "[d]espite the extraordinary amount of attention this case has received from the public and in the press thus far, the Court is not convinced that the defendant cannot obtain a fair trial." (Emphasis added.) Robinson believes the use of the term "cannot" proves the district judge employed an "impossibility" standard to defendant's venue change motion. However, this language merely tracks the venue change statute itself, which compels the court to transfer venue where prejudice against defendant is so great that he or she "cannot obtain a fair and impartial trial in that county." (Emphasis added.) K.S.A. 22-2616(1). We disposed of a substantively similar challenge in Carr, where defendant argued Kansas' venue change statute improperly elevated the standard of proof from "reasonable likelihood" of an unfair trial to an "absolute certainty" of an unfair trial by compelling a venue change only when defendant cannot obtain a fair trial. 300 Kan. at 80. However, we observed in Carr that Kansas courts consistently apply a "reasonable certainty" standard of proof (i.e., "'reasonable certainty' that the defendant cannot obtain a fair trial in the ordinary venue") to challenges under Kansas' venue change statute and found thisPage 66 standard to be wholly consistent with the Supreme Court's "reasonable likelihood" standard. 300 Kan. at 80-81. Carr disposes of Robinson's challenge because it is founded on Judge Anderson's reference to the same statutory language at issue there. Defendant also contends Judge Anderson's order is erroneous because it fails to address the constitutionally based venue challenge apart from his statutory challenge. However, the trial court's memorandum decision addressed the motion to change venue under "K.S.A. 22-2616, ァ 10 of the Kansas Constitution's Bill of Rights, and the Sixth and Fourteenth Amendments to the United States Constitution." While the order does not make separate findings between the statutory and constitutionally based theories in the motion, "defendant[ ] never sought a more complete recitation or writing to explain Judge [Anderson's] venue rulings; and, if [he] thought the findings were insufficient for appellate review, [he] had an obligation to do so." Carr, 300 Kan. at 65. Robinson's failure to do so forecloses his challenge. See Longoria, 301 Kan. at 506 (Where defendant fails to "object to the adequacy of the trial court's factual findings, we assume that the trial court made the findings necessary to deny the change of venue."). 3. Did voir dire prove ineffective to overcome prejudice? In his third actual prejudice argument, Robinson claims the trial court erred by failing to recognize that jury selection only confirmed the need to change venue. This challenge goes to the heart of the question of actual Sixth Amendment prejudice."When faced with a claim of actual prejudice, a trial court must 'review the media coverage and the substance of the jurors' statements at voir dire to determine whether a community-wide sentiment exists against the defendant. Negative media coverage by itself is insufficient to establish actual prejudice.'" Longoria, 301 Kan. at 508 (quoting Carr, 300 Kan. 1, Syl. カ 6).Page 67 In reviewing a claim of actual prejudice, we examine "'"whether the judge had a reasonable basis for concluding that the jurors selected could be impartial."'" Carr, 300 Kan. at 74-75. Robinson first argues the character and composition of the jury panel, as well as the members of his jury, demonstrate actual prejudice. To the contrary, Judge Anderson's jury selection procedures proved to be successful in identifying bias and removing those veniremembers adversely affected by pretrial publicity. During the second phase of jury selection, the district judge, consistent with the recommendation of Robinson's expert, Dillehay, assigned veniremembers to small group panels consisting of six members and allowed counsel for the parties to question them extensively on pretrial publicity and death penalty topics. Through this process, Judge Anderson excused 95 of the 259 panelists, roughly 37 percent, in whole or in part, because of firm opinions of guilt arising from exposure to pretrial publicity. Of the 83 panelists passed to the third phase of jury selection, general voir dire, Robinson had challenged only 8 unsuccessfully on grounds related to pretrial publicity or preconceived opinions of guilt. Robinson argues 52 of the 83 panelists (nearly 63 percent) passed to the third phase were biased. However, this calculation includes jurors who merely expressed a belief in capital punishment, even if they had not formed opinions about the case as a result of exposure to pretrial publicity. Robinson's selection criteria were also overly broad, including jurors who expressed a belief or a "leaning" toward the belief that Robinson was guilty or made statements Robinson believed to be "suggestive of such a belief either during voir dire or merely in their questionnaire responses. Robinson claims 28 of the 83 panelists held opinions of guilt (either exclusively or in addition to views in support of capital punishment). Yet, he challenged only 8 of the 83 panelists on suchPage 68 grounds. The discrepancy between Robinson's calculation and his actual challenges for cause highlights the unreliability of defendant's calculations. Moreover, the members of defendant's jury were well qualified. The jury consisted of 11 members who entered the box without preconceived opinions of the case, and all confirmed their ability to set aside personal views and decide the case on the evidence at trial. Most jurors had minimal exposure to the media's coverage of the case, and none expressed community hostility toward Robinson. Defendant argues that 8 of the 12 members of the jury were biased. However, defendant's count suffers the same methodological flaws identified above擁t includes jurors based solely on their death penalty views unrelated to pretrial publicity and the selection criteria were overly broad. Excluding those jurors defendant counted based solely on their alleged opinion regarding sentence, Robinson identified only four jurors (Jurors 39, 87, 246, and 302) who purportedly held preconceived opinions of guilt. However, a review of their voir dire testimony confirms their impartiality. Juror 39 agreed there had been a lot of media coverage, mostly adverse to Robinson. When defense counsel asked whether the coverage had caused her to form any opinions about defendant's guilt, Juror 39 said, "Well, from what I've read, it seems that the crimes that were committed were committed by him. Again, that's just based on what I've read and what I've heard on the news." Even so, Juror 39 confirmed her ability to set these facts and opinions aside and committed to holding the State to its burden of proof at trial. When questioned on the subject again during general voir dire, Juror 39 understood she would have to disregard all media facts and start with a clean slate at trial and confirmed her willingness and ability to presume defendant innocent.Page 69 Juror 87 testified that she had formed no opinion of guilt and could set aside all media reported facts in response to questioning from both parties. In the questionnaire, she said that the published reports did not look good for defendant but shared that people only get half the story in the paper and those reports are unbalanced and one-sided. She also clarified that she had not personally decided Robinson was guilty and would set aside media information and render a verdict based on the evidence. Defendant did not challenge Juror 87 for cause. Juror 246, in questionnaire responses, said that she had no idea about Robinson's guilt or innocence, that if he did commit the crimes he was very sick, and that based solely on the media's coverage it appeared there was a probability of guilt. Even so, Juror 246 confirmed in response to questioning that she remained unsure as to defendant's guilt or innocence. Juror 246 said her memory of media reported facts had faded over time. Even if the evidence at trial refreshed her recollection of media facts, Juror 246 said she would not consider them or allow them to influence her decision. She understood the applicable burden of proof and confirmed she would acquit Robinson if the State failed to meet its burden. Defendant did not challenge Juror 246 for cause. Juror 302 said she was unsure as to Robinson's guilt or innocence in questionnaire responses. She felt the media had portrayed Robinson as guilty but clarified this was not necessarily her view. Juror 302 was confident she could set aside media-reported facts and decide the case on the evidence. Defendant did not challenge Juror 302 for cause. Based on his extensive jury selection procedures and the voir dire testimony of seated jurors, Judge Anderson had a reasonable basis for concluding that the jurors selected could be impartial. State v. Ruebke, 240 Kan. 493, 500-01, 731 P.2d 842 ("Unless we are to assume that (1) the jurors selected to try the defendant violated their oath when they swore that they could give the defendant a fair trial or (2) an individualPage 70 can commit a crime so heinous that news coverage generated by that act will not allow the perpetrator to be brought to trial, the defendant has not established substantial prejudice."), cert. denied 483 U.S. 1024 (1987); see Gardner v. Galetka, 568 F.3d 862, 890 (10th Cir. 2009) (holding that there was no actual prejudice even though 55 percent of prospective jurors had formed an opinion about guilt, and 4 of 12 impaneled jurors indicated that they thought defendant was guilty, where all indicated they could decide the case on the evidence alone); Hale v. Gibson, 227 F.3d 1298, 1320 (10th Cir. 2000) (defendant must show more than that the juror had a preconceived notion of guilt; he must show that the juror had such a fixed opinion that he or she could not judge impartially). Robinson suggests the jurors' declarations of impartiality were unreliable in light of the extensive and unfavorable media attention. However, we have emphasized that "[n]egative media coverage by itself is insufficient to establish actual prejudice." Carr, 300 Kan. 1, Syl. カ 6. Only in rare and extreme cases will the court disregard juror declarations of impartiality in favor of a finding of actual prejudice. For example, in Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961), the media unleashed a barrage of newspaper headlines, articles, cartoons, and pictures against defendant leading up to trial. These stories examined defendant's prior convictions, announced his identification in a police lineup, reported that he had been placed at the scene of the crime, and explained that "the six murders were solved but petitioner refused to confess." 366 U.S. at 725. On the day before trial, the media reported that Irvin had admitted to the murder of the victim in the case, as well as other murders. The press also reported that defendant offered to plead guilty to avoid the death penalty. The trial court excused 268 of the 430 veniremembers (62 percent) based on their bias, and 8 of 12 jurors entered the box with preconceived opinions of guilt. GivenPage 71 these circumstances, the Supreme Court found it improper to rely on juror representations of impartiality. 366 U.S. at 727-28. Since Irvin, the Supreme Court has twice considered and rejected claims that juror declarations of impartiality should be set aside. See Patton v. Yount, 467 U.S. 1025, 1029-30, 1033-34, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984) (although 77 percent of veniremembers admitted they carried opinions of guilt and 8 of the 14 jurors and alternates admitted the same, declarations of impartiality were reliable because passage of time had minimized jurors' conviction in opinions); Murphy v. Florida, 421 U.S. 794, 800-01, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975) (refusing to set aside the jurors' declarations of impartiality where the voir dire testimony did not reflect the wave of community hostility present in Irvin). In Carr, we considered but declined the invitation to second-guess jurors' assurances of impartiality under facts comparable to Robinson's:"The jury pool here was far less polluted by preconceptions on guilt; in Irvin, 90 percent of potential jurors believed the defendant was guilty. Here, [the trial judge] was not forced to excuse 60 percent of the jury pool at the outset. The number of jurors ultimately seated who had to set aside their earlier opinions was half of that who would have had to do so in Irvin; and none of them expressed community outrage. We also are reassured here by the protective measures taken by [the trial judge], including use of jury questionnaires and individual voir dire." 300 Kan. at 78-79. As in Carr, Irvin is distinguishable on the facts. In Irvin, the trial court dismissed 62 percent of the entire venire based on firmly held opinions of guilt. Here, the figure was 37 percent. Only a small percentage of the 83 panelists passed to general voir dire had been challenged based on preconceived opinions of guilt. Nearly all, 11 of 12 jurors, entered the box having formed no such opinion of defendant, a vast improvement overPage 72 Irvin, where 8 of 12 jurors held preconceived opinions of guilt, and even better than in Carr, where 4 of 12 held preconceived opinions. With few exceptions, jurors did not actively follow the media coverage, and media facts did not contain the "smoking-gun" reports of particular concern in Irvin, such as confessions, results of lie-detector tests, and offers to plead guilty to avoid the death penalty. Judge Anderson seated jurors who had formed no opinions, "who had forgotten or would need to be persuaded again." Patton, 467 U.S. at 1034. In sum, Judge Anderson exercised great care in designing an enhanced jury selection process. As defendant's expert, Dillehay, predicted, the process proved to be a highly effective tool for combating the impact of potentially prejudicial pretrial publicity熔ne that yielded a qualified and impartial jury. As such, Judge Anderson had reasonable grounds to accept jurors' declarations of impartiality in this case, and Robinson has failed to demonstrate actual prejudice. See Gardner, 568 F.3d at 887-90 (finding no Sixth Amendment prejudice where four jurors had formed opinions of guilt, protective measures trial court implemented during jury selection added credibility to the juror's declarations of impartiality); Hale, 227 F.3d at 1332-33 (refusing to set aside declarations of impartiality where half of jurors entered box with opinions of guilt, but voir dire did not uncover "an atmosphere of hostility toward the defendant, nor did the trial court have a difficult time in seating the jury"). 4. Did media interference demonstrate actual prejudice? Robinson argues the media's interference with courtroom proceedings necessitated a finding of actual prejudice. First, he suggests media saturation hit the courthouse steps when a local radio station conducted a publicity stunt by handing out "Roll out the Barrels of Evidence" T-Page 73 shirts outside the courthouse during trial葉he incident giving rise to the third renewed venue change motion. However, Robinson does not dispute Judge Anderson's factual finding that the jury was not exposed to this incident, and that, therefore, it could not have affected the jurors' impartiality. We defer to the district judge's findings and concur with his legal conclusion. See State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011) (applying deference to trial court factual findings in motion to withdraw plea). Second, Robinson suggests the media coverage reached the court's chambers on October 7, 2002, when jurors had the opportunity to view the front page of that morning's copy of the Olathe Daily News葉he incident giving rise to the second renewed venue change motion. Defendant failed to establish that any juror actually saw the article, and even if a juror or jurors had, we have no basis in the record to disagree with Judge Anderson's finding that the content was not prejudicial. See State v. Bible, 175 Ariz. 549, 566-67, 858 P.2d 1152 (1993) (finding no error in denying motion to change venue where appellant failed to demonstrate publicity resulted in actual prejudice). Finally, Robinson suggests media coverage spilled into the courtroom itself when jurors were exposed to prejudicial comments during voir dire. Robinson explains that during questioning of one small group panel, a veniremember said she sensed that she was "in the presence of evil" around Robinson. Defendant acknowledges this prospective juror was excused but argues Juror 298, who served on the jury, was subjected to the comment. Of course, the statement in question was made by a prospective juror, not publicized by the media, and Juror 298's voir dire responses confirmed she had formed no opinion of guilt and was committed to deciding the case based on the evidence. Not surprisingly, defendant did not challenge Juror 298 as biased by pretrial publicity. Similarly, defendant argues that Juror 184, who served on the jury, heard a fellow panelist describe Robinson as a "predator." Again, this comment was made by a fellowPage 74 veniremember, not publicized by the media. Juror 184 entered the box without any preconceived opinion of Robinson's guilt, and defendant did not challenge this juror for cause on grounds related to bias or exposure to pretrial publicity. Robinson offers no further examples of media interference during court proceedings, and none are apparent from the record. Robinson fails to demonstrate actual prejudice. 5. Did jurors ignore admonitions, demonstrating actual prejudice? Finally, Robinson suggests veniremembers' refusal to abide by the district judge's admonitions to avoid media coverage necessitated a finding of actual prejudice. Defendant believes prospective jurors did not follow this admonishment because several panelists knew they would not be sequestered, a fact allegedly reported in the media, before the district judge made the announcement. The record does not support defendant's deduction-based argument. Judge Anderson expressly found that court administrators informed several veniremembers of the fact they would not be sequestered before the district judge made the announcement. Robinson does not dispute this finding. Moreover, defendant fails to establish that any member of his jury actually failed to comply with the district judge's admonitions. While it is concerning that some prospective jurors may have learned the trial court's position on sequestration from media sources, this does not establish actual prejudice, given the extensive protective measures Judge Anderson implemented throughout jury selection and the character and composition of jurors ultimately seated.Page 75 Statutory Venue Challenge Independently, Robinson argues Judge Anderson abused his discretion in denying his motions under Kansas' venue change statute. K.S.A. 22-2616(1) compels a venue change where the district judge "is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county." The burden falls on defendant to show prejudice in the community, not as a matter of speculation but as a demonstrable reality. State v. McBroom, 299 Kan. 731, 746, 325 P.3d 1174 (2014). A court considers nine factors in deciding whether community prejudice has reached levels warranting a change of venue under K.S.A. 22-2616(1):"[1] the particular degree to which the publicity circulated throughout the community; [2] the degree to which the publicity or that of a like nature circulated to other areas to which venue could be changed; [3] the length of time which elapsed from the dissemination of the publicity to the date of trial; [4] the care exercised and the ease encountered in the selection of the jury; [5] the familiarity with the publicity complained of and its resultant effects, if any, upon the prospective jurors or the trial jurors; [6] the challenges exercised by the defendant in the selection of the jury, both peremptory and for cause; [7] the connection of government officials with the release of the publicity; [8] the severity of the offense charged; and [9] the particular size of the area from which the venire is drawn." State v. Higgenbotham, 271 Kan. 582, 592, 23 P.3d 874 (2001). On the record before the court, the first, second, fifth, and eighth factors favored transfer of venue out of Johnson County at the time Judge Anderson ruled on the motions. The first factor weighed in favor of venue change because Dahl's surveys evidenced widespread circulation of the pretrial publicity throughout the community. ThePage 76 second factor weighed slightly in favor of changing venue as the surveys demonstrated that case recognition was not as extensive in Harvey and Ellis Counties. Even so, recognition of the case outside the venue of origin was extremely high, with 80 percent of Harvey County residents and 64 percent of Ellis County residents expressing recognition of the case. Thus, the weight of this factor in the overall analysis is diminished. As to the fifth factor, Dahl's venue study suggests media coverage had an effect on prospective jurors because 67 percent of respondents believed defendant was "probably" or "definitely" guilty. Regarding the eighth factor, Robinson was charged with two counts of capital murder and one count of first-degree murder. "[T]he most serious charged offenses could not have been more severe or their potential consequences more irreversible." Carr, 300 Kan. at 82. Five factors, including the third, fourth, sixth, seventh, and ninth, favored denial of each of defendant's motions for venue change. The third factor weighed against a change of venue as more than 2 years had lapsed between the time the story first broke in June 2000, when media coverage was at its height, and Robinson's trial in October 2002, when coverage had dissipated. The fourth factor weighed heavily against a change of venue because Judge Anderson took great care in designing and implementing his four-phase jury selection process. The sixth factor, challenges exercised, weighed in favor of denying a venue change. Judge Anderson granted 92 of defendant's 100 challenges asserted on pretrial publicity grounds. Of those jurors unsuccessfully challenged, all but one, Juror 39, was removed by peremptory challenge. Regarding the seventh factor, the media coverage was not materially connected to government officials. Robinson suggests that the prosecutor participated in press conferences, but none of the media-published facts defendant contends to be uniquely prejudicial were connected to the prosecution. Finally, the ninth factor weighed against a venue change because Johnson County had one of the largest population bases in the state from which to draw the venire.Page 77 The statutory venue challenge in Carr provides a useful comparison because there the same expert witness produced nearly identical survey results in a capital murder trial situated in one of the largest metropolitan areas in the state. In every relevant category (case recognition, opinion of guilt, and strength of evidence), the survey responses in Carr revealed case recognition and prejudgment at levels higher than or equal to those in this case. 300 Kan. at 49. Even so, the majority held that Judge Paul Clark did not abuse his discretion under K.S.A. 22-2616 in denying defendants' motions for venue change. 300 Kan. at 82. Given the similarity between the two cases, Carr offers compelling support for Judge Anderson's rulings. In fact, the rulings are all the more defensible here because, unlike Carr, Robinson's venue expert, Dillehay, opined that enhanced voir dire could effectively inoculate the effects of extensive pretrial publicity. While Dillehay believed "enhanced voir dire" would be infeasible from an administrative perspective, Judge Anderson was undaunted, implementing the very type of voir dire process Dillehay described. The process was lengthy but, in hindsight, proved highly effective in identifying and removing those rendered unqualified by their exposure to pretrial publicity. Our other case precedents offer additional support for Judge Anderson's rulings. See State v. Longoria, 301 Kan. 489, 510-12, 348 P.3d 1128 (2015) (reasonable person could have agreed with denial of motion to change venue despite fact that 97 percent of respondents recognized the case and some panelists held strong opinions of guilt); McBroom, 299 Kan. at 750-52 (no error in denial of venue change where nearly 70 percent of respondents believed defendant "probably" or "definitely" guilty); State v. Verge, 272 Kan. 501, 505-08, 34 P.3d 449 (2001) (no error in denying venue change where 96.7 percent of Dickinson County residents recalled the case; 71.7 percent had talked about the case; and 64 percent believed Verge was "definitely" or "probably" guilty); Higgenbotham, 271 Kan. at 593-95 (no error in denial of venue change wherePage 78 95.7 percent of Harvey County respondents recalled the case, 60.6 percent believed defendant was guilty, and 53 percent believed there was evidence of guilt); State v. Jackson, 262 Kan. 119, 129-32, 936 P.2d 761 (1997) (finding no error in denial of venue change where 89.7 percent of respondents recalled the case and 60 percent had formed opinion of guilt); State v. Anthony, 257 Kan. 1003, 1007, 1014-15, 898 P.2d 1109 (1995) (affirming denial of motion to change venue where 97 percent of Salina residents had heard of case, 63.8 percent felt evidence of guilt was strong or overwhelming, and more than half unsure of impartiality); State v. Swafford, 257 Kan. 1023, 1035-36, 897 P.2d 1027 (1995) (companion case to Anthony). Given the mix of evidence on the nine factors relevant to K.S.A. 22-2616(1) and recognizing that some factors weighed in favor of venue change, while others weighed against such relief, we conclude that reasonable judges could have agreed with Judge Anderson's decision to deny the requested motions to change venue under the statute. See Longoria, 301 Kan. at 512; Carr, 300 Kan. at 84. Thus, we find no abuse of discretion.Presumed Prejudice On appeal, defendant advanced only two theories supporting his venue challenge: actual prejudice under the Sixth Amendment and abuse of discretion under Kansas' venue change statute. However Robinson's first motion to change venue on Sixth Amendment grounds was pursued prior to voir dire預 point at which a claim of actual prejudice under the Sixth Amendment was premature. Defendant's supporting memorandum relied, in part, on a presumed prejudice theory. Furthermore, in a Rule 6.09 (2014 Kan. Ct. R. Annot. 52) letter to this court, defendant cites the United States Supreme Court's most recent opinion addressing presumed prejudice, Skilling v. United States, 561 U.S. 358, 381-85, 130 S. Ct. 2896, 177 L. Ed. 2d 619 (2010).Page 79 "[Because this is a death penalty case, this court is empowered to notice and discuss unassigned potential errors under K.S.A. 201[4] Supp. 21-6619(b)." Carr, 300 Kan. at 16. Independently, the Kansas statute compels the court, with regard to sentence, to determine "[w]hether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor." K.S.A. 2014 Supp. 21-6619(c)(1). In the interests of justice, we consider presumed prejudice as a potential unassigned error on appeal. Presumed prejudice occurs "'where the pretrial publicity is so pervasive and prejudicial that we cannot expect to find an unbiased jury pool in the community. We "presume prejudice" before trial in those cases, and a venue change is necessary.'" Carr, 300 Kan. at 57. In deciding whether to presume prejudice, courts consider seven factors enunciated in Skilling, 561 U.S. at 381-85:"(1) media interference with courtroom proceedings; (2) the magnitude and tone of the coverage; (3) the size and characteristics of the community in which the crime occurred; (4) the amount of time that elapsed between the crime and the trial; (5) the jury's verdict; (6) the impact of the crime on the community; and (7) the effect, if any, of a codefendant's publicized decision to plead guilty." Carr, 300 Kan. at 62 In reviewing presumed prejudice claims, "we apply a mixed standard of review, examining the trial court's findings of fact for substantial competent evidence and the ultimate legal conclusion drawn from the facts謡hether to presume prejudice妖e novo." Longoria, 301 Kan. at 506. Turning to the first Skilling factor, defendant argued in his second and third renewed motions to change venue that a media circus spilled into the courtroom.Page 80 However, as set forth in defendant's actual prejudice challenge, defendant failed to demonstrate any prejudice from the T-shirt and Olathe Daily News incidents giving rise to these motions. As to the second Skilling factor, Robinson argues the media reported prejudicial facts that were inadmissible at trial, such as Robinson's white-collar criminal history; his connection to other missing persons; his involvement with other women; and his prosecution for fraud and murder in Missouri. However, the presumed prejudice doctrine "cannot be made to stand for the proposition that juror exposure to information about a state defendant's prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process." Murphy, 421 U.S. at 799. The pretrial publicity included in the record was predominantly fact-based reporting. See Longoria, 301 Kan. at 507 (factor weighs against venue change where reporting is more fact based than inflammatory). There were no "smoking-gun" reports, such as confessions of defendant, results of lie detector testing, or defendant's offer to plead guilty to avoid the death penalty. See Skilling, 561 U.S. at 382-83 (the lack of "evidence of the smoking-gun variety" weighed against a finding of presumed prejudice). Moreover, Dahl's venue study suggested that some of these media facts were not widely recognized by the community or the level of recognition was similar to that in other venues. The third Skilling factor葉he size and characteristics of the community謡eighed against a finding of presumed prejudice because Johnson County is one of the largest counties in the state, with close to half a million residents. Regarding the fourth Skilling factor, more than 2 years had elapsed from the time the story first broke and the start of trial. Even so, survey results more than 1 year after Robinson's arrest showed a high degree of case recognition. This factor is inconclusive orPage 81 weighed slightly against a finding of presumed prejudice. See Longoria, 301 Kan. at 507-08 (factor weighed against venue change where case recognition high but memory of details had faded); Carr, 300 Kan. at 68 (factor inconclusive where substantial time elapsed but evidence of juror recollection remained high at voir dire). The fifth Skilling factor, the jury's verdict, was unknown at the time the district judge ruled and carries no weight in the analysis. See Longoria, 301 Kan. at 508. On the sixth Skilling factor, none of the publicity of record clearly addresses the impact of the crimes on the community. The record includes two articles warning of the dangers of online dating in the aftermath of the crimes, but these reports reflect opinions of a law enforcement officer and a journalist rather than community-wide sentiment. On the other hand, Dahl's venue study revealed a high level of case recognition, suggesting the crimes generated interest and were followed by members of the community. Thus this factor may have weighed slightly in favor of a finding of presumed prejudice. The seventh and final Skilling factor用ublicized confession of a codefendant妖oes not factor into the analysis because Robinson alone was charged with the offenses in this action and the State never charged any codefendant. Cf. Carr, 300 Kan. at 69. In the end, only the sixth Skilling factor weighed in favor of a finding of presumed prejudice. The fifth and seventh factors were not relevant to the analysis, and the fourth factor was inconclusive at best. The first, second, and third Skilling factors weighed against a finding of presumed prejudice at the time Judge Anderson ruled on each motion. "The bar facing the defendant wishing to prove presumed prejudice from pretrial publicity is extremely high." United States v. McVeigh, 153 F.3d 1166, 1182 (10th Cir. 1998), disapproved on other grounds by Hooks v. Ward, 184 F.3d 1206 (10th Cir. 1999).Page 82 Relief is granted only in those rare cases "where publicity 'created either a circus atmosphere in the court room or a lynch mob mentality such that it would be impossible to receive a fair trial.'" Goss v. Nelson, 439 F.3d 621, 628 (10th Cir. 2006) (quoting Hale v. Gibson, 227 F.3d 1298, 1332 [10th Cir. 2000]). Based on our de novo review, and considering the Skilling factors in light of the evidence, the record does not establish that "an irrepressibly hostile attitude pervaded the community." Stafford v. Saffle, 34 F.3d 1557, 1567 (10th Cir. 1994). Thus Judge Anderson did not err in failing to presume prejudice under the Sixth Amendment. See Longoria, 301 Kan. at 508; Carr, 300 Kan. at 65-70.2. CONTINUANCE Defendant next challenges the trial court's denials of his continuance motions. He believes Judge Anderson denied them to penalize him for exercising his right to counsel of choice. Independently, Robinson argues the rulings constitute an abuse of discretion.Additional Factual and Procedural Background On June 14, 2000, Judge Anderson appointed Kansas' Death Penalty Defense Unit (DPDU) to represent Robinson. The State filed its notice to pursue a death penalty phase sentencing proceeding, along with its alleged aggravating circumstance on March 2, 2001. The DPDU actively litigated the case for 13 months, investigating the charges, filing 39 substantive motions, and defending Robinson at preliminary hearing. 1. Substitution of Counsel On July 18, 2001, attorney Bob L. Thomas entered his appearance as attorney of record for Robinson. Later that day, the DPDU filed a motion to withdraw. At the July 23, 2001 hearing, Judge Anderson made inquiry regarding Thomas' qualifications.Page 83 Thomas had practiced as a licensed attorney for about 1 year before entering his appearance in this case. In the year, he had served as lead counsel on two noncapital jury trials. Thomas had hired a private investigator and planned to add several legal assistants but confirmed he would be the only attorney on the defense team. Judge Anderson observed that Thomas did not meet Kansas Board of Indigents' Defense Services' qualification standards for appointment to a capital case and that Robinson's Sixth Amendment right to representation by counsel of choice had to be tempered by his right to competent and effective counsel. To balance these competing interests, the district judge explored the possibility of having the DPDU remain in the case as cocounsel. Thomas and defendant were willing to consent to such an arrangement, with the understanding that Thomas would serve as lead counsel. The DPDU declined, arguing that the arrangement was unworkable and that Robinson was no longer eligible for DPDU assistance. At a continued hearing on July 27, 2001, Judge Anderson granted the DPDU's motion to withdraw and announced his intention to appoint capital defense qualified cocounsel to assist Thomas. Neither Robinson nor Thomas objected. On August 2, the trial court entered orders appointing Patrick Berrigan and Sean O'Brien, both of whom had extensive capital defense litigation experience, as cocounsel in this case for the purpose of representing Robinson "[d]uring the prosecution and trial of said felony defendant, including sentencing." No party objected to these orders. Judge Anderson set the matter over for 1 month to give the newly formed defense team time to review motions and to give Berrigan time to recover from heart bypass surgery. O'Brien's associate attorney, Joseph Luby, and Berrigan's associate attorney, Jason Billam, also served as members of Robinson's defense team.Page 84 2. First Motion for Continuance On September 20, 2001, Robinson filed his first motion to continue trial, citing extensive discovery, cocounsel's commitment in other cases, and the need to develop a mitigation case擁ncluding gathering mitigation evidence; investigating the State's aggravating circumstance; considering the possibility of psychological and neurological evaluations; interviewing defendant's family for testimony in the sentencing phase; and conducting a thorough background investigation of Robinson's educational, medical, employment, and criminal histories擁n support of the requested relief. Defense counsel claimed it needed "as much as a year to adequately prepare this case for trial" and requested the setting be moved from January 14 to September 16, 2002. At the September 21, 2001, hearing, Judge Anderson emphasized that if he granted the continuance, the new trial date would be a firm setting and no further continuance would be granted absent "extraordinary" circumstances. After confirming that defense counsel had evaluated their schedules and understood any new trial date would be firm, Judge Anderson granted the motion and reset trial for September 16, 2002. 3. Thomas' Withdrawal and Second Motion for Continuance On February 21, 2002, Thomas filed a motion to withdraw after receiving the State's February 13 supplemental discovery, which included documents indicating Marvin Ray, Thomas' former client, had offered to be a cooperating witness for the State. Later that same day, Robinson filed his second motion for continuance, arguing that counsel Berrigan and O'Brien (appointed counsel) and Thomas (retained counsel) had an agreement as to the division of labor in the case, whereby retained counsel was handling the guilt phase and appointed counsel the penalty phase. Robinson arguedPage 85 Thomas' withdrawal, combined with appointed counsels' obligations in other cases, made it impossible to prepare Robinson's defense before the September 16, 2002, trial setting. Appointed counsel requested a 4-month continuance. After confirming with Robinson that he was discharging Thomas as counsel of record, Judge Anderson granted Thomas' motion to withdraw and denied the continuance motion during a February 28 hearing. 4. Robinson's Third Request for Continuance On July 18, 2002, Robinson filed a third motion for continuance, alleging that discovery complications made it impossible to prepare Robinson's guilt phase defense before the September trial setting. On July 25, the trial court held an evidentiary hearing. a. Discovery Delays Phil Gibson, an investigator for the defense team, testified that it would take substantial time to complete witness interviews because of the State's massive endorsed witness list, which included roughly 600 witnesses, 79 of whom had been endorsed after the February 2001 preliminary hearing. However, the State had later provided a "will call" list that narrowed down those most likely to testify to around 200. Dean Stettler, Robinson's DNA expert, testified to delays related to the State's DNA disclosures. Stettler was engaged to evaluate law enforcement's DNA testing procedures and advise the defense on the need for independent testing. On March 22, 2002, he received three, 4-inch binders containing well in excess of 100 pages of law enforcement lab reports. The documents were in Bates-stamp order, but Stettler thought the Bates-stamp order was random. He said it took him 3 weeks to organize the documents in a logical order.Page 86 Once the reports were organized, Stettler met with members of the JOCO Lab and found 46 reports that had not been included in the State's disclosures. District Attorney Paul Morrison testified that the DNA testing was handled exclusively by the KCMO Lab and he did not give Stettler the 46 reports from the JOCO Lab because they pertained to hair analysis, tire track impression work, and latent print examinations, not DNA testing. Nevertheless, Stettler felt the reports might be useful and received copies the same day Stettler learned of the reports' existence. Stettler also reviewed the KCMO Lab's case file and confirmed the State had produced all reports. However, Stettler wanted to review the supporting data and requested the same. The KCMO Lab voluntarily produced this data on CD-ROM. Stettler did not maintain a current version of the software necessary to view the material electronically however, and it took him a month to find an independent lab to print the material for him. Stettler admitted he had a complete copy of the files maintained by both crime labs within a few weeks of receiving the State's disclosures. At the time of the hearing, Stettler had been in possession of the files for nearly 3 months and the CD-ROM for more than 10 weeks. Stettler said he could complete his work and advise the defense team on the need for independent testing within 3 to 4 weeks. On September 5, 2002, defense counsel informed the district judge that DNA samples had been sent to a lab for independent testing. No results were introduced at trial; nor are they included in the record on appeal.Page 87 b. Delay Related to the Division-of-Labor Agreement Thomas offered testimony regarding the need for continuance in light of defense counsels' division-of-labor agreement. He confirmed that the defense team had agreed he would handle the guilt phase, while appointed counsel, Berrigan and O'Brien, would handle the penalty phase. Thomas said the defense conducted work consistent with this division of labor agreement and committed to the September trial setting in reliance on it. Thomas also testified to the events giving rise to his withdrawal or discharge. Thomas had represented Marvin Ray in another matter before entering his appearance as Robinson's counsel in the summer of 2001. Shortly thereafter, he asked prosecutor Morrison whether the State had any "jail-house snitches," specifically mentioning Ray. Morrison said a few inmates, including Ray, had contacted his office, but Morrison believed Ray lacked credibility and the State was not interested in his testimony. The State made no further mention of Ray until February 2002, when it produced a letter Ray had written and other documents. Morrison testified the Ray letter and documents were disclosed with sufficient time to prepare Robinson's defense. Ray first contacted his office, offering to testify against Robinson, around July 2001. On October 4, the prosecution subpoenaed documents from Ray, and in response, correctional officials searched Ray's cell and found documents responsive to the subpoena. Among these documents, they found a letter in which Ray described how he and two other people allegedly transported two female bodies to a farm near LaCygne and placed them in barrels in exchange for drugs. Morrison disclosed the Ray documents 7 months in advance of trial and confirmed that the prosecution had no intention of calling Ray or introducing the documents at trial. Neither party, in fact, called Ray or introduced his documents at trial.Page 88 The court denied the motion for continuance. 5. Robinson's Fourth Motion to Continue Trial On August 30, 2002, nearly 2 weeks before trial, defense counsel filed a motion for continuance or, alternatively, for leave to withdraw, arguing that several discovery problems continued to delay preparations. Defense counsel also claimed to need additional time to develop Robinson's penalty phase defense, explaining they had hired a forensic social worker in January 2002 to conduct an investigation of Robinson's background and social history but learned in late July that the expert had made no progress because of a disabling back injury suffered in a car accident. Defense counsel hired a new mitigation expert, Scarlet Nerad. Although she had already commenced work, defense counsel argued there was insufficient time for her to complete it before trial. Robinson requested an 8-month continuance to complete a social history report and a comprehensive mental evaluation. At the September 5 hearing, Robinson offered Nerad's affidavit under seal, which the district judge reviewed in camera over the State's objection. In the affidavit, Nerad claimed that her preliminary investigation suggested Robinson had endured chronic and life-threatening violence, abandonment, and neglect at the hands of his caretakers. When Robinson was 5 years old, his mother began assaulting him several times a week, without provocation傭eating him severely, threatening to kill him, and telling him she wished he were dead or never born. As a small child, Robinson grew deeply attached to his infant brother. The child fell ill and died, and Robinson's mother blamed him for the death. Robinson was devastated by the loss of his brother and shattered by the false accusations lodged by his mother. As Robinson grew older, the abuse escalated, often leaving him unconscious or bedridden, and his mother isolated him from other family members.Page 89 According to Nerad, such suspected abuse left Robinson vulnerable to psychiatric diseases such as posttraumatic stress disorder (PTSD). In fact, she claimed Robinson met the criteria for PTSD. Nerad also believed Robinson exhibited symptoms of dissociative and mood disorders, evidenced by bouts of psychosis, extreme mood fluctuations, flat affect, and episodes of mania. Nerad's affidavit did not establish her qualifications to diagnose such conditions. Nerad made clear that her findings were preliminary and that she needed to complete substantial additional investigation to verify and document the abuse and its effect on Robinson before she could deliver a completed background and social history report. She said she could not complete it in time for the September trial setting. She also noted that other medical professionals would need her report to complete Robinson's comprehensive mental assessment. The continuance was denied. 6. Request for Continuance at the Outset of the Penalty Phase On September 12, 2002, the defense filed a motion to transport Robinson to the University of Kansas Medical Center (KU Medical Center) for MRI and PET scans. The defense argued the testing was necessary for its expert, Dr. Dorothy O. Lewis, a professor of psychiatry at New York University School of Medicine, to conduct a psychiatric evaluation of Robinson. Defense counsel offered the affidavit of Lewis under seal in support of the motion. Lewis declared that, based on her preliminary review, there was reason to believe Robinson suffered from "a bipolar mood disorder"; he "was severely physically andPage 90 emotionally abused throughout childhood"; "as a result of this maltreatment, he experiences episodic dissociative states"; "as many as four generations of family members may have suffered" similar mental illness; a 1991 MRI revealed brain abnormalities, "allegedly a result of transient ischemic attacks"; and "Robinson . . . cannot appreciate the nature and strength of the evidence" against him. Lewis also said that, in order to make a credible diagnosis, she needed time to complete additional testing and evaluation, including psychiatric interviews; an MRI to assess possible brain changes over time; a PET scan to assess frontal lobe function; a neurologic evaluation; a comprehensive neuropsychological test battery; and a review of Robinson's background and social history. Without such information, Lewis asserted, it would be impossible to render an opinion regarding Robinson's mental functioning. The trial court granted the motion during a September 12 status conference. On October 31, after the jury had convicted Robinson on all charges, defendant moved for continuance of the penalty phase. Appointed counsel explained that they had decided not to have Robinson transported to KU Medical Center for an MRI and PET scan because there was simply insufficient time for experts to complete the testing and evaluation needed to render a qualified opinion regarding Robinson's mental functioning. The court denied the continuance.Constitutional Challenge Robinson argues the district judge refused to continue the trial as punishment or in retaliation for his decision to hire Thomas and discharge the DPDU, violating his right to due process. Although the argument is less than clear from the briefing, Robinson alsoPage 91 appears to suggest the trial court unconstitutionally burdened his Sixth Amendment right to counsel of choice by having him bear the risk that counsel would be unprepared. 1. Legal Framework and Standard of Review Robinson's challenge is founded on the Sixth Amendment right to counsel預 fundamental right guaranteed to all criminal defendants. Kimmelman v. Morrison, 477 U.S. 365, 374, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986). "It is hardly necessary to say that the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice." Powell v. Alabama, 287 U.S. 45, 53, 53 S. Ct. 55, 77 L. Ed. 158 (1932); see State v. Anthony, 257 Kan. 1003 1018, 898 P.2d 1109 (1995) ("An essential element of the Sixth Amendment's protection of the right to counsel is that a defendant must be afforded a reasonable opportunity to secure counsel of his or her choosing."). Not only is a defendant vested with the constitutional right to counsel of choice, but also due process prevents States from punishing or retaliating against a defendant for exercising this constitutional right. Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978) ("To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort."). However, "[n]ot every restriction on counsel's time or opportunity to investigate or to consult with his client or otherwise to prepare for trial violates a defendant's Sixth Amendment right to counsel." Morris v. Slappy, 461 U.S. 1, 11, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983). The Supreme Court has explained:"Trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except forPage 92 compelling reasons. Consequently, broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary 'insistence upon expeditiousness in the face of a justifiable request for delay' violates the right to the assistance of counsel. Ungar v. Sarafite, 376 U.S. 575, 589[, 84 S. Ct. 841, 11 L. Ed. 2d 921] (1964)." Morris, 461 U.S. at 11-12. We have recognized that a defendant's right to counsel of choice "cannot be manipulated to impede the efficient administration of justice." Anthony, 257 Kan. at 1019. Where defendants allege the deprivation of rights under the Constitution, our court reviews such challenges de novo. See State v. Chamberlain, 280 Kan. 241, 255, 120 P.3d 319 (2005) (determination of whether a statute violates the Constitution is a question of law over which we have unlimited de novo review); see also United States v. Hopkins, 509 Fed. Appx. 765, 770 (10th Cir. 2013) (unpublished opinion) (reviewing de novo whether judicial action violated Sixth Amendment right to counsel of choice). 2. The Due Process Challenge Robinson first contends that Judge Anderson's rulings were intended to punish defendant for the delay that resulted when he retained Thomas in place of the DPDU. The argument ignores and is entirely inconsistent with the fact that Judge Anderson accepted Thomas' entry of appearance and subsequently granted him a lengthy continuance. Thomas' filing of his entry of appearance provided Judge Anderson with a direct and immediate opportunity to subvert Robinson's right to counsel of choice. Thomas lacked the experience and resources to handle a capital defense alone, and Judge Anderson could have denied the entry of appearance altogether. See, e.g., United States v. Collins, 920 F.2d 619, 626 (10th Cir. 1990) (district court may deny a defendant'sPage 93 counsel of choice where attorney unable to provide competent representation). Instead, he gave effect to both of Robinson's Sixth Amendment interests葉he right to counsel of choice and the right to competent counsel傭y accepting Thomas' entry of appearance and appointing qualified cocounsel. Once Thomas was granted entry, Judge Anderson had a second opportunity to "punish" Robinson for retaining private counsel by denying his first motion for continuance. Instead, Judge Anderson granted the continuance, providing defense counsel roughly 1 full year to prepare for trial. Robinson makes no mention of these rulings. Instead, he focuses on the district judge's denial of subsequent motions for a second continuance. In these rulings, Judge Anderson mentions that the DPDU handled the case and was on track for a trial setting in early 2002, that Robinson discharged the DPDU by hiring Thomas, that the court appointed qualified cocounsel, and that the result was further delay. Robinson believes these comments evidence Judge Anderson's retaliatory motive. The argument lacks merit. When read in context, it is apparent that Judge Anderson referenced the DPDU and Robinson's decision to hire Thomas, not to blame Robinson for any delay resulting from that decision, but to summarize the sequence and timeline of events, highlight the purpose and scope of the appointment of cocounsel, and emphasize that Thomas and appointed counsel had the benefit of more than a year's worth of the DPDU's work on the case. The district judge's reference to the delay that followed Thomas' entry of appearance and the appointment of cocounsel was an accurate account. It also served to highlight that the district judge had granted a previous, lengthy continuance, a relevant factor in assessing whether defendant has established good cause for a subsequent continuance under K.S.A. 22-3401. See State v. Snodgrass, 252 Kan. 253, 264, 843 P.2d 720 (1992) (trial court did not abuse discretion in denyingPage 94 continuance where a prior continuance had been granted on eve of trial); United States v. Sharrak, 527 Fed. Appx. 383, 388 (6th Cir. 2013) (unpublished opinion) (whether court has granted previous continuances is an appropriate factor in analyzing subsequent motions). In each ruling, after outlining previous relevant events, Judge Anderson addressed the specific grounds asserted for the requested continuance and/or made findings and conclusions as to why defendant had failed to establish good cause. In the end, Judge Anderson denied each request for a second continuance because he believed there was adequate time to prepare the defense, especially considering the resources of the defense team and the fact that a lengthy continuance had been granted previously. The rulings were an appropriate exercise of lawful discretion and cannot be construed as retaliatory. See Anthony, 257 Kan. at 1019-20 (trial court did not abuse discretion or otherwise interfere with counsel of choice where it did not attempt to restrain counsel from entering the case and only declined the request to continue trial to allow new counsel time to prepare). 3. The Sixth Amendment Challenge Robinson next argues the district judge relied on a number of factual errors in denying his motions for continuance. While this argument sounds more akin to an abuse of discretion challenge, Robinson seems to suggest the trial court's alleged factual errors effectively placed an unconstitutional burden on his right to counsel of choice. Specifically, Robinson contends the district judge erred in fact, thereby burdening the right to counsel of choice, by: (1) finding that Robinson had discharged the DPDU; (2) minimizing the burden defense counsel experienced in managing discovery; and (3)Page 95 failing to account for the delay caused by the State's tardy and disorganized DNA testing disclosures. First, Robinson argues the district judge erroneously found that Robinson had discharged the DPDU. In the July 25, 2002 ruling denying defendant's third motion to continue trial, Judge Anderson said, "When Mr. Thomas got in this case, he got in it because the defendant discharged, essentially through hiring Mr. Thomas, the capital defense team and retained an attorney of his own choice." (Emphasis added.) Likewise, in the October 31, 2002, ruling denying defendant's motion to continue the penalty phase, Judge Anderson explained that "in the summer of 2001 Mr. Robinson chose to discharge the capital defense team provided to him by the State of Kansas. . . . and did so by retaining counsel, Mr. Thomas, who undertook to represent him at that time." (Emphasis added.) Judge Anderson's rulings indicate that Robinson effectively discharged the DPDU by retaining Thomas. The record supports this finding. During a July 23, 2001, in-camera proceeding, Judge Anderson discussed the status of defendant's representation in the presence of Robinson, the DPDU, and Thomas. During the proceeding, Judge Anderson confirmed that it was Robinson's desire to remove DPDU counsel and substitute Thomas as counsel in their place.

More importantly, whether the trial court characterized the DPDU's exit as a "discharge" or a "withdrawal" is a factual distinction without a legal difference. Judge Anderson did not deny any of defendant's motions based on a finding that the DPDU exited the case as a result of discharge, as opposed to withdrawal. Cf. State v. Nelson, 296 Kan. 692, 694, 294 P.3d 323 (2013) ("Judicial discretion is abused if judicial action . . . is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.").

Page 96

Moreover, it is unclear how the characterization of the DPDU's exit as a discharge instead of a withdrawal could or would have placed any additional burden on Robinson's Sixth Amendment right to counsel of choice.

Second, Robinson argues Judge Anderson improperly "minimized" testimony regarding the delay created by the number of witnesses endorsed by the State. Judge Anderson addressed this issue specifically in denying the third motion for continuance, finding that Kansas law compelled the prosecution to endorse all potential witnesses regardless of the extent of their knowledge and that the defense team's resources, including four attorneys, an investigator, and six legal interns, were sufficient to overcome the discovery complications and complete preparations in the time allotted for trial. These findings were supported by substantial competent evidence in the record, and we cannot say that no reasonable judge would have agreed with Judge Anderson's ruling. Robinson's real complaint is that Judge Anderson did not assign his evidence the weight he believed it deserved. Such a dispute does not establish grounds for error. See In re Estate of Farr, 214 Kan. 51, 68, 49 P.3d 415 (2002) ("It is the factfinder's function to determine the weight and credibility of the witnesses. Appellate courts will not pass upon the credibility of witnesses or reweigh conflicting evidence.").

Finally, Robinson believes Judge Anderson minimized the prejudice occasioned by the State's tardy and disorganized disclosures to defendant's DNA expert. Again, Judge Anderson addressed this issue specifically in denying the third motion for continuance, explaining that any delay the expert experienced did not prevent appointed counsel from continuing to work on other aspects of Robinson's defense. On appeal, Robinson admits the expert's delay did not impede counsel's ability to prepare for trial but argues it prevented the defense from completing an independent DNA analysis.

Page 97

We find the argument unavailing. The defense team did not pursue independent testing until after the State completed and disclosed its DNA lab reports. Thereafter, much of the delay Stettler experienced was the result of his decisions on time management. We have found no error in the denial of continuance under similar circumstances. See State v. Lewis, 299 Kan. 828, 846-48, 326 P.3d 387 (2014); Snodgrass, 252 Kan. at 264.

Moreover, during the July 25 evidentiary hearing, Stettler admitted he could complete his work and advise the defense within 3 to 4 weeks様eaving adequate time before trial. On September 5, defense counsel informed Judge Anderson that samples had been sent to a lab for independent analysis, but the results of that testing were never introduced at trial or included in the record on appeal. Thus the district judge had no basis upon which to make a finding of good cause warranting a continuance. See State v. Daigle, 220 Kan. 639, 643-44, 556 P.2d 400 (1976) (affirming denial of continuance where defendant failed to show relief would result in favorable evidence from a completed fracture analysis), cert. denied 430 U.S. 983 (1977); see also Coy v. Renico, 414 F. Supp. 2d 744, 777 (E.D. Mich. 2006) (continuance properly denied where petitioner failed to show independent DNA testing would yield exculpatory evidence). Nothing in the record supports Robinson's claim that discovery complications foreclosed independent DNA testing or use of the results of such testing at trial. In fact, the evidence strongly suggests otherwise.

In the end, we hold that the denial of continuance did not violate Robinson's due process or Sixth Amendment rights.

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Statutory Challenge

In addition to his constitutional challenges, Robinson argues the trial court abused its discretion in denying his requests for continuance. For purposes of clarity, the challenge is divided into two subissues: (1) whether the trial court abused its discretion in denying a continuance to allow counsel additional time to prepare the guilt phase defense; and (2) whether the trial court abused its discretion in denying a continuance to allow counsel additional time to prepare the penalty phase defense.

1. Legal Framework and Standard of Review

K.S.A. 22-3401 provides that "[c]ontinuances may be granted to either party for good cause shown." "In a criminal case, the decision to continue a case lies within the sound discretion of the district court." State v. Haney, 299 Kan. 256, 259, 323 P.3d 164 (2014). Thus, we review a denial of continuance for abuse of discretion. State v. Burnett, 300 Kan. 419, 436, 329 P.3d 1169 (2014). Judicial discretion is abused where judicial action is arbitrary, or based on an error of law or fact. State v. Warrior, 294 Kan. 484, 505, 277 P.3d 1111 (2012). The party asserting abuse of judicial discretion has the burden to prove an abuse of discretion on appeal. State v. Smith-Parker, 301 Kan. 132, 161, 340 P.3d 485 (2014). Additionally, where a defendant claims the denial of continuance interfered with his or her ability to present a defense, we review the question de novo. Lewis, 299 Kan. at 846.

The legal standard for granting a continuance is "good cause" shown. K.S.A. 22-3401; State v. Carter, 284 Kan. 312, 318, 160 P.3d 457 (2007). However, where a continuance is sought to retain new counsel, we consider the following five factors:

"(1) whether a continuance would inconvenience witnesses, the court, counsel, or the parties; (2) whether other continuances have been granted; (3) whether legitimate reasons


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exist for the delay; (4) whether the delay is the fault of the defendant; and (5) whether denial of a continuance would prejudice the defendant." Anthony, 257 Kan. at 1019.


Robinson argues the Anthony factors should apply to his challenge. However, Anthony applies in situations where defendant seeks a continuance for the purpose of retaining new counsel, thereby placing the defendant's Sixth Amendment right to counsel of choice in competition with the court's discretionary power to deny continuances. 257 Kan. at 1019. At the time the court denied the defendant's second continuance motion, appointed counsel, Berrigan and O'Brien, had served as counsel to Robinson for nearly 7 months. Robinson never requested or retained new counsel after Thomas' discharge, and appointed counsel represented him throughout both phases of trial. As such, Robinson's Sixth Amendment right to counsel of choice was never implicated and Anthony's five-factor test does not apply. See State v. Ly, 277 Kan. 386, 391, 85 P.3d 1200 (five-factor test did not apply where defendant "did not request a continuance so he could retain new counsel"), cert. denied 541 U.S. 1090 (2004).

2. Continuance to Provide Additional Time to Prepare Guilt Phase

Robinson argues the trial court erred in denying his requests for a second continuance in the face of evidence establishing: (1) the division-of-labor agreement, whereby retained counsel, Thomas, was to prepare the guilt phase defense and appointed counsel, Berrigan and O'Brien, the penalty phase defense; (2) the unexpected discharge or withdrawal of Thomas; and (3) the impact of Thomas' withdrawal on trial preparations.

The record includes competing evidence regarding the propriety of a continuance notwithstanding Robinson's arguments. Although defense counsel took it upon themselves to divide the labor, Judge Anderson was unaware of this decision. His orders appointing counsel specified that Berrigan and O'Brien were to represent defendant at trial and through sentencing. Judge Anderson found the division-of-labor agreement

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frustrated the purpose of his orders. Also, as Judge Anderson explained, conflicts and other matters giving rise to the withdrawal of counsel are not unforeseeable, casting further doubt on the reasonableness of defense counsels' reliance on this division of labor. There is also reason to question how strictly counsel adhered to the arrangement. Soon after their appointment, Berrigan and O'Brien signed pleadings and motions, played a leading role at motions hearings and status conferences, and handled the examination of witnesses and argument at the January 2002 evidentiary hearing on the venue motion. All of these events were part of the guilt phase of the case.

The record also provides direct support for Judge Anderson's findings and conclusions. While Thomas' withdrawal certainly increased appointed counsel's workload and responsibility, they were not starting from scratch. Berrigan and O'Brien had served as counsel to Robinson for roughly 7 months prior to Thomas' withdrawal, and they had another 7 months to prepare thereafter, thanks to Judge Anderson's order granting Robinson's first continuance motion. Appointed counsel also had the benefit of the preparation Thomas and the DPDU had done over the course of nearly 2 years. After Thomas' withdrawal, O'Brien's associate attorney Luby entered his appearance for the defense, and Robinson never sought appointment of new counsel.

We have not previously reviewed the denial of a continuance under the particular facts presented here. Even so, Anthony provides some useful parallels under similar facts. There, defendant moved for a 2-month continuance 18 days before trial so that defendant's counsel of choice, Charles Atwell, could have adequate time to become involved in the case and prepare for trial. Atwell informed the court he could not accept appointment without a continuance. Defendant had already received a previous continuance. The trial court granted defendant leave to substitute Atwell as counsel but denied the continuance. We found no abuse of discretion in the ruling. 257 Kan. at 1019-20.

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Authority from other jurisdictions lends more direct support for Judge Anderson's rulings. See United States v. Messervey, 317 F.3d 457, 462 (5th Cir. 2002) (no error in denying 4-month continuance after withdrawal; court had granted previous continuances giving counsel a full year to prepare and new counsel benefitted from predecessor's preparation); People v. Johnson, 205 Ill. 2d 381, 406-07, 275 Ill. Dec. 820, 793 N.E.2d 591 (2002) (no error in denial of continuance to allow counsel additional time to prepare defense in capital murder prosecution where trial court had granted previous continuances totaling 55 days and public defender already had prepared for 3 months); Flinn v. State, 563 N.E.2d 536, 543 (Ind. 1990) (no error in denial of continuance to give new counsel more preparation time; new counsel had benefit of predecessor's 16 months of preparation); State v. Sanders, 92 Ohio St. 3d 245, 276, 750 N.E.2d 90 (2001) (no error in denial of continuance to allow new lead counsel time to prepare defense in capital murder prosecution; newly appointed counsel had 2 full months to prepare and cocounsel had been on the case for 15 months); State v. Hester, 324 S.W.3d 1, 35-36 (Tenn. 2010) (no error in denial of continuance in capital murder case where one of defendant's two lawyers withdrew; remaining attorney had served as lead counsel for almost 3 years; case had encountered lengthy delays).

In light of the record here, we conclude a reasonable factfinder could have agreed with Judge Anderson's rulings. Therefore, we hold that the district judge properly exercised his lawful discretion by refusing requests for a second continuance to prepare the guilt phase defense.

3. Continuance to Provide Additional Time to Prepare Penalty Phase

Robinson also contends he was entitled to a continuance so counsel could fully develop his mitigation defense.

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The problem with Robinson's challenge is he failed to make an adequate proffer as to what mitigation evidence would have been developed had Judge Anderson granted a second continuance. We discussed the movant's duty to make such a proffer in Burnett, 300 Kan. 419, where defendant requested a continuance in order to prepare a redacted and admissible version of the videotaped recording of his police interview. Defendant argued the district court's refusal to grant a continuance denied him a defense at trial because without the video recording, he was unable to impeach law enforcement testimony regarding the interview. However, defendant did not specify "how [law enforcement officer's] testimony was inconsistent with the statements recorded on the video or even explain how [law enforcement officer's] testimony could have been impeached by the video." 300 Kan. at 438. We held that "[w]ithout specific references to how the video would have bolstered his defense or impeached [law enforcement officer's] testimony, Burnett ha[d] failed to show that 'good cause' supported his request for a continuance to prepare a redacted version of the video." 300 Kan. at 438.

The same principle holds true in the context of sentencing. In State v. Beaman, 295 Kan. 853, 286 P.3d 876 (2012), defendant sought a sentencing continuance to research an Eighth Amendment argument under Jessica's Law that might have applied at sentencing. In affirming the denial of continuance, we explained: "[S]imply arguing that there 'may' be an issue worthy of another motion is insufficient to justify a continuance. Mere speculation that with more time something favorable may happen for the defendant does not constitute good cause. [Citation omitted.]" 295 Kan. at 864.

We thus conclude it would be unacceptably speculative to presume their preliminary findings would be consistent with those produced in a final analysis. Here, Robinson offered the affidavits of Nerad and Lewis in support of their motions for continuance to develop mitigation evidence. Both speculated, based on their initial

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reviews, that Robinson may have suffered abuse as a child and impairment to his mental functioning. Nevertheless, these findings were preliminary. Both Nerad and Lewis made clear that they could not render qualified and reliable opinions on the subjects absent further investigation. Defense counsel implicitly acknowledged the unreliability of these experts' preliminary findings during posttrial argument, explaining the defense did not call Nerad or Lewis as witnesses because a "half-baked" mitigation defense would have been worse than no defense at all.

Counsel conceded at oral argument that defendant failed to make a proffer of the evidence that would have been introduced in the event of a continuance. We cannot find fault in Judge Anderson's decisions in the absence of such a showing. See People v. Doolin, 45 Cal. 4th 390, 451, 87 Cal. Rptr. 3d 209, 198 P.3d 11 (2009) (trial court did not err in denying penalty phase continuance to allow defendant to develop childhood abuse issues; defendant "made no showing that he could produce specific, relevant mitigating evidence within a reasonable time"); People v. Jenkins, 22 Cal. 4th 900 1038, 95 Cal. Rptr. 2d 377, 997 P.2d 1044 (2000) (court within its discretion to refuse continuance to allow penalty phase consultant time to undertake investigation of character and background where defendant did not demonstrate it would produce specific relevant mitigation evidence); People v. Chapman, 194 Ill. 2d 186, 241-42, 743 N.E.2d 48 (2000) (trial court did not abuse discretion in denying 60-day continuance 3 weeks before trial to allow penalty phase expert to develop mitigation case where previous continuance had been granted and defendant failed to show how expert testimony would have added to the mitigation evidence); State v. Rimmer, 250 S.W.3d 12, 41 (Tenn. 2008) (no error in denying continuance to allow expert to develop mitigation evidence where defendant failed to show what, if any, mitigation evidence would have been uncovered had continuance been granted).

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Robinson, relying on Haney, 299 Kan. 256, suggests the mere possibility that a continuance might yield fruitful mitigation evidence establishes good cause for relief. In Haney, defendant negotiated an opportunity to pursue a durational sentencing departure in exchange for his nolo contendere plea to various sex offenses. Prior to sentencing, defendant sought a 1-month continuance to compensate for delays in funding for a sex offender evaluation expert. The trial court denied the motion, erroneously finding that such an evaluation was not relevant and that defendant could testify to the aberrational nature of his crimes without expert testimony. The Court of Appeals held that the district court abused its discretion but found the error harmless because defendant did not offer any evidence in support of the durational departure. We reversed, unable to "declare that the lost opportunity to present evidence in mitigation of punishment was harmless in this case." 299 Kan. at 262.

Robinson's reliance on Haney is misplaced. There, the district court's denial of continuance was founded on legally erroneous findings, and the Court of Appeal's declaration that the error was harmless would have deprived defendant of the very benefit that induced him to enter his plea agreement葉he opportunity to pursue a durational departure. No such facts are present here, and Haney does not alter Robinson's duty to make a proffer of the mitigation evidence he would have developed and presented had he been granted a continuance.

3. MOTIONS TO SUPPRESS

Defendant raises five issues related to the district court's denial of his motions to suppress evidence obtained pursuant to pen registers, wiretaps, search warrants, and warrantless trash searches. Specifically, Robinson contends: (1) District Judge Larry McClain was not neutral and detached; (2) he lacked jurisdiction to issue extraterritorial search warrants; (3) law enforcement officers exceeded their territorial jurisdiction; (4)

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law enforcement officers' trash searches violated defendant's reasonable expectation of privacy; and (5) wiretap orders were issued without a sufficient showing of necessity.

Additional Factual and Procedural Background

1. Judge McClain's Former Prosecution of Robinson

In the mid-1980s, McClain was a prosecutor in the Johnson County District Attorney's office. In 1984, he investigated a consumer complaint filed by the owners of Back Care Systems, International (Back Care), alleging Robinson defrauded Back Care through a bogus invoicing scheme through his company, Equi-plus.

In hopes of avoiding criminal prosecution, Robinson prepared four sham affidavits, all purportedly authored by vendors claiming the invoices were genuine. One affidavit appeared to be signed by Paula Godfrey, one of several missing persons connected to Robinson. After reviewing the affidavits, McClain told Robinson's attorney, Ronald Wood, that Robinson was the "master of the copying machine."

On March 29, 1985, McClain filed a criminal complaint, along with a supporting affidavit, charging Robinson with one count of felony theft by deception. McClain handled the Back Care case through preliminary hearing on May 29, 1985. On June 10, McClain was appointed to the District Court bench in Johnson County. Steven J. Obermeier assumed the prosecution of the Back Care case from that point forward. Obermeier endorsed Godfrey as a witness because she had purportedly signed one of the sham affidavits. At the time, Obermeier did not know Robinson was a suspect in Godfrey's disappearance.

Obermeier tried the Back Care case in January 1986. The State called Judge McClain as a witness to establish that the affidavits were shams and to lay foundation to

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admit them into evidence. The trial judge, however, limited Judge McClain's testimony to foundation issues only, and Judge McClain did not testify beyond that boundary. The jury convicted Robinson on the theft by deception count.

Just after Robinson's conviction, Obermeier prosecuted a second case against him, the Kuti case, which arose from a phony land deal Robinson concocted to defraud investors. Judge McClain was endorsed as a witness in the Kuti case because Obermeier believed Robinson's failure to disclose the Back Care prosecution constituted a material omission, an essential element of the securities fraud count pled in that case. Judge McClain had no other involvement in the prosecution of the Kuti case.

Robinson entered a plea agreement in the Kuti case, and the trial judge joined the Back Care and Kuti cases for purposes of sentencing. In his sentencing brief, Obermeier made reference to the fact that Robinson was the last person seen with Stasi before her disappearance, but Obermeier had not received this information from Judge McClain.

In September 1987, when Robinson first became eligible, Obermeier filed a recommendation to deny parole. Obermeier attached then-prosecutor McClain's affidavit from the Back Care case in support of the recommendation. Judge McClain had no involvement in preparing Obermeier's recommendation.

At the suppression hearing, the parties stipulated that (1) during his tenure with the District Attorney's office, McClain had no knowledge that Robinson was a suspect in any homicides or abductions; (2) upon assuming the bench in June 1985, Judge McClain exclusively handled a civil docket, with the exception of presiding over various applications for search warrants, wiretaps, and pen registers; and (3) once appointed, Judge McClain disengaged from all law enforcement-related activities.

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2. Prosecution's Pursuit of Inquisition, Pen Registers, and Wiretaps

The Johnson County District Attorney's office regularly submitted wiretap and pen register applications to an administrative or civil judge. After the retirement of the civil judge who had historically handled these matters, Judge McClain began receiving the applications because he was a civil judge who had familiarity with criminal law.

On March 30, 2000, prosecutor Morrison approached Judge McClain and secured an order to open an inquisition. Although it was unusual to approach a civil judge for an inquisition, Morrison felt there was a strong possibility he would later request pen registers and wiretaps, so he wanted to begin proceedings with the wiretap judge.

In April 2000, the prosecution secured orders from Judge McClain for pen registers on Robinson's phones.

On May 19, the prosecution submitted a wiretap application to Judge McClain. Lenexa Police Detective Dave Brown offered a 31-page supporting affidavit containing hundreds of averments set forth in 78 separate paragraphs.

The affidavit detailed law enforcement's extensive investigation of Robinson and described facts uncovered through the use of a variety of traditional investigatory techniques, including surveillance of witnesses and the defendant, warrantless trash searches, consensual searches, investigatory interviews, inquisitional subpoenas, and analysis of pen register data.

Specifically, the affidavit outlined Robinson's relationship with Trouten, his likely involvement in her recent disappearance, and his attempts to conceal the same. It identified facts suggesting Robinson had targeted new potential victims in the BDS&M

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community, including Trouten's friends, Remington and Taylor, as well as J.M. and V.N. It also summarized law enforcement's analysis of pen register data and inquisition subpoenas, which demonstrated that Robinson was dependent on cellular and telephone communications to develop these relationships and further his criminal conduct.

The affidavit also touched on a few facts that were similar or common to both the Back Care case and the Robinson investigation. First, Brown made a passing reference to Robinson's convictions in the Back Care and Kuti cases, the former of which Judge McClain handled through the preliminary hearing. Brown also made brief reference to two companies connected to Robinson, Equi II and Equruz II, that utilized a name similar to Equi-plus, Robinson's company implicated in the Back Care case. Finally, the affidavit included averments describing Robinson's connection to and possible involvement in the disappearance of Paula Godfrey, who allegedly signed one of the sham affidavits in the Back Care case.

When prosecutors Morrison and Sara Welch, along with Brown, approached Judge McClain for the wiretap, the judge said he had prosecuted Robinson in a financial crimes case in the early to mid-1980s. Morrison testified that Judge McClain said something to the effect that he "knew the defendant as a, quote, con man or, quote, shyster," but characterized his comments as very brief and benign. Brown testified that Judge McClain said only that he had prosecuted Robinson for some financial crimes in the past. Judge McClain did not discuss any specific details about the Back Care case, the witnesses involved, or any other criminal complaints against Robinson.

3. Search Warrants

As the investigation progressed, prosecutors approached Judge McClain for search warrants. On June 2, 2000, law enforcement officers secured warrants to search

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Robinson's Olathe residence and storage locker. The following morning, prosecutors secured a warrant to search Robinson's Linn County property.

The application to search the Linn County property was supported by Brown's affidavit, which contained dozens of averments set forth in 35 separate paragraphs covering 10 single-spaced pages. The affidavits for all three search warrants were nearly identical. The first 20 paragraphs described Robinson's connection to Trouten, her disappearance, and Robinson's probable involvement in it. In paragraphs 21-30, Brown explained how Robinson had targeted new women in the BDS&M community. The affidavit also included averments establishing probable cause that evidence of Robinson's crimes would be found at each location.

As with the wiretap affidavit, Brown made reference to Robinson's prior convictions in the Back Care and Kuti cases, identified businesses tied to Robinson that used a name similar to Equi-plus, and disclosed Robinson's possible connection to the disappearance of Godfrey.

On June 2, 2000, Lenexa police officials contacted Linn County Sheriff Marvin Stites to discuss plans for executing a search warrant for Robinson's Linn County property. After securing the warrant, Linn County Sheriff's Deputy Kevin Danciak arrived at Robinson's Linn County property around 9:30 a.m., just as officers from Lenexa and Overland Park were arriving. Danciak reviewed and executed a written request for assistance document drafted by Lenexa police. The document memorialized Linn County's request to Lenexa and other agencies for assistance in executing the search warrant. Law enforcement officers began the search after Danciak signed the document.

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4. Warrantless Searches of Robinson's Trash

Before obtaining search warrants, law enforcement officers employed a variety of investigatory techniques, including searching Robinson's trash placed outside for collection at his Olathe residence. Lenexa Police Detective Michael Bussell drove by Robinson's residence 50 to 60 times from March to June 2000, exploring the location, developing strategies for collecting Robinson's trash, and coordinating trash pulls on collection days. Lenexa police did not disclose their activities to Olathe police.

Robinson lived inside Santa Barbara Estates, a private mobile home community that maintained its own streets, sidewalks, and lighting. A private trash company, Deffenbaugh, regularly entered the community to collect residents' trash. At the community's main entrance, there was a "Santa Barbara Estates" sign on the south side of the road. Several yards beyond this sign, there was a "Speed Limit 20" sign. Just below the speed limit sign, affixed to the same post, was a smaller sign captioned, "Private Property No Soliciting." There were no "no trespassing" signs posted within the community. Santa Barbara Estates was not a gated community, and there was no physical barrier impeding access into the area. Only transporters hauling mobile homes into or out of the community were required to check in before entering. If a person wanted to visit a resident, he or she was free to drive into the community, walk up to a resident's home, and knock on the resident's door. Olathe police freely entered the community to execute warrants and handle other police business.

Robinson's residence was located 1/4 to 1/2 mile beyond the entrance to Santa Barbara Estates. The residence could not be seen, or views of it were limited, from any street outside Santa Barbara Estates.

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Each time a law enforcement officer pulled Robinson's trash, it had been set out for collection in a container placed toward the end of an asphalt parking area, near or against the curb line, where the parking pad intersected the roadway, approximately 10 to 12 feet outside of the fence that surrounded the residence. When Bussell saw the trash container placed in this location, he would radio another officer to collect it from the container. However, on other occasions, a law enforcement officer, after making arrangements with a security officer at Deffenbaugh, would ride on the trash truck and collect the trash directly or would supervise Deffenbaugh's collection and arrange to pick it up at a location away from Santa Barbara Estates.

Neutral and Detached Magistrate Challenge

Robinson argues the evidence seized pursuant to, or as a result of, the four pen registers, one wiretap order, and four search warrants Judge McClain issued in this case should have been suppressed because he was not a neutral and detached magistrate.

1. Legal Framework and Standard of Review

Our standard of review for motions to suppress evidence is well established:

"An appellate court reviews a district court's decision on a motion to suppress using a bifurcated standard. Without reweighing the evidence, the district court's findings of fact are reviewed to determine whether they are supported by substantial competent evidence. A de novo standard of review is then used to review the ultimate legal conclusion regarding the suppression of evidence." State v. Garza, 295 Kan. 326, 330-31, 286 P.3d 554 (2012).


The Fourth Amendment to the United States Constitution, along with Section 15 of the Kansas Constitution Bill of Rights protects individuals against unreasonable

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government searches and seizures. See State v. Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010) (Section 15 of the Kansas Constitution Bill of Rights provides "the same protection from unlawful government searches and seizures as the Fourth Amendment to the federal Constitution."), cert. denied 131 S. Ct. 2114 (2011). While not expressly contained in the text of the amendment, the United States Supreme Court first recognized a neutral and detached magistrate requirement in Johnson v. United States, 333 U.S. 10, 13-14, 68 S. Ct. 367, 92 L. Ed. 436 (1948) ("The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."). Since Johnson, the neutral and detached magistrate requirement has evolved into a firmly established cornerstone of Fourth Amendment law. State v. Fremont, 749 N.W.2d 234, 237-38 (Iowa 2008).

Throughout the judicial refinement of the doctrine, the Supreme Court has recognized at least two circumstances in which a magistrate fails to satisfy the neutral and detached requirement. First, a magistrate involved in or who exercises law enforcement powers of the executive branch lacks neutrality and detachment. "Whatever else neutrality and detachment might entail, it is clear that they require severance and disengagement from activities of law enforcement." Shadwick v. City of Tampa, 407 U.S. 345, 350, 92 S. Ct. 2119, 32 L. Ed. 2d 783 (1972). Second, a magistrate with a direct pecuniary interest in the outcome of the warrant proceedings also lacks neutrality and detachment. Connally v. Georgia, 429 U.S. 245, 250-51, 97 S. Ct. 546, 50 L. Ed. 2d 444 (1977).

Connally expanded the scope of the neutral and detached magistrate requirement beyond separation of powers principles and into the realm of judicial bias, i.e., direct

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pecuniary interests, by applying due process principles to the Fourth Amendment analysis. Specifically, Connally adopted the due process test articulated in Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927), and Ward v. Village of Monroeville, 409 U.S. 57, 93 S. Ct. 80, 34 L. Ed. 2d 267 (1972). 429 U.S. at 247-50. Thus a magistrate lacks neutrality and detachment where the circumstances offer "'a possible temptation to the average man [or woman] as a judge . . . or which might lead him [or her] not to hold the balance nice, clear and true between the State and the accused.'" 429 U.S. at 250. In applying this standard, we conduct an individualized and contextual inquiry in light of the totality of the circumstances. See United States v. Bowling, 619 F.3d 1175, 1186 (10th Cir. 2010).

Robinson argues the court should apply an "appearance of bias" standard, borrowed from recusal statutes and judicial codes of conduct. While judicial bias and recusal precedent may inform the Fourth Amendment analysis, the appearance of bias standard is inconsistent with the objective test employed by the Supreme Court. See United States v. Heffington, 952 F.2d 275, 279-80 (9th Cir. 1991) (urging caution in the application of an appearance of partiality standard to Fourth Amendment neutral and detached magistrate challenges); State v. McCann, 391 N.J. Super. 542, 554, 919 A.2d 136 (2007) (mere appearance of bias alone is insufficient, objectively reasonable partiality must be established); O'Connor v. Madera County Superior Court, 76 Cal. Rptr. 2d 138, 148 (1998) (appearance of partiality, "without more, is not enough to render [magistrate] constitutionally disqualified to act or to implicate the exclusionary rule under the Fourth Amendment"), rev. denied and ordered not officially published 65 Cal. App. 4th 113 (October 14, 1998). It is also inconsistent with the standard we have applied to due process challenges founded on allegations of judicial bias. See State v. Hurd, 298 Kan. 555, 570, 316 P.3d 696 (2013) ("Recusal is required under the Fourteenth Amendment's Due Process Clause when the judge is actually biased or there is a

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constitutionally intolerable probability of actual bias. [Citation omitted.]"); State v. Sawyer, 297 Kan. 902, 909-10, 305 P.3d 608 (2013) (same).

2. Did Judge McClain lack neutrality and detachment?

In ruling on Robinson's challenge, the district judge found:

"In this case, McClain investigated Robinson and filed criminal charges against him for theft on March 29, 1985 in what was referred to at the hearing as the Back Care case (Case No. K48573). As Chief Deputy to the District Attorney at the time, McClain assigned himself the case and handled the matter through the preliminary hearing. Shortly after the preliminary hearing, on June 10, 1985, McClain was appointed to the bench. Another prosecutor, Assistant District Attorney Steve Obermeier, took over the case and tried it in Judge McClain's stead. Judge McClain was later called as a witness in the Back Care case to testify as to the delivery of certain affidavits to him from Ron Wood and at the behest of Robinson. A review of the transcripts of those earlier proceedings indicates that McClain was nothing more than a foundation witness to show the chain of custody for the documents in question. McClain testified as to the delivery of the documents only. It was Obermeier that obtained that conviction, handled the sentencing of defendant, opposed defendant's parole, and later filed the charges against Robinson in the Kuti case (Case No. K51711). The parties have stipulated that Judge McClain 'had no knowledge whatsoever concerning the defendant's suspected involvement in any homicides or abductions' and that 'since assuming the bench in June of 1985, Judge McClain has handled a civil docket exclusively and has disengaged from any law enforcement related activities, other than presiding over various applications for search warrants, wiretaps, and pen registers.'"


The district judge's factual findings are supported by substantial competent evidence, and Robinson does not challenge them on appeal. Thus our analysis focuses on Judge Anderson's legal conclusion that Judge McClain was neutral and detached.

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We have not previously addressed a neutral and detached magistrate challenge under these particular facts. But see generally State v. Schoonover, 281 Kan. 453, 517, 133 P.3d 48 (2006) ("'The requirement that a warrant must be issued by a neutral and detached magistrate does not equate to a constitutional mandate requiring that a judge have no contact with or knowledge of the case or the defendant.'") Nor has the Supreme Court decided whether a magistrate's former prosecution of a defendant violates the neutral and detached magistrate requirement. As such, we turn to other persuasive authority for guidance.

The Fifth Circuit Court of Appeals issued the seminal decision on "magistrate-as-former-prosecutor" challenges in United States v. Outler, 659 F.2d 1306 (5th Cir. 1981). In Outler, the magistrate, who had prosecuted defendant for prescribing scheduled drugs without a license 3 years prior, issued a warrant in his capacity as a judicial officer to search defendant's medical office in a later investigation of defendant's practice. The search warrant was "based on information gathered exclusively during the second investigation." 659 F.2d at 1312. The Fifth Circuit found no Fourth Amendment violation, reasoning the search warrant contained sufficient evidence to indicate probable cause and the details therein were independent of the events involved in the magistrate's former prosecution of the defendant. 659 F.2d at 1312.

The Eighth Circuit Court of Appeals rejected a similar challenge in United States v. DeLuna, 763 F.2d 897 (8th Cir. 1985), where jointly charged codefendants argued the issuing magistrate's former prosecution of certain defendants violated the neutral and detached magistrate requirement. The Eighth Circuit rejected the challenge because the evidence failed to demonstrate that the current investigation was related to the matter handled previously by the magistrate or that the magistrate was still employed as a prosecutor at the time the current investigation began. 763 F.2d at 908.

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More recently, the Tenth Circuit Court of Appeals reached the same holding in United States v. Freerksen, 457 Fed. Appx. 769 (10th Cir.) (unpublished opinion), cert. denied 132 S. Ct. 2788 (2012). There, defendant was convicted of five counts of producing child pornography after law enforcement executed a search warrant uncovering digital images depicting the sexual abuse of an 11-year-old child. The search warrants were issued by Special District Judge Don Work. Prior to his appointment to the bench, Judge Work was an assistant district attorney. In that capacity, he prosecuted defendant for assault and battery in 2007 and for lewd molestation in 2008. Work had also sought to accelerate a deferred sentence defendant received in a 2005 case for child stealing. The Tenth Circuit held that Judge Work's former prosecution of defendant on cases involving sex crimes and abuse of children, which were unrelated to the incident giving rise to the pending child pornography investigation, failed to demonstrate a violation of the Fourth Amendment's neutral and detached magistrate requirement. 457 Fed. Appx. at 772; see United States v. Waters, 786 F. Supp. 1111, 1117 (N.D.N.Y. 1992) ("Absent concrete evidence that [the magistrate judge] was involved in his prior capacity as Assistant United States Attorney in an investigation of defendant as an open criminal file to which he was assigned, there is no basis upon which to invalidate the . . . search warrant. [Citation omitted.]"; cf. United States v. Harris, 566 F.3d 422, 434 (5th Cir. 2009) (finding "no reason to question the neutrality and detachment of a magistrate who happened to have represented the defendant in an unrelated criminal matter 6 years prior"); Heffington, 952 F.2d at 279-80 (magistrate's prior representation of defendant in previous drug case was not the same matter at issue when warrants issued); Bowling, 619 F.3d at 1186 (magistrate who represented bank in adversarial proceedings against defendant 10 years before the warrant application did not violate neutral and detached requirement).

Robinson suggests these decisions stand for the proposition that a magistrate lacks neutrality and detachment where any facts between the former prosecution and current

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investigation overlap. He then argues Detective Brown's supporting affidavits disclosed three overlapping or common facts between the Back Care case and the capital murder investigation, including reference to Robinson's conviction in the Back Care case, his possible involvement in the disappearance of Paula Godfrey, and businesses tied to Robinson that used a name similar to Equi-plus.

However, a careful review of Outler, DeLuna, and other "magistrate-as-former-prosecutor" cases reveals the pivotal question is not whether there are any facts common between the two cases, but instead whether they arose from a common investigation or single transaction or event. Outler, 659 F.2d at 1312 (affidavit established probable cause and significant facts in affidavit, such as agents, dates, and drugs in question, were wholly independent of the events at issue in the prior prosecution); cf. Del Vecchio v. Illinois Dept. of Corrections, 31 F.3d 1363, 1375 (7th Cir. 1994) (en banc) (recusal not required in a murder trial where judge had prosecuted defendant 14 years earlier on a different murder charge); In re K.E.M., 89 S.W.3d 814, 826 (Tex. App. 2002) (judge is not disqualified by mere fact that he personally prosecuted defendant for past crimes).

The judge's former prosecution of Robinson and the current capital murder investigation most certainly did not arise from a common investigation or single transaction or event. Then-prosecutor McClain investigated and prosecuted Robinson on a theft by deception charge related to his fraudulent invoicing practices that defrauded the owners of Back Care. In stark contrast, this case involved the investigation and prosecution of Robinson 15 years later for kidnapping, sexual battery, and the murders of six female victims.

Robinson does not dispute that the averments in the supporting affidavits established probable cause for issuance of the pen registers, wiretap orders, and search warrants; and none of the allegedly overlapping facts in the affidavits were material to

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Judge McClain's probable cause determinations. The most significant overlapping fact was the affidavits' brief reference to Robinson's convictions in the Back Care and Kuti cases. Detective Brown testified that he referenced these cases to bolster other averments describing Robinson's attempts to conceal his crimes by fabricating letters on behalf of the victims. The element of fraudulent concealment may have been common to both the Back Care case and the capital murder investigation, but, as Judge Anderson found, the fact that a perpetrator took steps to cover up the crimes is a fact common to most all criminal cases.

Amongst the dozens of averments in the affidavits, the isolated reference to the Back Care case bore little weight in the overall assessment of probable cause. The other allegedly overlapping facts are even more benign. It is unclear how Godfrey's signature on a sham affidavit in a financial crimes prosecution would adversely influence Judge McClain's probable cause assessment in this capital murder investigation. The same holds true for the fleeting references to Robinson's companies using the Equi title.

Robinson relies on Sincavage v. Superior Court, 42 Cal. App. 4th 224, 49 Cal. Rptr. 2d 615 (1996), and Goines v. State, 708 So. 2d 656 (Fla. Dist. App. 1998), in support of his challenge. Both cases involved a judge who formerly prosecuted and secured convictions against the defendant, and these convictions were or could have been relevant to the enhancements sought at a current sentencing. In this regard, the judge's former prosecution and the enhancements sought at sentencing arose from the same acts or transactions. Thus the authority is distinguishable.

To the extent facts or circumstances were common to both cases here, they were not sufficient to cause a reasonable person to question Judge McClain's ability to fairly assess the probable cause issue in the various applications for pen registers, wiretap orders, and search warrants. See Schoonover, 281 Kan. at 517; see also DeLuna, 763 F.2d

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at 908 (magistrate's knowledge from prior investigation of defendant would not cause a reasonable person to believe he was unable to impartially assess the existence of probable cause); People v. Curkendall, 12 A.D.3d 710, 714, 783 N.Y.S.2d 707 (no merit in claim that judge's former prosecution of defendant 14 years earlier on similar offense violated due process), leave to appeal denied 4 N.Y.3d 743 (2004).

In addition to Judge McClain's former prosecution of defendant in the Back Care case, Robinson contends that the magistrate's stray comments evidenced his lack of neutrality and detachment. Specifically, Robinson highlights McClain's comment that Robinson was a "master of the copying machine" and that he knew defendant as a "con man or shyster."

The first comment was made to Robinson's defense counsel in the Back Care case more than 15 years before Judge McClain issued the pen registers, wiretap orders, and search warrants in this case and before he was appointed to the bench. The comment was also reasonably grounded in fact, as Robinson had provided fraudulent affidavits in hopes of avoiding prosecution. The comment does not evidence a lack of neutrality and detachment.

The "con man or shyster" comment is more troubling when viewed in isolation. However, Judge McClain made this comment while disclosing his previous investigation and prosecution of Robinson in a financial crimes case. Viewed in context, Judge McClain's comment appears to be an inartful description of the nature of the crimes he prosecuted rather than a pejorative statement regarding Robinson's character.

The parties stipulated that Judge McClain had completely disengaged from law enforcement upon taking the bench in 1985, had had no involvement in any subsequent investigation or prosecution of Robinson, and had no knowledge of Robinson's possible

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involvement in other missing persons' investigations. Nothing in the record suggests Judge McClain considered any information outside the four corners of the applications and supporting affidavits, in this case, which provided ample independent support for his probable cause determinations. The comments highlighted by Robinson fail to establish a violation of the neutral and detached magistrate requirement. See Hurd, 298 Kan. at 571 (trial judge comments that defendant was "'a violent man,'" the "'best place for [him] is in prison,'" and that he showed a "'complete inability to . . . follow the rules'" did not establish due process violation when made in reference to his extensive criminal history); Schoonover, 281 Kan. at 516-17 (magistrate who formerly represented defendant and called him a "low life" was neutral and detached where he did not rely on information outside the affidavit, which clearly established probable cause); State v. Griffen, 241 Kan. 68, 71-72, 734 P.2d 1089 (1987) (district judge referring to defendant as a "'mean mother,'" when explaining the case background to new defense counsel, while ill-advised, did not demonstrate bias and prejudice).

Robinson, relying on State v. Alderson, 260 Kan. 445, 468-69, 922 P.2d 435 (1996), argues Judge McClain's comments should be construed as evidence of bias because the judge was the victim of Robinson's fraud, i.e., he received Robinson's sham affidavits in the mid-1980s. In Alderson, we held that a reasonable person would question the trial judge's impartiality where defendant was prosecuted for stealing a car owned by the trial judge's brother. 260 Kan. at 469. Unlike the situation in Alderson, neither Judge McClain nor any member of his family suffered injury or financial loss from Robinson's sham affidavits. Robinson delivered the affidavits in hopes of avoiding prosecution, not to defraud Judge McClain financially. Robinson's efforts proved unsuccessful and did not impede then-prosecutor McClain's filing of criminal charges. In fact, the sham affidavits bolstered the State's case in the Back Care prosecution. Robinson's reliance on Alderson is misplaced.

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Based on the foregoing analysis, we agree with Judge Anderson's legal conclusion that Judge McClain was a neutral and detached magistrate.

Jurisdiction to Issue Extraterritorial Search Warrant

In his second suppression issue, Robinson claims Judge McClain exceeded his territorial jurisdiction, as defined by Kansas statutes, by issuing the warrant to search Robinson's property in Linn County, rendering the warrant void ab initio.

1. Standard of Review

As set forth above, in considering the denial of a motion to suppress, we review factual findings for substantial competent evidence and legal conclusions de novo. State v. Schultz, 289 Kan. 334, 340, 212 P.3d 150 (2009). Defendant's challenge also requires the court to interpret various statutes defining the powers of district judges. "The interpretation of statutes is a question of law over which an appellate court exercises unlimited review." State v. Arnett, 290 Kan. 41, Syl. カ 1, 223 P.3d 780 (2010).

2. Can district judges issue extraterritorial search warrants?

Resolution of this challenge requires the court to analyze competing statutory interpretations regarding a district judge's authority to issue extraterritorial search warrants. To do so, we first outline the relevant constitutional and statutory framework.

The Kansas Constitution created the district courts of Kansas and provided that they "shall have such jurisdiction in their respective districts as may be provided by law." Kan. Const. art. 3, ァ 6(a) and (b). The legislature, in turn, has provided that district judges "provided for in the Kansas constitution shall have and exercise the full judicial power and authority of a district court." K.S.A. 20-302. The legislature later created two classes

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of "judges of the district courts"妖istrict magistrate judges and district judges. K.S.A. 20-301a. A "judge of the district court' means any of such judges." K.S.A. 20-301a.

The legislature has defined the general powers and authority of "judges of the district court" at K.S.A. 20-301a:

"Such judges shall have the jurisdiction, powers and duties prescribed by this act and otherwise prescribed by law. The judicial power and authority of a judge of the district court in each judicial district may be exercised anywhere within such judicial district and may be exercised anywhere within any other judicial district when assigned to hear any proceeding or try any cause in such judicial district, as provided in K.S.A. 20-319 and amendments thereto."


These provisions serve as a general limitation on judges of the district court, requiring that they exercise powers from within the territorial boundaries of their judicial districts. Verdigris Conservancy District v. Objectors, 131 Kan. 214, 218, 289 P. 966 (1930) ("judicial business is to be done in judicial districts, by district courts and district judges acting within and for their respective districts").

Beyond these general grants of authority, the legislature has specifically defined a judicial officer's authority to issue search warrants. The legislature has provided that search warrants shall be issued by a "magistrate." K.S.A. 22-2502(a). A "'magistrate'" includes "judges of district courts," which includes both district magistrate judges and district judges. K.S.A. 22-2202(14); K.S.A. 20-301a. However, the legislature has placed territorial limits on the execution of search warrants issued by a district magistrate judge.

"Search warrants issued by a district magistrate judge may be executed only within the judicial district in which said judge resides or within the judicial district to which said judge has been assigned pursuant to K.S.A. 20-319." K.S.A. 22-2503.


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Importantly, the legislature placed no such territorial limitation on search warrants issued by district judges. See K.S.A. 22-2502 and 22-2503.

Judge McClain was a district judge in Johnson County, the lone county in the Tenth Judicial District. He issued a warrant from within the territorial boundaries of the Tenth Judicial District to search Robinson's Linn County property, located in the Sixth Judicial District. In his motion to suppress and on appeal, Robinson argues K.S.A. 20-301a, which permits a "judge of the district court" to exercise judicial powers anywhere within the territorial boundaries of the judicial district, prevented Judge McClain from issuing the extraterritorial search warrant. Judge Anderson denied defendant's motion to suppress, finding the legislature intended to grant district judges authority to issue search warrants executable statewide under K.S.A. 22-2503 by placing territorial limits on search warrants issued by district magistrate judges only.

The resolution of these competing statutory interpretations lies within the history of the pertinent statutes. We begin with the search warrant statutes, which predate the legislature's enactment of K.S.A. 20-301a. K.S.A. 22-2502 and 22-2503 authorize judges of the district court to issue search warrants, but K.S.A. 22-2503 places territorial limits on the execution of warrants issued by district magistrate judges. This was not always the case. K.S.A. 62-1830 (Corrick), the predecessor to K.S.A. 22-2502 and 22-2503, formerly provided:

"'A warrant shall issue upon affidavit or upon oral testimony given under oath and recorded before the magistrate or judge. If the magistrate or judge is satisfied that there is probable cause for the issuance of a warrant, he shall issue such warrant describing the property to be searched for and seized and naming or describing the person, place or means of conveyance to be searched. The warrant shall be directed to any peace officer of the state of Kansas, or one of its governmental subdivisions who is


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authorized to enforce or assist in enforcing any law thereof. It shall state the grounds for its issuance, and shall command the officer to search the person, place, thing, or means of conveyance named for the property specified, and to seize such property and hold the same in accordance with the law.'" (Emphasis added.) State v. Lamb, 209 Kan. 453, 468-69, 497 P.2d 275 (1972) (quoting K.S.A. 62-1830), overruled on other grounds by State v. Jacques, 225 Kan. 38, 587 P.2d 861 (1978).


In Lamb, the defendant challenged a Johnson County magistrate's jurisdiction to issue an extraterritorial search warrant. Rejecting the challenge, Lamb held that K.S.A. 62-1830 granted both magistrates and judges the authority to issue search warrants executable statewide. Lamb reasoned that by directing a magistrate or judge to deliver the warrant to any peace officer of the state of Kansas, the statute implied that "a search warrant issued by a magistrate within the confines of his [or her] jurisdiction, can be served anywhere within the state of Kansas." 209 Kan. at 469.

In 1970, the legislature repealed K.S.A. 62-1830 and enacted K.S.A. 22-2503 as part of the codification of the Kansas Criminal Code. L. 1970, ch. 129, sec. 22-2503. Unlike former K.S.A. 62-1830, K.S.A. 22-2503 expressly provided that "[s]earch warrants issued by courts of limited jurisdiction may be executed only within the territorial limits of the county in which the court is located." L. 1970, ch. 129, sec. 22-2503. As discussed below, this statute was later amended to specifically apply the territorial restriction to district magistrate judges only.

However, the legislature did not wholly abandon the language in K.S.A. 62-1830 from which Lamb inferred the authority to issue extraterritorial warrants, i.e., that warrants be "directed to any peace officer of the state of Kansas." Instead, it incorporated substantially similar language into new section 2505, providing that "[a] search warrant shall be issued in duplicate and shall be directed for execution to all law enforcement

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officers of the state, or to any law enforcement officer specifically named therein." (Emphasis added.) L. 1970, ch. 129, sec. 22-2505.

Through these 1970 amendments, the legislature eliminated the authority of courts of limited jurisdiction to issue extraterritorial search warrants; it imposed no similar limitation on district judges; and it retained in K.S.A. 22-2505, the language from which Lamb inferred the authority of judges to issue extraterritorial warrants. Viewed together, these amendments provide persuasive support for the view that the legislature intended to grant district judges authority to issue search warrants executable statewide.

The 1970 amendments alone do not explain the legislature's subsequent enactment of K.S.A. 20-301a in 1976. But, the legislative history surrounding this enactment suggests strongly that it was never intended to restrict district judges' authority to issue extraterritorial search warrants.

On April 14, 1976, the legislature approved House Bill 2729, resulting in the enactment of K.S.A. 20-301a. L. 1976, ch. 146, sec. 10. In this bill, the legislature defined "judges of the district court" to include district judges and district magistrate judges and granted them authority to exercise their powers from anywhere within their judicial districts.

Eight days later, on April 22, 1976, the legislature passed House Bill 3186, amending K.S.A. 22-2503 as follows:

"Search warrants issued by courts of limited jurisdiction a district magistrate judge may be executed only within the territorial limits of the county in which the court is located said judge resides." L. 1976, ch. 163, sec. 3.


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The legislature's 1976 amendment to K.S.A. 22-2503 was a response to its earlier approval of K.S.A. 20-301a, which created district magistrate judges as one of two classes of judges of the district court. The amendment to K.S.A. 22-2503 reflected this new classification by substituting "a district magistrate judge" in place of "courts of limited jurisdiction." Had the legislature intended K.S.A. 20-301a to limit a district judge's authority to issue extraterritorial search warrants, it would have included all classes of "judges of the district court" in its amendment of K.S.A. 22-2503 or repealed this section altogether. Instead, it chose to place the territorial limitation on the execution of search warrants issued by "a district magistrate judge" only.

Three years later, the legislature adopted House Bill 2046, which amended K.S.A. 22-2503 to clarify that search warrants issued by a district magistrate judge were executable within the "judicial district" rather than the "territorial limits of the county" in which the judge resides. L. 1979, ch. 96, sec. 1. Once again, such an amendment would have been wholly unnecessary had the legislature intended K.S.A. 20-301a to limit the authority of judges of the district courts to issue extraterritorial search warrants altogether.

Robinson's construction of K.S.A. 20-301a as a limitation on district judges' authority to issue extraterritorial warrants would render the legislature's 1976 adoption of House Bill 3186 and 1979 adoption of House Bill 2046 meaningless. In fact, it would render the entirety of K.S.A. 22-2503 altogether superfluous. See State v. LaGrange, 294 Kan. 623, Syl. カ 1, 279 P.3d 105 (2012) (courts shall "presume that the legislature does not intend to enact useless, superfluous, or meaningless legislation").

The defendant's construction of K.S.A. 20-301a also fails to give meaning to other provisions within Article 25 of the Kansas Code of Criminal Procedure. For example, the

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statute authorizing installation or use of pen registers or trap and trace devices expressly limits a judge's ability to issue extraterritorial orders authorizing the use of such monitoring devices. K.S.A. 22-2527(1). The legislature enacted this statute in 1988, subsequent to the 1976 enactment of K.S.A. 20-301a. L. 1988, ch. 117, sec. 8. Likewise, the wiretap statute limits a judge's ability to issue extraterritorial orders authorizing electronic interception of communications. K.S.A. 22-2516(3). Once again, had the legislature intended K.S.A. 20-301a to serve as a general limitation on a district judge's jurisdiction to issue orders and warrants to be executed outside the judge's home district, then the express provisions doing so under the pen register and wiretap statutes would have been unnecessary.

When K.S.A. 22-2503 and 22-2505 are read together and considered against the history and developments subsequent to the 1970 codification, it is evident the legislature intended for district judges to retain their pre-code authority to issue search warrants executable statewide, while simultaneously revoking district magistrate judges' pre-codification authority to do so. See State v. Van Hoet, 277 Kan. 815, Syl. カ 2, 89 P.3d 606 (2004) ("Where the face of the statute leaves its construction uncertain, the court may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested.").

The Court of Appeals panel in State v. Englund, 50 Kan. App. 2d 123, 135, 329 P.3d 502 (2014), reached the same conclusion:

"When we consider K.S.A. 22-2503 and K.S.A. 22-2505 together, two statutes enacted at the same time K.S.A. 62-1830 (Corrick 1964) was repealed, the legislature's intent is clear: district magistrates may no longer issue search warrants outside their home judicial district, but district judges can."


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See also State v. Adams, 2 Kan. App. 2d 135, 138, 576 P.2d 242 (unlike electronic eavesdropping statute, nothing in the search and seizure statutes limits power of district judges to issue warrants within territorial jurisdiction), rev. denied 225 Kan. 845 (1978).

The United States District Court for the District of Kansas also has embraced this construction of the search warrant statutes. See United States v. Aikman, No. 09-10097-01-JTM, 2010 WL 420063, at *6 (D. Kan. 2010) (unpublished opinion) (no territorial limit on search warrant issued by district judge under K.S.A. 22-2503); Lord v. City of Leavenworth, No. 08-2171-JWL, 2009 WL 129367, at *4 (D. Kan. 2009) (unpublished opinion) (in 42 U.S.C. ァ 1983 constitutional tort claim, finding that district judge properly issued extraterritorial warrant under K.S.A. 22-2503; limitation on territorial jurisdiction applies to district magistrate judges only).

This construction provides meaning to K.S.A. 22-2503 and 22-2505, as well as K.S.A. 20-301a. K.S.A. 20-301a requires judges of the district court to exercise their powers within the territorial boundaries of their judicial districts. Applied here, K.S.A. 20-301a required Judge McClain to issue the search warrant from a location within Johnson County. More generally, K.S.A. 20-301a continues to prevent judges of the district courts from trying cases or conducting judicial proceedings outside the boundaries of their judicial districts, absent proper assignment under K.S.A. 20-319.

Robinson argues K.S.A. 20-301a, as the more recent legislative act, controls over Lamb and K.S.A. 22-2503 and 22-2505. See Farmers State Bank & Trust Co. of Hays v. City of Yates Center, 229 Kan. 330, 338, 624 P.2d 971 (1981) ("Where there is a conflict between the provisions of two or more statutory sections, the latest legislative expression controls."). However, as discussed above, 1 week after the legislature approved the bill resulting in the enactment of K.S.A. 20-301a, it adopted amendments to K.S.A. 22-2503,

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clarifying that only district magistrate judges are precluded from issuing extraterritorial warrants. Defendant's argument fails to account for this sensible pattern of legislative action.

Furthermore, as explained in Englund, "here we have a conflict between a general principle of law (K.S.A. 20-301a) and a more specific enactment dealing not with the overall jurisdiction of judges, but their specific jurisdiction in issuing search warrants (K.S.A. 22-2505). In this situation, the more specific statute controls." 50 Kan. App. 2d at 135. Also, because K.S.A. 22-2503 and 22-2505 were enacted together, address the same subject, and are contained in Article 25, Search and Seizure, of the Kansas Code of Criminal Procedure, they are in pari materia and must be construed together and brought into harmony. See In re Tax Appeal of LaFarge Midwest, 293 Kan. 1039 1045, 271 P.3d 732 (2012) ("when construing statutes to determine legislative intent, appellate courts must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible").

Robinson also points to the arrest warrant and subpoena statutes, which expressly grant district judges authority to issue extraterritorial warrants and orders, as support for his construction. See K.S.A. 22-2305(2); K.S.A. 22-3214. Defendant suggests this language would be unnecessary if district judges had authority to act beyond the territorial limits set out by K.S.A. 20-301a. However, Robinson's argument fails to account for the fact that the legislature enacted the arrest warrant and subpoena statutes in 1970, prior to the 1976 enactment of K.S.A. 20-301a. The argument also begs the question whether the legislature intended to grant district judges the same extraterritorial authority for search warrants when it repealed K.S.A. 62-1830 and enacted K.S.A. 22-2502, 22-2503, and 22-2505.

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Robinson also cites State v. Sodders, 255 Kan. 79, 872 P.2d 736 (1994), as support for his construction. There, defendant argued city police officers exceeded their authority by executing a search warrant beyond their territorial boundaries defined in K.S.A. 22-2401a. The State argued K.S.A. 22-2505 gave law enforcement officers power to execute warrants outside their jurisdiction, creating an exception to a law enforcement officer's territorial limitation under K.S.A. 22-2401a. We held that K.S.A. 22-2505 was a general statute providing that search warrants shall be executed by law enforcement officers and had nothing to do with their territorial jurisdiction. 255 Kan. at 84. Based on this rationale, Robinson argues that the territorial limits on district judges in K.S.A. 22-301a, like the territorial limits on law enforcement officers in K.S.A. 22-2401a, prohibit extraterritorial search warrants, and just as K.S.A. 22-2505 has nothing to do with the territorial jurisdiction of officers, it likewise has nothing to do with the territorial jurisdiction of district judges.

However, Sodders examined the statutory scheme governing law enforcement officers' territorial jurisdiction, not judges of the district courts. Furthermore, contrary to Robinson's assertion, Lamb held that language substantially similar to K.S.A. 22-2505 was relevant to defining a judge's authority to issue extraterritorial warrants. 209 Kan. at 469. In fact, in his dissenting opinion in Sodders, Justice Lockett agreed with our construction of K.S.A. 22-2503 in dicta, acknowledging the territorial limitation on extraterritorial search warrants applied to district magistrate judges only. 255 Kan. at 87 (Lockett, J., dissenting). Sodders is inapposite.

We likewise agree with the construction adopted by the panel of the Court of Appeals in Englund, which is more consistent with the legislative background and history and better harmonizes the relevant statutory scheme.See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010); Van Hoet, 277 Kan. 815, Syl. カ 2. Accordingly, we find no error in Judge Anderson's denial of defendant's motion to suppress on these grounds.

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Exercise of Law Enforcement Powers beyond Territorial Jurisdiction

Robinson next argues law enforcement officers exercised police powers beyond their territorial jurisdiction, in violation of K.S.A. 22-2401a, and Judge Anderson erred in refusing to suppress evidence derived from such activity. In particular, defendant contends Lenexa and/or Overland Park police exceeded their territorial jurisdiction by: (1) conducting warrantless trash searches at his Olathe residence; (2) executing the warrant to search his Linn County property; and (3) executing warrants to search his Olathe residence and storage units.

As set forth in the previous section, we review Judge Anderson's factual findings for substantial competent evidence and his legal conclusions de novo.

1. Did the trash searches violate K.S.A. 22-2401a?

On numerous occasions, members of the Lenexa Police Department (LPD) traveled beyond the Lenexa city limits to conduct warrantless searches and seizures of trash left for collection outside Robinson's Olathe residence. Because LPD conducted this investigative work beyond its territorial jurisdiction, Robinson believes evidence derived from the trash pulls should have been suppressed.

K.S.A. 22-2401a provides, in relevant part:

"(2) Law enforcement officers employed by any city may exercise their powers as law enforcement officers:
(a) Anywhere within the city limits of the city employing them and outside of such city when on property owned or under the control of such city. "


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The statute includes several exceptions, none of which are applicable to law enforcement's trash pulls. A "law enforcement officer" is "any person who by virtue of office or public employment is vested by law with a duty to maintain public order or to make arrests for violation of the laws of the state of Kansas or ordinances of any municipality . . . ." See K.S.A. 22-2202(13); K.S.A. 22-2401a(10)(a).

There is no dispute that LPD officers conducted trash searches beyond their territorial jurisdiction. The question is whether they were exercising their powers as law enforcement officers in doing so. Judge Anderson found LPD officers were not acting under the color of office and this activity fell beyond the scope of K.S.A. 22-2401a. We disagree.

LPD officers were not acting as private citizens when they conducted the trash pulls. They contacted the private trash hauler's security officer to obtain the company's cooperation and assistance. They commandeered the company's trash truck to collect defendant's trash and/or made arrangements for the private hauler to segregate defendant's trash and meet LPD officers at an agreed location to deliver it. The powers of a law enforcement officer include those "necessary to permit the city officer to meet his or her common-law duty to the public to preserve the peace." State v. Vrabel, 301 Kan. 797, 803-04, 347 P.3d 201 (2015). Here, LPD officers utilized their status as law enforcement officers to facilitate the cooperation and assistance of the private trash hauler, and they did so in furtherance of their duty to preserve the peace by building a case against Robinson預 person they believed was involved in multiple murders and posed a continuing threat to the community. Cf. Vrabel, 301 Kan. at 803-05 (officers' organized and planned controlled drug buy with confidential informant to build case against defendant in furtherance of duty to preserve the peace fell within scope of K.S.A. 22-2401a).

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We understand that, in most instances, private citizens may freely search garbage left on or at the side of a public street. California v. Greenwood, 486 U.S. 35, 40, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988) ("It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public."). However, we doubt seriously they could wield sufficient influence to secure the cooperation and assistance of a private trash contractor in such endeavors for weeks on end. See State v. Martin, No. 102,639, 2010 WL 1253752, at *7 (Kan. App. 2010) (unpublished opinion) (private citizen's trash pulls carried out with prior knowledge and acquiescence of law enforcement to further investigative efforts could not be deemed private action); Rodgers v. Waste Industries, Inc., No. 4:12-CV-294-FL, 2013 WL 4460265, at *5 (E.D.N.C. 2013) (where plaintiff alleged private trash hauler removed trash at behest of law enforcement, complaint sufficiently alleged action under color of law sufficient to state a claim under 42 U.S.C. ァ 1983), aff'd 553 Fed. Appx. 332 (4th Cir. 2014) (unpublished opinion).

Based on LPD officers' planning and coordination with the private trash contractor, along with their collaborative efforts to successfully complete these trash pulls over the course of several weeks, we conclude LPD officers were not acting exclusively as private citizens but, instead, exercised "powers as law enforcement officers" under these particular facts. See K.S.A. 22-2401a.

Acknowledging a violation of K.S.A. 22-2401a, the question turns to the appropriate remedy, if any. In Sodders, 255 Kan. at 84, despite the absence of any federal or state constitutional violation, the court affirmed the suppression of evidence where Overland Park police officers exceeded their territorial jurisdiction by executing a search warrant within the municipal boundaries of Lenexa.

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However, the Sodders majority did not specifically analyze or address the remedies available under K.S.A. 22-2401a. More recently, in Vrabel, 301 Kan. at 808-14, we explored what, if any, remedy was available to defendant under K.S.A. 22-2401a. There, city law enforcement officers violated the statute by organizing and carrying out a controlled drug buy outside their municipal boundaries. Neither the exclusionary rule, applicable to unconstitutional searches or seizures, nor the statutory provision for suppressing illegally seized evidence, K.S.A. 22-3216, applied because officers did not conduct an illegal search or seizure. Vrabel, 301 Kan. at 810-11. Therefore we considered whether suppression was an individual remedy available under K.S.A. 22-2401a. 301 Kan. at 811-14. Distinguishing Sodders based on the absence of any search or seizure, we held that suppression is generally not required where city officers exercise police powers"other than search and seizure"熔utside their municipal jurisdiction. Vrabel, 301 Kan. at 813-14.

Unlike Vrabel, LPD officers' conduct did involve searches and seizures carried out in violation of K.S.A. 22-2401a. Yet defendant's challenge is based on a violation of state statute, not the Fourth Amendment to the United States Constitution or ァ 15 of the Kansas Constitution Bill of Rights. Thus, application of the exclusionary rule does not inevitably follow unless the legislature has enacted such a compulsory remedy. See United States v. Green, 178 F.3d 1099 (10th Cir. 1999) (search conducted in violation of K.S.A. 22-2401a did not warrant application of exclusionary rule); 2 LaFave, Israel, King & Kerr, Criminal Procedure ァ 3.1(e), pp. 30-32 (3d ed. 2007) (searches invalid on state law grounds do not invariably require suppression of evidence).

Kansas statute provides a vehicle for defendants to move for the suppression of evidence seized in violation of law. K.S.A. 22-3216(1) provides that a defendant "aggrieved by an unlawful search and seizure may move . . . to suppress as evidence anything so obtained." However, it does not compel the trial court to grant that remedy

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for any search conducted in violation of state statute in particular. Compare K.S.A. 22-3216(1) with Tex. Crim. Proc. Code Ann. art. 38.23 (West 2005) ("No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.").

In the absence of the statutory equivalent to the federal exclusionary rule, we consider whether the legislature intended to create individual rights or remedies under K.S.A. 22-2401a. See 1 LaFave, Search & Seizure, A Treatise on the Fourth Amendment ァ 1.5(b), pp. 210-12 (5th ed. 2012) (where search challenged on state law grounds, courts examine underlying state statute and legislative intent to determine if suppression is an available remedy); 2 LaFave, Israel, King & Kerr, Criminal Procedure ァ 3.1(e), pp. 30-32 (exclusion may be an available remedy for search that violates state law where remedy is provided by statute or statute confers a substantial right, especially one related to Fourth Amendment protections).

We addressed this question in Vrabel and found the purpose of K.S.A. 2014 Supp. 22-2401a was to protect local autonomy, not to create individual rights.

"[I]t is apparent that the statutory limitations on the jurisdiction of city officers was put in place to protect the local autonomy of neighboring cities and counties, rather than to create an individual right, assuring that a person could only be caught breaking the law by an officer of the jurisdiction within which the crime was being committed." 301 Kan. at 813.


Because the statute does not vest defendant with any substantive right, it logically follows that suppression of evidence is not an individual remedy available to defendant. Nor can Robinson reasonably claim he suffered injury to any substantial right based on the fact that LPD officers, rather than Olathe police, conducted the otherwise lawful trash pulls.

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We hold that suppression of the evidence seized during LPD officers' trash pulls is not a remedy available to Robinson. See Vrabel, 301 Kan. at 813-14 (suppression of evidence not a remedy under K.S.A. 2014 Supp. 22-2401a, "especially . . . in circumstances . . . where the defendant has not been prejudiced in the least by" the exercise of law enforcement powers). In so holding, we do not suggest exclusion of evidence is never a remedy available for a search or seizure conducted in violation of state law. However, where a search is conducted in violation of state statute only and the statute violated does not vest defendant with an individual right, does not contemplate exclusion of evidence as a remedy, and the violation results in no cognizable injury to defendant's substantial rights, such a remedy is unavailable.

2. Did the Linn County search violate K.S.A. 22-2401a?

Under the same statutory authority, Robinson argues LPD officers exceeded their jurisdiction by executing the warrant to search Robinson's property in Linn County.

The relevant facts are not in dispute. The LPD was in charge of the investigation and secured a warrant from a Johnson County district judge to search Robinson's property in Linn County. Before obtaining the warrant, LPD discussed the search with the Linn County Sheriff's Department (LCSD). Before commencing the search, a LCSD deputy signed a document memorializing LCSD's request for assistance from LPD and other agencies in executing the warrant.

Kansas statute requires city police officers to exercise their police powers within the territorial boundaries of their employing municipality. K.S.A. 22-2401a(2)(a). However, this general rule is subject to an exception where law enforcement officers receive a request for assistance from another jurisdiction:

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"(2) Law enforcement officers employed by any city may exercise their powers as law enforcement officers:

(a) Anywhere within the city limits of the city employing them . . .; and

(b) in any other place when a request for assistance has been made by law enforcement officers from that place . . . ." K.S.A. 22-2401a(2).


Robinson argues this exception does not apply because LCSD's request for assistance was not genuine, evidenced by the fact that LCSD did not draft the written request, did not secure the search warrant, had no prior involvement in the investigation, and did not play a lead role during the search. We disagree.

On its face, K.S.A. 22-2401a(2)(b) requires only that law enforcement officers from the host jurisdiction make a request for assistance. See Zimmerman v. Board of Wabaunsee County Comm'rs, 289 Kan. 926, Syl. カ 3, 218 P.3d 400 (2009) ("An appellate court merely interprets the language as it appears; it is not free to speculate and cannot read into the statute language not readily found there."). We have rejected the view that K.S.A. 22-2401a(2)(b) includes any genuineness requirement in State v. Ross, 247 Kan. 191, 194, 795 P.2d 937 (1990) (nothing in the statute suggests legislature intended to require a request arise from an actual need for assistance). Instead, we held that a request for assistance alone satisfies the technical requirements of the statutory exception, regardless of the surrounding facts and extraneous circumstances. 247 Kan. at 195 ("[i]t is not necessary to establish that the need existed . . . only that the request for assistance was made"). Ross confirms that the written request LCSD executed satisfied the requirements of K.S.A. 22-2401a and LPD had jurisdiction to execute the search warrant in Linn County.

Robinson cities State v. Hennessee, 232 Kan. 807, 658 P.2d 1034 (1983), Sodders, 255 Kan. 79, and State v. Rowe, 18 Kan. App. 2d 572, 856 P.2d 1340, rev. denied 253

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Kan. 863 (1993), in support of his position. However, unlike the situation here, in those cases law enforcement from the foreign jurisdiction never received a request for assistance from the host jurisdiction. Moreover, nothing in Hennessee, Sodders, or Rowe suggests that there must be a genuine need for the requested assistance or that, if the request is reduced to writing, it must be drafted by the host jurisdiction. In contrast, Ross makes clear that the plain language of K.S.A. 22-2401a(2)(b) imposes no such requirements.

3. Did Johnson County searches violate K.S.A. 22-2401a ?

Finally, Robinson contends the LPD and Overland Park Police Department (OPPD) lacked territorial jurisdiction to execute the warrants to search Robinson's residence and storage unit located within the territorial boundaries of the city of Olathe.

However, in 1994, the legislature approved Senate Bill 742, which amended K.S.A. 22-2401a (Ensley 1988) to expand the territorial jurisdiction of law enforcement officers in Johnson County when executing arrest and search warrants. L. 1994, ch. 286, sec 1. As enacted, the expanded statute of jurisdiction provides:

"(5) In addition to the areas where law enforcement officers may exercise their powers pursuant to subsection (2), law enforcement officers of any jurisdiction within Johnson or Sedgwick county may exercise their powers as law enforcement officers in any area within the respective county when executing a valid arrest warrant or search warrant, to the extent necessary to execute such warrants." (Emphasis added.) K.S.A. 22-2401a(5).


Robinson argues the phrase "to the extent necessary to execute such warrants" requires the State to prove Olathe police had a genuine need for LPD's and OPPD's involvement in the execution of these warrants. Absent proof that the Olathe Police

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Department lacked the ability or capacity to execute the warrants independently, Robinson believes the statutory exception cannot apply.

Robinson's construction is inconsistent with the plain meaning of K.S.A. 22-2401a(5). The subsection begins with a legislative grant of jurisdiction to law enforcement officers in Johnson County, allowing them to execute warrants countywide. The legislature's use of the phrase "when executing a valid . . . search warrant" demonstrates this grant of jurisdiction is not subject to any condition precedent. The phrase "to the extent required to execute such warrants" modifies and limits the type of police powers officers may exercise "when" executing warrants outside their municipal boundaries, i.e., those powers incidental to the execution of the warrants. K.S.A. 22-2401a(5). The phrase does not limit the officers' jurisdiction to execute the warrants in the first instance.

This plain meaning is consistent with the history and context that gave rise to the legislature's enactment of K.S.A. 22-2401a(5). In Sodders, the court held that OPPD officers lacked territorial jurisdiction to execute a search warrant within Lenexa city limits, and the mere presence of LPD officers, even at the request of OPPD, did not satisfy the request for assistance exception. 255 Kan. at 84. Only 10 days later, the legislature enacted Senate Bill 742, enacting K.S.A. 22-2401a(5). L. 1994, ch. 286, sec. 1. The amendment was a legislative response to Sodders designed "to allow law enforcement officers of any jurisdiction within Johnson County or Sedgwick County to exercise their powers as law enforcement officers in any area within the respective county when executing a search warrant." Vrabel, 301 Kan. at 807; see State v. Mendez, 275 Kan. 412, 419, 66 P.3d 811 (2003) (1994 legislative amendment "clearly authorize[s]" city police officers in Johnson County to execute search warrants countywide). Thus, even if interpretation of the statute's plain meaning were not possible

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and we needed to turn to construction, Robinson's construction is inconsistent with this legislative purpose.

Based on the plain language of K.S.A. 22-2401a(5), consistent with the context and history giving rise to the 1994 amendment creating this subsection, LPD and OPPD officers had territorial jurisdiction to execute the search warrants in Olathe. We find no error in Judge Anderson's denial of defendant's motion to suppress on these grounds.

Fourth Amendment Challenge to LPD Officers' Trash Pulls

In addition to challenging LPD officers' trash searches under K.S.A. 22-2401a, Robinson believes this investigatory conduct violated his rights under the Fourth Amendment.

We apply a two-part analysis to Fourth Amendment challenges to law enforcement's trash pulls, considering: (1) whether trash was seized within the curtilage of defendant's home; and (2) whether defendant held a reasonable expectation of privacy in the trash. State v. Fisher, 283 Kan. 272, 282-83, 154 P.3d 455 (2007).

1. Was the trash located within the curtilage of the residence?

The Supreme Court considers the following four factors to determine whether a search was conducted within the curtilage of defendant's residence:

"the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by." United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987).


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As to the first factor, Robinson placed his trash container at curbside, near the end of his asphalt parking pad at the outer edge of his property. Robinson's challenge necessarily, but incorrectly, presumes the curtilage extended to the four corners of his entire property. Second, the trash container was located 10 to 12 feet beyond the exterior fence that encircled the perimeter of the mobile home. Third, the record confirms this area was utilized to discard trash, but there is scant evidence suggesting the area was put to other uses. Finally, Robinson took no affirmative steps to protect this area from observation by people passing by.

Based on the totality of these circumstances, LPD officers seized Robinson's trash beyond the curtilage of his residence. See United States v. Long, 176 F.3d 1304, 1308 (10th Cir. 1999) (trash bags placed on top of trailer parked inside property line, approximately 3 feet from alley and 7 feet from attached garage, but not shielded from public view, beyond curtilage); United States v. Redding, 540 F. Supp. 2d 1184, 1187 (D. Kan. 2008) (trash bags located at curbside of defendant's front yard outside front fence beyond curtilage); State v. Alexander, 26 Kan. App. 2d 192, 196-97, 981 P.2d 761 (trash inside dumpster at end of driveway near property line, with no fence or barrier around home, beyond curtilage), rev. denied 268 Kan. 848 (1999); United States v. Martinez, No. 99-2044, 1999 WL 910029, at *2 (10th Cir. 1999) (unpublished opinion) (trash located outside chain-link fence of trailer home beyond curtilage); United States v. Cianciarulo, No. 10-40041-01-SAC, 2010 WL 2653423, at *3 (D. Kan. 2010) (unpublished opinion) (trash placed at the end of the driveway as if awaiting regular pickup not within curtilage).

Defendant cites Robinson v. Com., 45 Va. App. 592, 612 S.E.2d 751 (2005), for the proposition that a driveway lies within the curtilage because it is an area where people wash cars, unload groceries, etc. There, however, family members testified their

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driveway was actually put to such uses. No similar testimony is included in our record. Also, the driveway in that Virginia case was expansive, splitting into two divergent paths that encircled an area of land in front of the home. The Virginia Court of Appeals found the portion of the driveway located next to landscaping adjacent to the home, where police observed evidence of the crime, was located within the curtilage of defendant's residence, not the entire driveway. 45 Va. App. at 606-07. In contrast, Robinson set trash out for collection at the farthest edge of his parking pad, located at his property line and exposed to other members of the public. Defendant's cited authority is distinguishable.

2. Was there a reasonable expectation of privacy?

"Even if the trash bags were in the curtilage, the defendant must show that he had a reasonable expectation of privacy in them." Redding, 540 F. Supp. 2d at 1187; see Fisher, 283 Kan. at 290-91.

Under nearly identical facts, Kansas courts have found no reasonable expectation of privacy in trash set out for collection at the edge of defendant's property in close proximity to the curb, even if located within the curtilage. Long, 176 F.3d at 1308-09 (once defendant put trash on the trailer adjacent to a public thoroughfare for collection, he defeated any reasonable expectation of privacy); Redding, 540 F. Supp. 2d at 1187 (defendant did not have reasonable expectation of privacy in trash placed on front curb, outside the front fence, for collection); State v. Kimberlin, 267 Kan. 659, 666, 984 P.2d 141 (1999) (placement of trash out for collection near road, even if located on property, defeated any reasonable expectation of privacy); Alexander, 26 Kan. App. 2d at 200 (no expectation of privacy in trash placed in dumpster 1 1/2 feet from street and clearly accessible to the public); Cianciarulo, 2010 WL 2653423, at *3 ("Society does not recognize a reasonable expectation of privacy in 'trash left for collection in an area accessible to the public.'"); United States v. Hamilton, No. 03-10114-01-WEB, 2003 WL

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22462511, at *2 (D. Kan. 2003) (unpublished opinion) (no reasonable expectation of privacy in trash bags left out within a few feet of an alley on collection day); Martinez, 1999 WL 910029, at *2-3 (no reasonable expectation of privacy in trash placed outside fence near curb); State v. Baskas, No. 109,760, 2014 WL 3843088, at *7 (Kan. App. 2014) (unpublished opinion) (law enforcement could search trash bags set out at curbside for collection), rev. denied 302 Kan. ___ (July 21, 2015).

The fact Robinson resided within a private mobile home community does not alter our conclusion. Robinson's trash was exposed to fellow residents of the 500-unit mobile home community. The trash also was exposed to members of the public who were free to enter the community provided they did not solicit while there. See Barekman v. State, 200 P.3d 802, 805-06 (Wyo. 2009) (no reasonable expectation of privacy in curbside trash accessible to others, even though defendant resided in private mobile home park); cf. United States v. Harris, 6 Fed. Appx. 304, 307-08 (6th Cir. 2001) (unpublished opinion) (curbside trash not protected by Fourth Amendment simply because defendant lived in gated community).

Showing of Necessity for Wiretap Orders

In his final suppression challenge, Robinson argues that the application for wiretap failed to satisfy a statutory requirement to show a need for this extraordinary investigatory tool, a standard dubbed the "necessity requirement." See United States v. Blackmon, 273 F.3d 1204, 1207 (9th Cir. 2001).

1. Legal Framework and Standard of Review

The Kansas Wiretap Act provides:

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"(1) Each application for an order authorizing the interception of a wire, oral or electronic communication shall be made in writing, upon oath or affirmation, to a judge of competent jurisdiction, and shall state the applicant's authority to make such application. Each application shall include the following information:

. . . .

"(c) A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." (Emphasis added.) K.S.A. 22-2516(1)(c).


The federal act contains identical language. See 18 U.S.C. ァ 2518(1)(c) (2012). This is not surprising because the Kansas act largely mirrors the federal provisions, and therefore wiretap applications are subject to both the state and federal requirements. State v. Bruce, 295 Kan. 1036 1040, 287 P.3d 919 (2012). Accordingly, federal decisions interpreting 18 U.S.C. ァ 2518 are persuasive. See Fredricks v. Foltz, 221 Kan. 28, 30, 557 P.2d 1252 (1976); cf. Davis v. State, 426 Md. 211, 223, 43 A.3d 1044 (2012).

The purpose of the necessity requirement is "to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime," United States v. Kahn, 415 U.S. 143, 153 n.12, 94 S. Ct. 977, 39 L. Ed. 2d 225 (1974), and to prevent law enforcement from employing wiretaps as "the initial step in criminal investigation." United States v. Giordano, 416 U.S. 505, 515, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974).

The statute requires the applicant to provide "a full and complete statement of specific allegations indicating why normal investigative procedures failed or would fail in the particular case." Blackmon, 273 F.3d at 1207. General allegations and boilerplate language fail to satisfy the necessity requirement. 273 F.3d at 1210. However, courts "have adopted a 'common sense approach' in which the reviewing court uses a standard of reasonableness to evaluate the government's good faith effort to use alternative

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investigative means or its failure to do so because of danger or low probability of success. [Citation omitted.]" 273 F.3d at 1207. As such, law enforcement officers are not required to exhaust every possible technique before resorting to a wiretap葉hey must instead demonstrate that wiretapping is not the first meaningful step in the investigation. United States v. Gonzalez, Inc., 412 F.3d 1102, 1113 (9th Cir. 2005), amended and reh. denied 437 F.3d 854 (9th Cir. 2006).

To the extent Robinson's challenge requires us to construe state or federal versions of the necessity requirement, we apply ordinary rules of statutory interpretation and construction and de novo review. Bruce, 295 Kan. at 1038-39. To the extent the challenge requires the court to assess Judge Anderson's denial of Robinson's motion to suppress wiretap evidence, we apply the traditional standard applicable to such motions. 295 Kan. at 1039 (factual findings reviewed for substantial competent evidence, legal conclusions de novo).

2. Did the application and affidavit satisfy the necessity requirement?

In Section VIII of the wiretap application, prosecutor Morrison and Detective Brown (Applicants) set forth allegations to satisfy the necessity requirement. The application describes with particularity reasons why infiltration by undercover agents was unlikely to succeed and was too dangerous, given Robinson's desire to solicit women to serve as "slaves" in BDS&M relationships and his connection to the disappearance of other missing women. Applicants explained how the use of informants was likely to be unsuccessful because they knew of no informants, other than women who were already involved with Robinson and could not be trusted to maintain confidences. The applicants also explained that continued surveillance would confirm overt acts but was unlikely to yield physical evidence or disclose coconspirator involvement, Robinson's modus operandi, or the specific nature of Robinson's relationship with the women he recruited.

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Applicants warned that further use of interviews and inquisitional subpoenas might alert Robinson to the investigation. Applicants believed more pen register data could document Robinson's contacts but would not reveal the content of his communications.

As for search warrants, applicants stated that they "would not provide sufficient evidence . . . to accomplish the goals of this investigation." Applicants defined those goals to include:

"a. [G]athering sufficient evidence to successfully prosecute John E. Robinson and others yet unknown for the murder and kidnapping of Suzette Trouten.
"b. Identify[ing] future kidnapping victims targeted by John Robinson and gather[ing] sufficient information to intervene and prevent harm to any future victims."


The application also incorporated by reference the averments set forth in Detective Brown's 31-page supporting affidavit. This affidavit set out findings uncovered through law enforcement's witness interviews, inquisitional subpoenas, extensive surveillance, trash pulls, analysis of pen register data, public record searches, consent searches, and other investigative practices.

In particular, Brown explained Robinson had been implicated in the disappearance of several women dating back to the mid-1980s; he enticed them into sexual relationships, often involving BDS&M, and lured them to Johnson County with offers of employment, travel, and financial gain; he had done the same with Suzette Trouten; and since her disappearance had targeted new women using a similar modus operandi. Brown explained that Robinson used his cell phone extensively and it was instrumental in his efforts to solicit and maintain relationships with these women預 conclusion supported by findings from LPD officers' extensive surveillance, use of inquisitional subpoenas, and analysis of pen register data. See United States v. Nguyen, 46 F.3d 781, 783 (8th Cir.

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1995) (necessity requirement satisfied where affidavit showed targets of investigation were dangerous, difficult to infiltrate, and conducted most of their crimes over the telephone; and government had tried using pen registers, confidential informants, surveillance, and garbage searches before pursuing wiretap).

Robinson does not dispute that applicants satisfied the necessity requirement in discussing several traditional investigative techniques. However, he suggests the applicants' boilerplate statement that search warrants would not effectively advance the goals of the investigation was insufficient and invalidates the wiretap order. We disagree.

The majority of courts have not construed the necessity requirement in such a strict, technical fashion. The statute "does not impose upon the government an exhaustion requirement but rather requires the government to establish that it first made a 'reasonable good faith effort' to utilize other available normal and less intrusive investigative techniques before resorting to a wiretap. [Citation omitted.]" United States v. Melendez-Santiago, 447 F. Supp. 2d 144, 149 (D.P.R. 2006), aff'd 644 F.3d 54 (1st Cir. 2011). Wiretap applicants satisfy the necessity requirement by supplying a detailed overview of the investigation to date, concrete reasons why a wiretap was necessary, and explanations of how a range of traditional investigative techniques were proving, or were expected to prove, unlikely to succeed or too dangerous. United States v. Yeje-Cabrera, 430 F.3d 1, 9 (1st Cir. 2005); see United States v. Maynard, 615 F.3d 544, 550 (D.C. Cir. 2010) (law enforcement engaged in an adequate range of investigative endeavors; government not required to enumerate every technique or opportunity missed or overlooked), aff'd in part sub nom. United States v. Jones, 565 U.S. ___, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012); United States v. Stewart, 306 F.3d 295, 305 (6th Cir. 2002) ("In endeavoring to secure a wiretap warrant, the government need not prove the impossibility of other means of obtaining information."). Here, the application and affidavit did just that, establishing law enforcement's need for a wiretap and confirming that it was not an option of first resort.

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Independently, the applicants' general statement regarding the ineffectiveness of search warrants in accomplishing the goals of the investigation was supported by particularized, case-specific information contained within the four corners of the application and affidavit. The affidavit detailed how traditional investigatory techniques had revealed that defendant's criminal scheme involved soliciting and maintaining relationships with women and that he was highly dependent on his cell phone to perpetuate this scheme. Law enforcement officers had already issued subpoenas to defendant's telephone carriers and analyzed pen register data tracking calls from his home and cellular phone, but they needed to ascertain the substance of Robinson's conversations with the women he targeted to advance the goals of the investigation. From these averments one can reasonably infer that resort to search warrants, like other alternative investigatory methods described in the application, would not have produced this evidence.

Viewed together, the averments set forth in the application and affidavit supported the boilerplate language regarding the ineffectiveness of search warrants, thereby satisfying the necessity requirement. See United States v. Sobamowo, 892 F.2d 90, 93 (D.C. Cir. 1989) (conclusory language cannot rationally be separated from preceding detailed descriptions of investigative events); United States v. Carneiro, 861 F.2d 1171, 1177 (9th Cir. 1988) ("While it is true that some of the statements in the affidavit are mere conclusions, the facts set forth in the affidavit meet the necessity requirement when examined as a whole and in a common-sense fashion."); United States v. Brone, 792 F.2d 1504, 1506 (9th Cir. 1986) ("the affidavit made somewhat conclusory assertions about the difficulties of prosecuting the case, but these assertions were in the context of an affidavit that was sufficiently specific in all other respects"); United States v. Sims, 508 Fed. Appx. 452, 457 (6th Cir. 2012) (unpublished opinion) (boilerplate language was not fatal to application where it also contained particular facts demonstrating wiretaps were

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not being used routinely as the initial step in criminal investigation), cert. denied 133 S. Ct. 1847 (2013); United States v. Flores-Velasquez, Crim. No. 06-310(2) ADM/JJG, 2006 WL 3544927, at *3-4 (D. Minn. 2006) (unpublished opinion) (despite boilerplate language, application as a whole established need for wiretap).

Robinson relies on United States v. Ramirez-Encarnacion, 291 F.3d 1219 (10th Cir. 2002), in support of the proposition that boilerplate language describing the effectiveness of search warrants is legally insufficient. There, the Tenth Circuit took the position that the statute requires applicants to describe all traditional investigatory techniques, including use of search warrants, with particularity. 291 F.3d at 1222.

Robinson's reliance on Ramirez-Encarnacion is unpersuasive. The Tenth Circuit stands alone in requiring applicants to address all traditional investigatory techniques with particularity. United States v. Mesa-Rincon, 911 F.2d 1433, 1444 (10th Cir. 1990) (recognizing other circuits require only a discussion of techniques employed and explanation as to why a range of investigation methods would be ineffective or dangerous), modified on other grounds by United States v. Castillo-Garcia, 117 F.3d 1179 (10th Cir. 1997).

In addition, even under its more stringent framework, the Tenth Circuit reviews the totality of the information and considers whether boilerplate language is adequately supported within the four corners of the application. Ramirez-Encarnacion, 291 F.3d at 1222 (court must consider all facts and circumstances in assessing showing of necessity); Castillo-Garcia, 117 F.3d at 1188 (court will overlook failure to adequately explain one or more specified categories of normal investigative techniques where recitation of facts makes explanation unnecessary), overruled on other grounds by Ramirez-Encarnacion 291 F.3d at 1222 n.1.

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Here, the general language describing the ineffectiveness of search warrants was adequately supported by the averments contained in the four corners of the application and supporting affidavit. United States v. Segura, 318 Fed. Appx. 706, 709-10 (10th Cir. 2009) (unpublished opinion) (necessity requirement met where boilerplate statement regarding effectiveness of search warrants supported by facts in affidavit). We find no error in Judge Anderson's ruling.

4. JURY SELECTION

Defendant raises eight different issues related to the jury selection process, including: (1) whether Judge Anderson improperly curtailed voir dire questioning; (2) whether he erroneously denied defense challenges for cause; (3) whether he made disparate rulings on similarly situated challenges for cause; (4) whether he improperly denied a motion to strike a small group voir dire panel exposed to Juror 173's inflammatory remarks; (5) whether he improperly retained five panelists in light of alleged juror-specific bias; (6) whether he erred by excusing Juror 253 based on her opposition to the death penalty; (7) whether jury selection was tainted by alleged prosecutorial misconduct; and (8) whether the anonymous jury selection procedure was unlawful. We address each challenge in turn.

Scope of Voir Dire

1. Standard of Review and Legal Framework

Robinson argues Judge Anderson improperly curtailed the scope of voir dire in four respects, each of which he characterizes as separate claims. First, he contends Judge Anderson violated Kansas law by prohibiting case-specific questions regarding panelists' ability to consider a life sentence. Second, he argues the same limitation violated his constitutional rights. Third, he believes this limitation impaired his ability to identify

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mitigation-impaired jurors, violating state and federal law. Finally, he claims Judge Anderson improperly limited questioning on his prior terms of incarceration.

We apply the following standard of review to scope of voir dire challenges:

"Generally the nature and scope of the voir dire examination is entrusted to the sound discretion of the trial court. Manning, 270 Kan. at 691. However, '"[i]n determining whether the trial court has taken sufficient measures to assure that the accused is tried by an impartial jury free from outside influences, appellate tribunals have the duty to make an independent evaluation of the circumstances."' State v. Aikins, 261 Kan. 346, 366, 932 P.2d 408 (1997)." State v. Hayden, 281 Kan. 112, 128-29, 130 P.3d 24 (2006).


See State v. Reyna, 290 Kan. 666, 686, 234 P.3d 761(same), cert. denied 131 S. Ct. 532 (2010).

The trial court's discretion is not without constitutional limit. The Sixth Amendment to the United States Constitution guarantees the accused "[i]n all criminal prosecutions" the right to a trial by "an impartial jury." "Principles of Fifth Amendment due process also guarantee a defendant an impartial jury." Ristaino v. Ross, 424 U.S. 589, 595 n.6, 96 S. Ct. 1017, 47 L. Ed. 2d 258 (1976). The Supreme Court has acknowledged that an adequate voir dire is essential to the realization of these due process protections. Morgan v. Illinois, 504 U.S. 719, 729-30, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992) (noting that part of guarantee of defendant's right to impartial jury is an adequate voir dire; without it, the trial judge cannot fulfill his or her responsibility to remove those who cannot impartially follow instructions and evaluate the evidence).

We "will find an abuse of discretion if the court unconstitutionally restricted [a capital defendant's] questioning during voir dire." United States v. McVeigh, 153 F.3d

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1166, 1205 (10th Cir. 1998), disapproved on other grounds by Hooks v. Ward, 184 F.3d 1206 (10th Cir. 1999).

2. Did scope of voir dire rulings violate Kansas law?

Robinson argues the trial court consistently denied counsel's efforts to utilize case-specific questioning to detect and disqualify panelists who would not realistically consider a life sentence in violation of K.S.A. 22-3408, 22-3410, 22-3412, and the holding in State v. Kleypas, 272 Kan. 894, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002), overruled on other grounds by Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006). To frame the issue properly, it is important to understand Judge Anderson's rulings pertaining to the scope of voir dire and the events giving rise to them.

At the outset of the second phase of jury selection, small group voir dire, defense counsel injected case-specific facts into his line of questioning, specifically disclosing that Robinson had been charged with capital murder involving the killings of six women, including two 19 year olds, one of whom was in a wheelchair. The State objected, arguing defense counsel was improperly staking out jurors ("staking" jurors is the practice of asking case-specific questions designed to commit prospective jurors to a particular vote or to disclose how they would vote when faced with certain case-specific facts). Judge Anderson overruled the objection, explaining defense counsel was entitled to go into the factual basis of the charges to the extent it was consistent with the anticipated trial evidence or reported media facts. However, Judge Anderson cautioned defense counsel not to phrase such questions in a manner intended to elicit a commitment or promise from prospective jurors.

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Defense counsel continued to disclose case-specific facts and incorporate them into questioning throughout the first 2 days of the second phase of jury selection, where the parties examined prospective jurors in panels of six on topics of pretrial publicity and the death penalty. During this time, defense counsel also began to incorporate case-specific facts into questions about how prospective jurors would decide the sentencing issue. For example, Robinson's counsel began to ask how much weight jurors would assign to a defendant's background and whether this type of mitigation evidence would be sufficient to warrant a life sentence.

Judge Anderson grew increasingly concerned that Robinson's line of questioning was staking out the jury預 concern compounded by the fact that jurors were answering these questions devoid of any knowledge of the law governing the sentencing decision. On the morning of September 20, 2002, after completing 2 full days of small group voir dire, Judge Anderson established new guidelines for handling case-specific questions. He made clear that defense counsel could continue to disclose potentially inflammatory case-specific facts, including information regarding the victims, to determine whether they rendered potential jurors biased. However, Judge Anderson believed the case-specific questioning should be compartmentalized, raising those facts during questions about bias rather than sentencing. Defense counsel objected, saying several veniremembers had expressed in questionnaire responses that a person who committed crimes involving certain case-specific facts deserved to die. Thus the defense believed that inflammatory case-specific facts were "inextricably intertwined" with the sentencing issue.

Judge Anderson clarified:

"I want to make it very clear. I am not prohibiting the defense from going into the basic sketch of the factual allegations in the fashion that [defense counsel] gave the other day. I am requiring that that not be rolled into and brought up in the midst of a comparison between the aggravating and mitigating circumstances, because I do believe


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that the fashion which it's been raised during the last session Wednesday is tantamount to testing the jury to determine whether the specific, albeit very brief, factual allegations of the State would be weighed by the jury against the very generic mitigating circumstance without the factual comparison which we can't do because we are essentially getting into taking a vote on death penalty issues when we start doing that which would produce a juror that essentially would vote favorably for the defense and we are staking out the jury when we get to that point.
"I want you both to thoroughly explore the attitudes of the jury under Witherspoon. But I don't want to get into a determination during voir dire as to what this individual juror's position is on it and how they would vote on it and how much weight they would attach and whether that's over the threshold of overcoming the aggravating circumstance which is what I think you were getting into the other day. That's why I'm requiring that that factual basis be brought up during the portion of the voir dire. They're entitled to know it and you said to almost all of them, 'Do you know what the factual allegations are?' The process that we went through the other day did produce numbers of jurors who said they just didn't think there was anything that was going to convince them not to vote for the death penalty because of the factual allegations of the case.
"The defendant's voir dire has been effective in determining those jurors who cannot do this process of giving meaningful consideration to mitigating circumstances, and I do not believe this is contrary to the Constitution or to the case law counsel is citing. I stand by my ruling in that regard." (Emphasis added.)


After the district judge ruled, defense counsel continued to inform prospective jurors of the alleged case-specific facts they believed to be most inflammatory or which had the greatest potential to create bias among members of the venire, including the fact that multiple people were murdered, along with the gender, age, and disability status of the victims. After disclosing the case-specific allegations, defense counsel consistently asked prospective jurors whether they could remain impartial.

In several instances, defense counsel asked these case-specific questions in the context of sentencing. For example, defense counsel asked Juror 283 whether she could

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realistically consider a life sentence knowing the victims in this case were women, after her questionnaire responses expressed that people who prey on innocent women are sick and evil. Similarly, Juror 177 disclosed in questionnaire responses his belief that people who prey on weaker victims should be punished severely. Defense counsel explored the possibility that this view would control his sentencing decision given that all of Robinson's alleged victims were women, including one confined to a wheelchair. While exploring death penalty views with Juror 542, Robinson's counsel asked whether as a father of a young daughter, this juror could serve impartially, knowing Robinson was charged with killing young, teenage women. Defense counsel asked Juror 484 whether her work counseling sex abuse victims would prevent her from serving impartially, given the State's allegations of Robinson's violence against women and his participation in BDS&M activity. Defense counsel asked Juror 398 whether he could vote for a life sentence in a case involving a serial killer based on his questionnaire responses suggesting that life imprisonment would not be an appropriate punishment in that instance. Defense counsel employed similar lines of questioning with Jurors 463, 398, and 366.

Judge Anderson also allowed the defense to utilize case-specific questioning during the third phase of jury selection, general voir dire. During this phase, Robinson's counsel asked panel members whether certain case-specific facts, including violence against women, BDS&M activity, adultery, gruesome photographs, and other case-specific evidence anticipated at trial would render them incapable of serving as impartial jurors.

Robinson identifies only two instances relevant to this claim where the trial court enforced its ruling and limited the scope of inquiry. The first occurred during defense counsel's questioning of prospective Juror 205, and the second occurred during defense counsel's questioning of Juror 246. A review of the transcript confirms that in both

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instances, defense counsel's questions invited these panelists to compare the various theories or categories of aggravation and mitigation that were likely to be at issue in the case and discuss how such evidence would affect their sentencing decision, i.e., staked out the jury.

Short of such a line of inquiry, Judge Anderson did not substantially limit Robinson's case-specific inquiry during voir dire. He allowed the defense to inform prospective jurors of sensitive case-specific allegations during small group voir dire; explore potential juror bias related to such facts; examine whether case-specific facts prevented jurors from realistically considering a life sentence, particularly when questionnaire responses indicated potential case-specific bias; and discuss potential bias in response to case-specific evidence during general voir dire. Contrary to Robinson's assertion, Judge Anderson's rulings did not categorically prohibit case-specific questioning. Nor did they limit case-specific questioning in the context of sentencing. Instead, the rulings limited case-specific questioning only to the extent such questions called on prospective jurors to assign weight to case-specific facts under Kansas' weighing equation and to disclose their likely sentencing decision in light of such facts.

With a clearer understanding of Judge Anderson's rulings, we return to the analysis of Robinson's claim that they violated Kansas' voir dire statute, which provides:

"The prosecuting attorney and the defendant or his attorney shall conduct the examination of prospective jurors. The court may conduct an additional examination. The court may limit the examination by the defendant, his attorney or the prosecuting attorney if the court believes such examination to be harassment, is causing unnecessary delay or serves no useful purpose." K.S.A. 22-3408(3).


By limiting case-specific questioning that required prospective jurors to assign weight to aggravating or mitigating circumstances and provisionally decide the sentence

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in light of such facts, Judge Anderson's rulings can be construed reasonably from the record as an attempt to avoid "unnecessary delay" on a subject that served "no useful purpose," i.e., staking out the jury. As such, the rulings reflect a permissible exercise of lawful discretion under Kansas' voir dire statute.

For the same reasons, Robinson's arguments under K.S.A. 22-3410 and K.S.A. 22-3412 are equally unavailing. K.S.A. 22-3410 entitles parties to "challenge any prospective juror for cause." K.S.A. 22-3412 provides that defendants "charged with an off-grid felony . . . shall be allowed 12 peremptory challenges." Robinson argues Judge Anderson's rulings "prevented counsel from eliciting biases that would give rise to challenges for cause" and "impaired the defense's use of peremptory challenges." This argument is founded on the assumption that Judge Anderson categorically denied Robinson opportunity to explore juror bias related to case-specific factual allegations. This clearly was not the case.

Robinson cites to several state court decisions from other jurisdictions that stand for the general proposition that jurors in capital proceedings who cannot consider both available sentencing options are not qualified to serve. Robinson also cites State v. Jackson, 107 Ohio St. 3d 53, 836 N.E.2d 1173 (2005), and United States v. Flores, 63 F.3d 1342 (5th Cir. 1995), for the corollary proposition that defendants should be informed of inflammatory case-specific facts (a 3-year-old victim and a victim who was a known drug dealer in those cases) in order to discern potential bias. In his Rule 6.09 letter, Robinson also cites to State v. Clark, 981 S.W.2d 143, 147 (Mo. 1998), for a similar proposition.

These holdings arose from a trial court's categorical refusal to allow defendants any opportunity to disclose or question jurors on case-specific facts during voir dire. As discussed above, Judge Anderson's rulings did not bar such inquiry. Defense counsel

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freely informed prospective jurors of inflammatory case-specific facts and inquired whether such facts rendered them partial.

Finally, Robinson argues Judge Anderson's rulings violated the holding of Kleypas. There the capital defendant argued "the trial court erred in denying his request for a separate sentencing jury," resulting in prejudice "because the same jury that heard his guilt phase also heard the penalty phase argument." 272 Kan. at 994. More specifically, defendant argued that the failure to provide a separate sentencing jury placed him in the "untenable position of being unable to voir dire the jury as to its bias regarding certain aggravating circumstances, such as his prior record, for fear of prejudicing the jury in the guilt phase." 272 Kan. at 995. However, we rejected this argument because Kleypas failed to take advantage of provisions within the capital sentencing scheme allowing him to question jurors about his criminal record and remove those biased at the start of the penalty phase:

"K.S.A. 21-4624(b) provides a method for the defendant in every capital-murder case to remove biased jurors during the penalty phase. The defendant is entitled to ask questions during voir dire before the sentencing phase of the trial begins. Here, Kleypas chose not to voir dire the jurors concerning the binding effect of his prior murder conviction or any of the aggravating circumstances. However, that procedure existed as a method of removing potentially biased jurors for cause." 272 Kan. at 995.


Robinson believes the above-cited language in Kleypas squarely authorizes case-specific questions regarding a panelist's willingness and ability to consider a life sentence. To the contrary, Kleypas did not address the permissible scope of voir dire in a capital proceeding. Even if it had, Judge Anderson's ruling did not preclude counsel from exploring whether case-specific facts rendered prospective jurors unqualified for service. And, like the defendant in Kleypas, Robinson did not request a separate opportunity to

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voir dire the jury after conviction and before the start of the penalty phase. See 272 Kan. at 995. Judge Anderson's rulings are not inconsistent with our holding in Kleypas.

3. Did scope of voir dire rulings violate constitutional rights?

Robinson also argues Judge Anderson's voir dire rulings violated his federal constitutional rights under the Sixth, Eighth, and Fourteenth Amendments.

Any question concerning the constitutionally permissible scope of voir dire in capital proceedings necessarily begins with a discussion of Morgan v. Illinois, 504 U.S. 719, 729-30, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992), where the Supreme Court recognized a capital defendant's constitutional right to a "life-qualified" jury and the concomitant right to remove for cause on the ground of bias any prospective juror who will automatically vote for the death penalty irrespective of the facts or the trial court's instructions of law. Morgan recognized that a capital defendant must be afforded a reasonable opportunity to voir dire prospective jurors to effectively remove those who are not "life-qualified." 504 U.S. at 733-34. Morgan ultimately held the petitioner "was entitled, upon his request, to inquiry discerning those jurors who, even prior to the State's case in chief, had predetermined the terminating issue of his trial, that being whether to impose the death penalty." 504 U.S. at 736.

Robinson claims Judge Anderson imposed a categorical prohibition on case-specific voir dire questioning in violation of his constitutional rights. The argument is legally and factually suspect. First, since Morgan, the majority of federal appellate courts have rejected the notion that the Constitution mandates case-specific questioning during voir dire in capital proceedings. Foremost among this authority is McVeigh, 153 F.3d 1166, the appeal of the defendant convicted of bombing the Murrah Federal Building in Oklahoma City, Oklahoma. There, defendant challenged the trial court's limitation on

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case-specific questioning during voir dire. The Tenth Circuit first identified two categories of Morgan-related inquiries advanced by the defense: (1) "'general Morgan questions'" that inquired whether the juror would automatically impose the death penalty if a defendant were convicted of a capital offense; and (2) "'specific Morgan questions'" that inquired whether the facts of the bombing, as revealed through pretrial publicity, had predisposed prospective jurors toward automatically imposing the death penalty on anyone convicted. 153 F.3d at 1206. The Tenth Circuit found the trial court had not limited any of the properly phrased "general Morgan questions," but it had precluded "specific Morgan questions." 153 F.3d at 1207-08.

Even so, the Tenth Circuit found no abuse of discretion, reasoning that defendant's case-specific inquiry exceeded constitutional requirements under Morgan:

"Essentially, the questions were designed to ascertain whether the jurors felt that the circumstances of the bombing were so aggravating that no mitigating factor could compensate. Thus, these were case-specific questions seeking to determine what prospective jurors thought of the death penalty in regards to this particular case, rather than the jurors' core value system regarding imposition of the death penalty. Morgan, however, is designed to illuminate a juror's basic beliefs 'regardless of the facts and circumstances of conviction,' Morgan, 504 U.S. at 735, 112 S. Ct. 2222, not to allow defendants to pre-determine jurors' views of the appropriate punishment for the particular crime charged. Morgan does not require that the questions at issue be asked." 153 F.3d at 1208.


The Tenth Circuit was satisfied that the district court's safeguards擁ncluding use of a jury questionnaire; appropriate instructions; and abstract life-qualifying questions用rovided defendant adequate opportunity to identify juror bias. 153 F.3d at 1208-09.

The majority of federal circuits addressing the issue have adopted the same rationale. See Oken v. Corcoran, 220 F.3d 259, 266 (4th Cir. 2000) (state court's finding

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that abstract voir dire questions addressing prospective jurors' ability to consider life sentence were constitutionally adequate and neither contrary to nor an unreasonable application of Morgan); Trevino v. Johnson, 168 F.3d 173, 183 (5th Cir. 1999) (state trial court's refusal to allow voir dire inquiry on "youth" as a mitigating factor did not give rise to a constitutional violation; Morgan only requires jurors be asked whether they would automatically impose the death penalty upon conviction); McQueen v. Scroggy, 99 F.3d 1302, 1330 (6th Cir. 1996) (abstract, life-and-death qualification questions were sufficient to satisfy constitutional rigor), overruled on other grounds by In re Abdur'Rahman, 392 F.3d 174 (6th Cir. 2004).

Several state courts have followed suit. See Hagood v. Alabama, 777 So. 2d 162, 177 (Ala. Crim. App. 1998) ("'"[T]he use of hypothetical questions is of doubtful propriety certainly where one aspect of the putative evidence is singled out to probe for a sympathetic commitment as much as to explore for an impartial mind." [Citation omitted.]. . . On voir dire, "[a] party may not . . . solicit a promise to return a particular verdict."' [Citations omitted.]"); Lucas v. State, 274 Ga. 640, 646, 555 S.E.2d 440 (2001) ("'improper to require the juror to enumerate hypothetical circumstances in which she might or might not vote to impose the death penalty'"); State v. Ball, 824 So. 2d 1089, 1110 (La. 2002) ("[V]oir dire does not encompass unlimited inquiry by defendant into all possible prejudices of prospective jurors, including their opinions on evidence, or its weight, hypothetical questions, or questions of law that call for any prejudgment of supposed facts in the case."); State v. Stanko, 376 S.C. 571, 576-77, 658 S.E.2d 94 (2008) (limiting case-specific voir dire not an abuse of discretion where questionnaire explored potential impartiality and trial court used abstract questions to life qualify jurors); State v. Moeller, 616 N.W.2d 424, 442 (S.D. 2000) ("It was proper for State to use the hypothetical concept of a mental defect or a 15-year-old person to explain the concept of a mitigating factor. However, it would have been improper for it to then ask the potential juror whether he would impose a life sentence or death based upon that hypothetical,

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especially if those were truly the facts of the case. Such a question would be akin to 'staking out' the potential juror's responses, and that is not permitted."); Schmitt v. Commonwealth, 262 Va. 127, 141, 547 S.E.2d 186 (2001) (no abuse of discretion where trial court prevented defense from asking prospective jurors to speculate as to "whether they would automatically impose a death sentence for certain types of killings or under certain hypothetical circumstances").

Again, the very premise of Robinson's argument that Judge Anderson categorically prohibited case-specific questioning is unsupported by the record. As set forth above, Judge Anderson permitted defense counsel to disclose case-specific facts and to inquire whether those facts rendered prospective jurors unable to be impartial or prevented them from meaningfully considering mitigation evidence or a life sentence.

Even the minority of courts that have found case-specific questioning to be required under certain circumstances would not take issue with Judge Anderson's rulings. These courts have adopted a balancing approach, finding it improper to categorically deny case-specific questioning but also recognizing that such questioning is not without limits and cannot be used to stake out jurors. These courts have found constitutional requirements to be satisfied as long as prospective jurors are informed of potentially inflammatory case-specific facts and/or the defense is allowed to explore whether such facts render prospective jurors unable to be impartial. See United States v. Wilson, 493 F. Supp. 2d 402, 405 (E.D.N.Y. 2006); United States v. Fell, 372 F. Supp. 2d 766, 769-71 (D. Vt. 2005); United States v. Johnson , 366 F. Supp. 2d 822, 848-49 (N.D. Iowa 2005); People v. Carasi, 44 Cal. 4th 1263, 1285-87, 190 P.3d 616 (2008); People v. Coffman and Marlow, 34 Cal. 4th 1, 46-47, 17 Cal. Rptr. 3d 710, 96 P.3d 30, 82 Cal. Rptr. 3d 265 (2004); Ellington v. State, 292 Ga. 109, 127-28, 735 S.E.2d 736 (2012). Robinson was able to do just that notwithstanding Judge Anderson's rulings.

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Robinson again cites Jackson, 107 Ohio St. 3d 53, where the Ohio Supreme Court held that the trial judge should have informed jurors the victim was a 3-year-old child, which would have elicited more informed responses to abstract questions regarding their impartiality. 107 Ohio St. 3d at 62-65. Judge Anderson not only allowed the defense to inform prospective jurors of case-specific facts, but also gave counsel leeway to explore panelists' impartiality and ability to consider both sentencing options notwithstanding these facts. Jackson does not alter our conclusion.

Robinson also relies on Uttecth v. Brown, 551 U.S. 1, 127 S. Ct. 2218, 167 L. Ed. 2d 1014 (2007). However, Uttecth considered whether a trial court properly excused a juror who expressed uncertainty as to his ability to impose a sentence of death. The proper scope of voir dire and the permissibility of case-specific questioning were not issues before the Supreme Court. Uttecth is inapposite.

Robinson had the opportunity to formulate his own questions regarding case-specific facts in the questionnaire. During small group voir dire, the defense disclosed sensitive case-specific allegations and probed jurors for potential bias, both in general and specific to sentencing, in response to such facts. Judge Anderson's rulings limited inquiry only when it required prospective jurors to prejudge the penalty issue based on a general description of case-specific facts. Defendant had ample opportunity to identify those unqualified to serve. See People v. Sanders, 11 Cal. 4th 475, 539, 46 Cal. Rptr. 2d 751, 905 P.2d 420 (1995) (no error in trial court's limiting hypothetical questions requiring jurors to provide advisory opinion based on preview of evidence). We find no constitutional violation in Judge Anderson's rulings.

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4. Did scope of voir dire rulings conceal mitigation impairment?

Robinson believes Judge Anderson imposed a "blanket prohibition" on case-specific mitigation inquiry, preventing the defense from identifying panelists who were mitigation-impaired, in violation of the Eighth Amendment and Sections 1, 5, 9 and 10 of the Kansas Constitution Bill of Rights.

Robinson does not suggest the Kansas Constitution affords him protections beyond those provided under the United States Constitution, and we have so far held that these state constitutional provisions are generally subject to the same analysis as their federal counterparts. See State v. Scott, 265 Kan. 1, Syl. カ 1, 961 P.2d 667 (1998) (Eighth Amendment and Section 9 of the Kansas Constitution Bill of Rights are nearly identical and construed similarly); State ex rel. Tomasic v. City of Kansas City, 237 Kan. 572, 583, 701 P.2d 1314 (1985) (Section 1 of the Kansas Constitution Bill of Rights given same effect as the Equal Protection Clause of the Fourteenth Amendment); State v. Next Door Cinema Corp., 225 Kan. 112, 115, 587 P.2d 326 (1978) (Fourteenth Amendment due process standard applies to state due process challenge under Section 10 of the Kansas Constitution Bill of Rights). As such, we find federal authority on the subject persuasive.

Robinson's claim is both legally and factually suspect. First, the majority of federal courts have rejected the view that defendants have a constitutional right to case-specific mitigation questioning during voir dire. United States v. Tipton, 90 F.3d 861, 879 (4th Cir. 1996) (no error in refusing to allow detailed questioning during voir dire concerning specific mitigating factors), cert. denied 520 U.S. 1253 (1997); United States v. McCullah, 76 F.3d 1087, 1113-14 (10th Cir. 1996) (Morgan requires questioning during voir dire regarding whether jurors would automatically impose the death penalty and does not require specific questioning regarding mitigating factors), cert. denied 520 U.S. 1213 (1997); Wilson, 493 F. Supp. 2d at 405 (allowing voir dire on specific types of mitigation

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or aggravation evidence does "not serve the goal of uncovering impermissible bias, but only beg[s] follow-up questions that trend toward stake-out or pre-commitment questions").

Numerous state courts have adopted the same view. People v. Jackson, 182 Ill. 2d 30, 61-62, 695 N.E.2d 391 (1998) (trial court properly refused to ask case-specific questions regarding aggravating and mitigating circumstances; abstract questions regarding jurors' ability to consider both sentencing options satisfied constitutional scrutiny); Evans v. State, 333 Md. 660, 675-77, 637 A.2d 117 (1994) (refusal to allow case-specific questioning on aggravating circumstances consistent with Morgan); Holland v. State, 705 So. 2d 307, 338-39 (Miss. 1997) (jurors cannot be asked to give weight to aggravators during voir dire); Witter v. State, 112 Nev. 908, 915-16, 921 P.2d 886 (1996) (case-specific questions regarding statutory aggravator would have improperly staked out jurors and were not required under Morgan or Witherspoon v. Illinois, 391 U.S. 510, 519-23, 88 S. Ct. 1770, 20 L. Ed. 2d 776 [1968]), cert. denied 520 U.S. 1217 (1997), abrogated on other grounds by Nunnery v. State, 127 Nev. Adv. Op. 69, 263 P.3d 235 (2011); State v. Fletcher, 500 S.E.2d 668, 679 (N.C. 1998) (voir dire questions comparing aggravating and mitigating circumstances improper); State v. Wilson, 74 Ohio St. 3d 381, 386-87, 659 N.E.2d 292 (1996) (Morgan does not require voir dire on specific mitigating circumstances), cert. denied 519 U.S. 845 (1996); Plantz v. State, 1994 OK CR 33, 876 P.2d 268, 279 (Okla. Crim. App. 1994) (trial court properly limited the defense's voir dire on what jurors would consider as mitigation); State v. Hill, 331 S.C. 94, 103-04, 501 S.E.2d 122 (1998) (Morgan does not require voir dire on specific mitigating circumstances).

Second, Robinson's characterization of Judge Anderson's rulings as a blanket prohibition on case-specific mitigation questioning is unsupported factually. Robinson highlights Judge Anderson's rulings sustaining the State's objections to defense counsel's

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questioning of Jurors 115 and 271. In both instances, the district judge prevented defense counsel from asking whether certain types of mitigation would outweigh aggravating circumstances and warrant a life sentence, i.e., staking out the jurors. Judge Anderson clarified that it was appropriate to ask panelists whether they would meaningfully consider a defendant's background, for example, as mitigation, but when defense counsel also asked the prospective juror to compare it to aggravating circumstances and decide whether the mitigation evidence would warrant a life sentence, the inquiry improperly staked out the panelists.

These rulings are consistent with the majority of federal and state authority. They also survive scrutiny under the minority view that disclosure of and limited questioning on highly inflammatory case-specific facts may be necessary to identify mitigation-impaired jurors. See, e.g., Carasi, 44 Cal. 4th at 1285-87 (Constitutional requirements satisfied where trial court discloses case-specific facts to jurors before asking if they would automatically vote for life or death.). Judge Anderson allowed the defense to ask panelists if they would consider certain categories of mitigation, and he also allowed the defense to disclose case-specific facts to panelists and inquire if they would still consider mitigation evidence in light of such facts.

Robinson relies on United States v. Fell, 372 F. Supp. 2d 766 (D. Vt. 2005), in support of his claim of constitutional error. However, Fell merely recognized that "rather than reject all case-specific questions, a trial court should allow such questions to be asked when they are reasonably directed toward discovering juror bias." 372 F. Supp. 2d at 771. Here, Judge Anderson did not reject all case-specific questions, and nothing in Fell suggests the balance Judge Anderson struck in his rulings violated Robinson's rights under state or federal law. See State v. Kreutzer, 928 S.W.2d 854, 864-65 (Mo. 1996) (court properly limited questioning on specific facts that sought a commitment from jurors).

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State v. Robinson (Kan., 2015)



















STATE OF KANSAS, Appellee/Cross-appellant, v. JOHN E. ROBINSON, SR., Appellant/Cross-appellee.No. 90,196SUPREME COURT OF THE STATE OF KANSASNovember 6, 2015Summaries:Source: Justia
The State charged Appellant with multiple offenses related to the murders of six women. The murders constituted parts of a common scheme or course of conduct. Appellant was sentenced to death for his convictions for two counts of capital murder. On appeal, Appellant raised nineteen general claims of reversible error covering the entire trial proceedings, as well as a variety of sub-claims. The Supreme Court (1) affirmed Appellant痴 capital murder conviction charged in Count II; (2) reversed Appellant痴 capital murder conviction charged in Count III and his first-degree murder conviction charged in Count V as unconstitutionally multiplicitous with the capital murder conviction in Count II; (3) affirmed the remainder of Appellant痴 convictions; (4) affirmed Appellant痴 sentence of death under his capital murder conviction in Count II; and (5) vacated the portion of Appellant痴 sentence designating certain of his crimes sexually motivated and remanded for a correction of the journal entry.
SYLLABUS BY THE COURT1. A constitution-based claim for venue change can arise under a theory of presumed or actual prejudice. Presumed prejudice occurs when pretrial publicity is so pervasive and prejudicial that there can be no expectation of an unbiased jury pool in the community. In deciding whether to presume prejudice under the Sixth Amendment to the United States Constitution, an appellate court considers seven factors: (1) media interference with courtroom proceedings; (2) the magnitude and tone of the coverage; (3) the size and characteristics of the community in which the crime occurred; (4) the amount of time that elapsed between the crime and the trial; (5) the jury's verdict; (6) the impact of the crime on the community; and (7) the effect, if any, of a codefendant's publicized decision to plead guilty. Actual prejudice occurs when the effect of pretrial publicity is so substantial as to taint the entire jury pool.2. K.S.A. 22-2616(1) compels a venue change when the district judge is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he or she cannot obtain a fair and impartial trial in that county. The Page 2 court considers nine factors in deciding whether community prejudice warrants a change of venue under K.S.A. 22-2616(1): (1) the particular degree to which the publicity circulated throughout the community; (2) the degree to which the publicity or that of a like nature circulated to other areas to which venue could be changed; (3) the length of time which elapsed from the dissemination of the publicity to the date of trial; (4) the care exercised and the ease encountered in the selection of the jury; (5) the familiarity with the publicity complained of and its resultant effects, if any, upon the prospective jurors or the trial jurors; (6) the challenges exercised by the defendant in the selection of the jury, both peremptory and for cause; (7) the connection of government officials with the release of the publicity; (8) the severity of the offense charged; and (9) the particular size of the area from which the venire is drawn.3. The Sixth and Fourteenth Amendments to the United States Constitution guarantee criminal defendants the right to counsel of choice, and due process prohibits judicial officers from punishing or retaliating against a defendant for exercising this right.4. Not every restriction on counsel's time or opportunity to investigate or to consult with his or her client or to otherwise prepare for trial violates a defendant's Sixth Amendment right to counsel. Only an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay violates the right to counsel, and this right cannot be manipulated to impede the efficient administration of justice.5. Pursuant to K.S.A. 22-3401, continuances may be granted to either party for good cause shown. In a criminal case, the decision to continue a case lies within the sound discretion of the district court, but where a defendant claims the denial of continuancePage 3 interfered with his or her ability to present a defense, an appellate court reviews the question de novo.6. Where a continuance is sought to retain new counsel, a trial court considers the following five factors: (1) whether a continuance would inconvenience witnesses, the court, counsel, or the parties; (2) whether other continuances have been granted; (3) whether legitimate reasons exist for the delay; (4) whether the delay is the fault of the defendant; and (5) whether denial of a continuance would prejudice the defendant.7. The five factors used to consider a request for a continuance for the purpose of retaining new counsel do not apply in situations where one of several defense attorneys withdraws from the case and the defendant seeks a continuance to provide the remaining members of the defense team additional time to prepare for trial but does not seek new counsel.8. In this case, the trial court did not abuse its discretion in denying requests for a continuance to provide appointed counsel, two experienced death penalty litigators, additional time to prepare a guilt phase defense following the withdrawal of retained counsel, where appointed counsel had represented defendant for nearly 7 months prior to retained counsel's withdrawal; appointed counsel still had another 7 months to prepare because the district judge had granted a previous, lengthy continuance; appointed counsel had the benefit of the work prepared by their predecessors over the course of nearly 2 years; appointed counsel had adequate resources, including the two lead attorneys and their two associate attorneys, one of whom entered his appearance following thePage 4 withdrawal of retained counsel, an investigator, and several assistants; and defendant never sought appointment of new counsel following retained counsel's withdrawal.9. When requesting a continuance to provide defendant additional time to develop a mitigation defense for the penalty phase of a capital murder trial, defendant must make an adequate proffer as to what mitigation evidence would be developed if relief were granted.10. The Fourth Amendment to the United States Constitution requires that search warrants be issued by a neutral and detached magistrate.11. The United States Supreme Court has recognized at least two circumstances in which a magistrate fails to satisfy the neutral and detached requirement. First, a magistrate who is involved in or who exercises law enforcement powers of the executive branch lacks neutrality and detachment. Second, a magistrate with a direct pecuniary interest in the outcome of the warrant proceedings also lacks neutrality and detachment.12. In assessing whether a magistrate lacks neutrality and detachment, an appellate court considers whether the circumstances would offer a possible temptation to the average judge to abandon the correct balance of consideration between the State and the accused. In applying this standard, it conducts an individualized and contextual inquiry, in light of the totality of the circumstances.Page 5 13. The circumstances here謡hen the issuing magistrate had prosecuted the defendant 15 years earlier for unrelated financial crimes妖o not establish a violation of the neutral and detached magistrate requirement. The magistrate had disengaged completely from law enforcement, had no involvement in any subsequent investigation or prosecution of the defendant, and had no knowledge of the defendant's possible involvement in other missing persons investigations; the former prosecution and current capital murder investigation did not arise from a common investigation or single transaction or event; and any overlapping facts between the magistrate's former prosecution of defendant and the current investigation were not probative of the probable cause determinations made by the magistrate.14. When K.S.A. 22-2503 and K.S.A. 22-2505 are read together and considered alongside legislative amendments subsequent to the 1970 codification of the Kansas Code of Criminal Procedure, it is evident the legislature intended that district judges retain their pre-Code authority to issue search warrants executable statewide.15. In this case, Lenexa police exercised "their powers as law enforcement officers" by planning, coordinating, and executing trash pulls from the defendant's Olathe residence over the course of several weeks in furtherance of their investigation, and this activity exceeded the officers' territorial jurisdiction pursuant to K.S.A. 22-2401a(2)(a).16. When a defendant seeks to suppress evidence based on a violation of state law unrelated to the Fourth Amendment to the United States Constitution or ァ 15 of thePage 6 Kansas Constitution Bill of Rights, application of the exclusionary rule does not inevitably follow.17. K.S.A. 22-3216(1) provides a vehicle for defendants aggrieved by an unlawful search and seizure to move to suppress evidence, but it does not compel the trial court to grant such relief for any search conducted in violation of state law.18. The limitation on the territorial jurisdiction of city officers was intended to protect the local autonomy of neighboring cities and counties, not to create an individual right.19. Where, as here, a search is conducted in violation of state law and the statute violated does not vest the defendant with an individual right, does not contemplate exclusion of evidence as a remedy, and its violation results in no cognizable injury to defendant's substantial rights, suppression of the evidence is not an appropriate remedy.20. A written request for assistance directed to officers in other jurisdictions that is signed by an officer from the requesting jurisdiction有inn County in this case耀atisfies the requirements of K.S.A. 22-2401a(2)(b) and confers jurisdiction upon officers from other jurisdictions to execute a search warrant in Linn County.21. K.S.A. 22-2401a(5) authorizes law enforcement officers in Johnson County to execute search warrants countywide. Based on the plain language of this statute, reinforced by the context and history giving rise to its enactment, Lenexa and OverlandPage 7 Park city police had territorial jurisdiction to execute warrants to search defendant's residence and storage unit located within the city limits of Olathe.22. On the facts presented here, law enforcement officers did not search or seize trash within the curtilage of defendant's home and defendant did not have a reasonable expectation of privacy in his discarded trash, when it had been set out for collection near the end of an asphalt parking area, against the curb line, and approximately 10 to 12 feet outside of a fence that surrounded his residence.23. The Kansas Wiretap Act requires prosecutors seeking to intercept telephonic communications to make a showing of necessity for this extraordinary investigative tool by including in the wiretap application a complete statement on whether other investigative procedures have been tried and failed or on why other methods reasonably appear to be dangerous or unlikely to succeed if tried.24. The purpose of the necessity requirement for a wiretap is to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose a crime and to prevent law enforcement from using wiretaps as a first step in an investigation.25. General allegations and boilerplate language fail to satisfy the necessity requirement for a wiretap. However, an appellate court employs a standard of reasonableness to evaluate the State's good-faith effort to use alternative investigative means or its failure to do so because of danger or a low probability of success. LawPage 8 enforcement officers are not required to exhaust every possible technique before resorting to a wiretap葉hey must instead demonstrate that wiretapping is not the first meaningful step in the investigation.26. In this case, general language in the State's wiretap application that the use of search warrants would not further the goals of the investigation did not violate the necessity requirement, where the application and supporting affidavit demonstrated that law enforcement made a reasonable good-faith effort to utilize other available normal and less intrusive investigative techniques before resorting to a wiretap, and a general statement regarding the ineffectiveness of search warrants was supported by particularized, case-specific information contained throughout the application and affidavit.27. In this case, the trial court did not abuse its discretion or violate the defendant's substantive rights under state or federal law in limiting voir dire on certain case-specific facts where the defendant had the opportunity to formulate his own case-specific questions in the juror questionnaire; the defense disclosed sensitive case-specific facts during small group voir dire and inquired whether such facts rendered panelists biased; defendant was allowed to question panelists during general voir dire on case-specific evidence anticipated at trial; and the district judge limited voir dire only when the questions required prospective jurors to prejudge the penalty issue based on a general description of case-specific facts.28. The heightened reliability standard applied in death penalty appeals does not bar the application of the invited error doctrine.Page 9 29. In capital murder trials, a prospective juror may be excluded for cause because of his or her death penalty views if those views prevent or substantially impair the performance of his or her duties as a juror. The same standard applies whether the challenge is directed at death-leaning or life-leaning jurors.30. In this case, the trial court did not abuse its discretion in denying the defendant's challenges for cause of veniremembers who expressed support or favor for the death penalty. All of the veniremembers at issue professed their understanding of and fidelity to the law, and the district judge's rulings were fairly supported by the record.31. In this case, the trial court did not abuse its discretion in denying the defendant's challenges for cause of veniremembers who were allegedly biased by pretrial publicity. The record fairly supports the district judge's findings that the veniremembers at issue could set their opinions aside, adhere to the court's instructions, and render a verdict based on the evidence.32. In this case, the trial court did not apply a more lenient standard of qualification to jurors who supported the death penalty, in violation of defendant's substantive due process rights. The record confirms the district judge's rulings were supported by the voir dire testimony of the veniremembers at issue.Page 10 33. When improper or prejudicial remarks are made by one veniremember and heard by other veniremembers during the jury selection process, the test of juror impartiality is whether those jurors actually seated can lay aside their impressions or opinions and render a verdict based on the evidence.34. The trial court did not abuse its discretion in this case in failing to strike all panelists on a small group panel exposed to a juror's inflammatory comments about the defendant when the juror's comments were isolated and not founded on any specialized knowledge; the defendant failed to pursue curative measures; and the only panelist to eventually serve on the jury declared his impartiality.35. The trial court did not abuse its discretion in this case in granting the State's challenge of a juror who expressed strong opposition to the death penalty when she consistently expressed uncertainty about her ability to fairly consider both sentencing options.36. An appellate court employs a two-part balancing test in analyzing the propriety of a district court's use of an anonymous jury identification system. First, there must be a reason to protect the jurors from identification, a decision left to the trial court's discretion. Second, the court must take reasonable precautions to minimize any prejudicial effects.Page 11 37. In this case, the trial court did not abuse its discretion or violate the defendant's substantial rights by employing a juror numbering system to identify veniremembers and seated jurors when the district judge identified the potential for invasion of juror privacy by the media or other overzealous individuals, particularly in the absence of sequestration, as the reason for the system and expressly informed the jury that the procedure was unrelated to juror safety.38. To establish the existence of a common scheme or course of conduct pursuant to K.S.A. 21-3439(a)(6), the State must show that the alleged intentional and premeditated murders are related to one another in some way.39. In this case, evidence that the defendant lured his victims with promises of financial gain, employment, or travel; exploited them sexually or financially; used similar methods to murder them and dispose of their bodies; and used similar methods of deception to conceal the crimes was sufficient to support the jury's finding of the existence of a common scheme or course of conduct.40. In this case, the entirety of the defendant's course of conduct, which straddled the date of enactment of the capital murder statute, could be considered and was sufficient to support the defendant's convictions on the capital murder charges under K.S.A. 21-3439(a)(6) when at least one of the elements of the charged offense was not committed until after the enactment of the capital murder statute.Page 12 41. When, as here, a defendant is charged and convicted of two counts of capital murder, those convictions are multiplicitous when the State alleged and proved that all of the murders were connected by the same common scheme or course of conduct and the State did not allege or prove the existence of a separate, distinct common scheme or course of conduct for each capital count.42. A conviction for first-degree murder of one of the victims included in a series of murders alleged under a separate charge of capital murder is multiplicitous with a conviction on the charge of capital murder.43. The State's complaint was not defective and did not fail to confer jurisdiction on the district court in this case because the complaint as a whole was clear what the charges were and that defendant was the person charged.44. The failure to lodge a contemporaneous objection to the admission of evidence typically forecloses subsequent challenge on appeal. However, in capital murder appeals, K.S.A. 21-4627(b), recodified as K.S.A. 2014 Supp. 21-6619(b), compels review of any issue raised in defendant's brief, even if not preserved below. Yet this statute does not require this court to treat the record other than as it is presented to us on appeal, and we approach such compulsory review mindful that the defendant bears the burden of demonstrating error on the record submitted.Page 13 45. Accurate printouts of e-mails are akin to duplicate originals and deemed valid reproductions of electronically stored information for best evidence purposes under K.S.A. 60-467(a), even when messages have been forwarded or contain message strings.46. E-mail exhibits found in a defendant's possession or under his or her control and seized pursuant to a search warrant can be authenticated by law enforcement officers' testimony describing the circumstances in which the writings were seized.47. Testimony that merely suggests a defendant intended to commit a crime falls outside the scope of K.S.A. 60-455. The evidentiary restriction is triggered by evidence that a person actually committed a crime or civil wrong on a specified occasion, not by speculation.48. The trial court did not abuse its discretion in this case in allowing a detective to testify to the number of tools seized during the search of the defendant's property when the record establishes a logical connection between the tools, the defendant, and the capital murder charges.49. The trial court properly refused to grant a mistrial in this case after a witness' testimony deviated from the State's proffer when the district judge instructed the jury to disregard the testimony.Page 14 50. The trial court did not abuse its discretion in this case in allowing a medical examiner to testify that a fracture to a victim's right ulna was consistent with a defensive injury when the evidence established the expert's qualifications to render such an opinion.51. In this case, the State offered sufficient evidence that the defendant took the victim named in the aggravated kidnapping charge by way of deception with the specific intent to inflict bodily injury upon her.52. Because the State's two theories as to how the defendant took the victim named in the aggravated kidnapping charge by deception could support but one conviction, the State did not rely on multiple acts in this case.53. The prosecutor erred in this case by suggesting a victim may have witnessed her mother's murder before her own demise, but the isolated remarks did not prejudice the defendant.54. The prosecutor erred in this case by asserting that the defendant ripped one victim's baby out of her arms, but the remark did not prejudice the defendant.55. The phrases "common scheme" and "course of conduct" are commonly understood and require no specific definition in jury instructions under K.S.A. 21-3439(a)(6). ThePage 15 lack of a statutory definition for the phrases "common scheme" and "course of conduct" does not render the capital murder statute unconstitutionally vague.56. In this case, the trial court's instruction on venue was error, but the defendant failed to establish that the jury would have reached a different verdict had the instruction error not occurred.57. In this case, the cumulative effect of the identified guilt phase errors did not substantially prejudice defendant or deny him a right to a fair trial.58. In this case, there is no reasonable possibility that a juror's use of a Bible during penalty phase deliberations affected the jury's sentencing decision when the juror consulted the Bible only outside of deliberations, he did not use or read from the Bible in the jury room, he made an isolated remark about the Bible only after the jury's vote had confirmed its unanimity as to sentence, and the district judge delivered a curative instruction.59. In this case, the State's evidence demonstrated a nexus between defendant's killing of more than one person and the charged capital offenses and was sufficient to establish the existence of the multiple murder aggravating circumstance under K.S.A. 21-4625(2).Page 16 60. The prosecutor's closing argument comment on the defendant's demeanor was error in this case, but it did not prejudice the defendant.61. The prosecutor's statement in this case that he would "bet" the victims' families would not agree that defendant posed a low risk of violence in prison was error, but it did not prejudice the defendant.62. In this case, the prosecutor's interrupted personalized attack of defense counsel's argument was error, but it did not prejudice the defendant.63. The penalty phase instructions in this case did not create an unreasonable risk that jurors would fail to recognize that they must find that aggravating factors outweighed mitigating factors beyond a reasonable doubt in order to impose a death sentence.64. The penalty phase instructions in this case made clear that mitigating circumstances were to be determined by each individual juror and did not need to be found by all members of the jury in order to be considered by an individual juror.65. The penalty phase instructions in this case did not encourage a death verdict.Page 17 66. The penalty phase instructions in this case did not undermine the jury's historic nullification power or otherwise create a reasonable likelihood that jurors would have applied instructions in a way that prevented consideration of constitutionally relevant evidence.67. The defendant was not improperly sentenced under a void capital sentencing scheme under the facts in this case.68. In this case, the cumulative effect of the identified errors during the penalty phase did not substantially prejudice the defendant or deny him the right to a fair penalty phase proceeding.69. In this case, the trial court erred by designating Counts I through III as sexually motivated in the journal entry of judgment where the State did not seek such a designation and the district judge did not make supporting findings when pronouncing the sentence from the bench.Appeal from Johnson District Court; JOHN ANDERSON III, judge. Opinion filed November 6, 2015. Affirmed in part, reversed in part, vacated in part, and remanded with directions.Paige A. Nichols, of Lawrence, argued the cause, and Joseph W. Luby, of Death Penalty Litigation Clinic, of Kansas City, Missouri, was with her on the briefs for appellant/cross-appellee.Steven J. Obermeier, senior deputy district attorney, and Jacob M. Gontesky, assistant district attorney, argued the cause, and Christopher L. McMullin, chief deputy district attorney, Stephen M.Page 18 Howe, district attorney, Natalie Chalmers, assistant solicitor general, Kristafer Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, were with them on the briefs for appellee/cross-appellant.The opinion of the court was delivered by STEGALL, J.: John E. Robinson, Sr., was charged with multiple offenses related to the murders of six women楊illings that constituted parts of a common scheme or course of conduct whereby Robinson would lure women to Johnson County with offers of employment, travel, and other benefits; exploit them sexually, financially, or otherwise; kill them and dispose of their bodies in a similar manner; and engage in various acts of fraud, deceit, and manipulation to conceal his crimes. This common scheme or course of conduct began in the mid-1980s and continued until Robinson's arrest in June 2000. The State charged Robinson with two counts of capital murder, one count for the intentional, premeditated murder of Suzette Marie Trouten (Count II) and the other for the intentional, premeditated murder of Izabela Lewicka (Count III). The State alleged, pursuant to K.S.A. 21-3439(a)(6), that the murders of Trouten and Lewicka were each part of a common scheme or course of conduct that also included the intentional, premeditated murders of Beverly J. Bonner, Sheila Faith, Debbie Faith, and Lisa Stasi. The State also charged Robinson with aggravated kidnapping of Trouten (Count I), theft of Vicki Neufeld's property (Count IV), first-degree premeditated murder of Lisa Stasi (Count V), and aggravated interference with Stasi's parental custody (Count VI). The jury convicted Robinson on all counts. Following the guilt phase trial, a separate sentencing proceeding was held pursuant to K.S.A. 21-4624(b). The penalty phase jury sentenced Robinson to death on each capital murder conviction and that sentence was imposed by the trial court. Additionally,Page 19 the trial court sentenced Robinson to 246 months in prison for the aggravated kidnapping of Trouten, 7 months for the theft of Neufeld's property, a life sentence with parole eligibility after 15 years for the first-degree premeditated murder of Stasi, and a pre-sentencing guidelines sentence of 5 to 20 years or a postsentencing guidelines sentence of 13 months for the aggravated interference with Stasi's parental custody. On appeal, Robinson has raised 19 general claims of reversible error covering the entire proceeding below. Within these general claims, Robinson asserts a variety of sub-claims. For simplicity, we number the general issues consecutively and address all claims arising under each category. At the outset, we take the unusual step of noting that our review of this matter揚iven its size and complexity揺as been assisted and facilitated by the diligence and professionalism of the trial judge, Judge Anderson, throughout the proceedings below. Moreover, the decision we announce today is in large part a product of Judge Anderson's conscientious commitment to Robinson's fair trial rights.FACTUAL AND PROCEDURAL BACKGROUND - GUILT PHASE Resolution of Robinson's claims on this appeal demands a comprehensive review of the disturbing facts underlying his convictions and sentences.John Robinson, Sr. Robinson was a self-employed, but not entirely successful, entrepreneur. In the 1970s, he formed Hydro-Gro, Inc., a company that produced hydroponic vegetables. In the 1980s, Robinson offered financial consulting services through his company Equi II. His operations were interrupted when he was convicted of a nonperson felony and incarcerated at the Western Missouri Correctional Center in Cameron, Missouri. Following his release in the 1990s until his arrest, Robinson published a mobile homePage 20 trade magazine called Manufactured Modular Home Living through his company Specialty Publications. Robinson lived with his wife Nancy in a three-bedroom modular home in Olathe, inside Santa Barbara Estates預 large mobile home community. Robinson used computers and e-mail extensively and also utilized a cell phone and pager. Nancy began working as the on-site office manager at Santa Barbara Estates in 1997. In the mid-1990s, Robinson acquired roughly 17 acres of property at a secluded Linn County location. He moved a trailer onto the property in July 1998 and installed two phone lines: one for his landline and one for his computer. Though married to Nancy since 1964, Robinson's infidelity was an ongoing issue in their marriage. In 1998, Nancy learned her husband was involved in bondage and discipline, dominance and submission, sadism, and masochism (BDS&M) activities after discovering fetish websites saved in his Internet browser history. Robinson shared stories of his BDS&M liaisons with Carlos Ibarra, a maintenance employee at Santa Barbara Estates, and showed him nude photographs of a girlfriend depicted in BDS&M poses.Robinson's Victims The State's capital murder theory in Counts II and III was that Robinson killed Suzette Trouten and Izabela Lewicka, along with Sheila and Debbie Faith, Beverly Bonner and Lisa Stasi, and that these killings were all connected, constituting parts of a common scheme or course of conduct characterized by: (1) luring women with offers of employment, travel, and other benefits; (2) exploiting them financially, sexually, or otherwise; (3) killing them and disposing of their bodies in a similar manner; and (4) concealing the crimes through acts of deception and fraud. The State alleged RobinsonPage 21 committed other crimes along the way, including the aggravated kidnapping of Trouten, theft of Neufeld's property, first-degree murder of Stasi, and aggravated interference with Stasi's parental custody. 1. Suzette Marie Trouten Suzette Marie Trouten was the youngest of Carolyn and Harry Trouten's five children. She lived near her mother in the Monroe, Michigan, area. The two were extremely close and talked daily, even when Trouten was away. Unbeknownst to her mother, Trouten was active in the BDS&M community. She frequented BDS&M websites and chat rooms, created her own BDS&M web page, and traveled out of state for BDS&M trysts. In the mid-1990s, Trouten met Lore Remington, a Canadian resident who shared Trouten's interest in BDS&M role playing games. Remington trained Trouten as a "slave," the submissive partner in a BDS&M relationship, for these online games, and the two became close friends. Remington introduced Trouten to her friend, Tami Taylor, who also lived in Canada, shared an interest in BDS&M, and became another friend. Trouten placed personal ads on BDS&M websites seeking a position as a "slave." At that point, Trouten and Robinson began communicating by e-mail. In summer 1999, Trouten told her mother that Robinson had offered her a job caring for his elderly father, "Papa John." Trouten said Robinson and his father were selling off several companies and Papa John needed nursing care as they traveled to various locations to close the deals. Trouten said the job would pay $60,000 annually and require extensive travel to places such as Switzerland and Belgium.Page 22 In October 1999, Trouten traveled to Kansas City, telling her mother she had an interview with Robinson. When she returned a few days later, Trouten told her mother she did not like the idea of being away from home but had decided to take the job for 1 year to earn enough money to return to school. Trouten took a second trip to Kansas in November, explaining she had to sign an employment contract and find a place to live. Trouten shared the news of her employment opportunity with other friends and family. She told Taylor she would be working for a man named John, who needed someone to care for his elderly father, a wealthy businessman, while they traveled to Europe and other destinations throughout the United States. Trouten told Remington she would earn $6,500 per month and travel to places such as Australia and Hawaii working for Robinson. Trouten gave similar reports to her aunt, father, and employer in Michigan. In late 1999 and early 2000, Trouten prepared for the move to Kansas and her upcoming travels. She researched colleges and other learning opportunities in Switzerland and Belgium, telling her mother that Robinson said they would be overseas long enough for her to take classes. Trouten completed a passport application. Just before Trouten left, her aunt, Marshalla Chidester, helped Trouten create a list of her friends' and family's contact information. On or about February 12, 2000, Trouten left for Kansas, bringing along her two beloved Pekingese dogs, Peka and Harry, in the moving truck Robinson had rented for her. On February 14, Trouten arrived and checked into Room 216 at the Guesthouse Suites in Lenexa. Robinson had reserved this room for 7 nights under his company's name, Specialty Publications. The reservation was later extended for an additional week. When Trouten checked into her room, hotel staff informed her of their no-pet policy. On February 16, Robinson brought two Pekingese dogs, one named Harry and thePage 23 other named Peka, for boarding at Ridgeview Animal Hospital in Olathe. Robinson said the dogs belonged to his employee. In completing check-in paperwork, Robinson indicated the dogs would be boarded through the end of February. Once in Kansas, Trouten called her mother almost every day. Trouten told her mother she had decided to put her belongings in storage, rather than find an apartment immediately, because she and Robinson would be leaving on their trip soon. Trouten also said their itinerary had changed. Rather than travel to Switzerland as originally planned, they had decided to go to California, pick up Robinson's new yacht, and sail to Hawaii first, so Robinson could relax before resuming his meetings. Trouten and Remington continued to communicate daily on ICQ, an instant messaging program on Yahoo. In these conversations, Trouten disclosed that she was in a sexual relationship with Robinson. At trial, Robinson conceded that he and Trouten had carried on a sexual, BDS&M relationship. The fact of this relationship was corroborated by other evidence at trial, including several e-mails in which they discussed BDS&M; a "slave" contract signed by Trouten, purportedly governing the terms of their master/slave relationship; and a videotape of the two engaging in BDS&M sex. The timeline of events on March 1 implicated Robinson in Trouten's disappearance. Around 1 a.m. on March 1, Trouten called her mother at work and said she and Robinson were leaving on their trip later that morning. Carolyn Trouten never saw or spoke to her daughter again. Trouten and Remington were also communicating via ICQ chat early that morning. Remington ended her chat session with Trouten at 12:51 a.m. Remington never saw or spoke to Trouten again.Page 24 At 11:43 a.m., a long-distance call was placed from Robinson's Linn County trailer to Nancy Robinson's work phone. At 2:13 p.m., Robinson picked up Trouten's dogs at the animal clinic in Olathe. Employees said Robinson appeared to be agitated and in a hurry. He told one employee he was in a rush to get to the airport. Robinson placed the dogs in a small kennel and left. Trouten was not seen with Robinson or in his truck at the animal clinic. At 2:24 p.m., Robinson's access code was used to gain entry through the security gates at his Olathe storage unit, and the code was used to exit the facility 6 minutes later. At 2:35 p.m., Olathe animal control officer Rodney E. McClain was dispatched to Santa Barbara Estates after Robinson had instructed the office assistant to report two dogs on the loose. McClain arrived 10 minutes later and saw two Pekingese dogs inside a small-medium-sized carrying kennel located just outside the office. Both appeared to be in good condition. McClain transported them to the local shelter. Trouten never claimed her dogs. Around 3 p.m., Isabel Clark, a housekeeper at the Guesthouse Suites, observed a man matching Robinson's general physical description loading Trouten's belongings from Room 216 into a truck matching the description of Robinson's vehicle in the hotel parking lot. When she cleaned the room, Clark noticed the linens and towels were stained with blood. However, she had observed similar blood stains when she cleaned the room throughout Trouten's stay. Trouten had an irregular menstrual cycle and would bleed heavily. Trouten told Remington that she was experiencing a particularly long and heavy period at the end of February.Page 25 Around 3:30 p.m., a hotel security camera captured Robinson checking out of Trouten's room. Hotel staff confirmed Robinson was the person who checked out of the room and paid the bill. Trouten was not with Robinson at the time, and hotel employees did not see her at all on March 1. A few days after Trouten had supposedly left for California, Carolyn Trouten received a letter from her daughter. Its arrival was somewhat unusual, as Trouten typically called her mother and did not write letters. The letter arrived in a pink envelope postmarked from Kansas City on March 6, 2000. The envelope was addressed to Carolyn Trouten, and the return address said only "Suzette Trouten." The handwritten letter was dated February 28, 2000, and discussed Trouten's plans to leave for California with Robinson. Carolyn Trouten believed the handwriting on the envelope and letter was her daughter's. However, she found it unusual the envelope was postmarked Kansas City on March 6 because Trouten said they were leaving on March 1. Suzette's father, who lived in Florida, received a similar handwritten letter dated February 28, 2000, in an envelope postmarked Kansas City on March 6, 2000. Suspicious of the postmark date, Carolyn Trouten called Robinson, who said Trouten had decided not to take the job. Robinson claimed she had met a man named Jim Turner and left town with him. Jim Turner was one of Robinson's aliases. A few weeks after receiving the first handwritten letter, Carolyn Trouten received a second letter purportedly written by her daughter in an envelope postmarked from San Jose, California. This time, the letter was typewritten with Trouten's name signed in cursive at the bottom. Trouten's mother believed the signature was Trouten's. The letter opened with the statement: "Well, I'm off on an adventure of a lifetime." Carolyn Trouten was convinced Trouten did not draft the letter because the language, style, wording, and typewritten format were wholly inconsistent with her daughter's writing.Page 26 Just before her April 9 birthday, Trouten's grandmother received a birthday card purportedly written by Trouten. The card was in a green envelope postmarked San Jose, California, on March 27, 2000. Trouten's aunt, Chidester, believed the mailing address on the envelope was written in Trouten's handwriting but that the "S. Trouten" written in the return address section of the envelope was not. Trouten's father also received a similar typewritten letter in an envelope postmarked San Jose, California, March 27, 2000. Unbeknownst to Trouten's family, Robinson had made arrangements in late March 2000 for Jean Glines to mail several letters for him from California. Glines was a former employee of Nancy Robinson, who maintained a long-distance relationship with Robinson by telephone and e-mail after she moved to California in 1997. Robinson asked Glines to mail some letters for him from California as a favor. Glines, who had grown tired of the relationship with Robinson, agreed to mail the letters if Robinson stopped calling her. Glines received a package containing three pastel-colored envelopes from Robinson on March 27. Glines noticed some of the letters were addressed to a person in "Minnesota or Michigan," and there was no return address, only the name "Sue," "Suzette," or the initials "ST." Glines mailed the letters that day from Milpitas, where all mail is sent to and postmarked San Jose, California. Several weeks later, Trouten's family received a number of letters purportedly authored by Trouten in envelopes postmarked Veracruz, Mexico, on May 19, 2000. Trouten's aunt, Chidester, received one of these letters. She believed the address on the envelope was written by Trouten, but the return address was not. The letter was typewritten and dated May 5, 2000. It discussed Trouten's travels and was signed, "Love you, Suzette." Chidester believed Trouten signed the letter, but she was convinced Trouten did not draft it because the punctuation, style, and organization were notPage 27 characteristic of Trouten's writing. Trouten's niece, her grandmother, and her father received similar letters postmarked May 19 from Veracruz, Mexico. Once again, unbeknownst to Trouten's family, Robinson had made arrangements for several letters to be mailed from Mexico in May 2000. Lidia Ponce lived in Veracruz, Mexico. Her son, Carlos Ibarra, was a maintenance employee at Santa Barbara Estates and did side jobs for Robinson. Ponce traveled to Olathe to visit her son at the beginning of May. Robinson asked Ibarra to have his mother mail several letters from a resort when she returned to Mexico. Robinson gave Ibarra several pastel-colored envelopes, which Ibarra gave to his mother. Ponce returned to Mexico around May 10 and mailed the letters from a hotel in Veracruz several days later after writing the sender's initials on the envelopes as Robinson had instructed. At trial, Ponce examined the envelopes Trouten's family had received and said they were consistent with the ones she had mailed from Veracruz and that the writing on the return address appeared to be her own. When law enforcement officers searched Robinson's storage unit in Olathe, they found the contact list that Chidester helped Trouten create before moving to Kansas. This list included the mailing addresses and, for some, birthday information for Trouten's family members. The officers also seized a clear plastic folder containing 42 envelopes preaddressed to members of Trouten's family, along with 31 pieces of pastel-colored stationary with "Love you, Suzette" signed at the bottom. The officers also found over a dozen pastel-colored envelopes with enclosed greeting cards and envelopes inside a plastic Target sack. These envelopes were preaddressed to members of Trouten's family, with "S. Trouten" written in the return address and the individual's birthday written in the upper-right corner where postage is typically placed. There were also several letters with generic greetings such as "Hi, dad" or "Hi, mom" handwritten at the top of stationary, along with a number of blank envelopes, stationary, and greeting cards.Page 28 This was not the first time Robinson had prepared or coordinated deceptive letter writing campaigns. In fall 1997, Robinson met Aleisia Cox through a personal ad she placed in a local magazine. Sometime in 1998, Robinson offered Cox a job traveling with him on business trips to London, Paris, and Australia. Before their scheduled departure, he directed Cox to write letters to her mother and daughter as though she had already arrived at each of these destinations, explaining there would not be time to write family during the trips. Cox complied, crafting letters to her mother and daughter that were written as though she were in Paris, London, and Australia. The trips never materialized, and police found Cox's letters during the search of Robinson's Olathe residence 2 years later. Robinson's concealment of Trouten's disappearance was not limited to written correspondence. On February 25, 2000, Robinson sent Trouten an e-mail message requesting login and password information for all of her e-mail accounts. Trouten provided the information in a reply e-mail. Robinson also had e-mail addresses for a number of Trouten's friends and family members. On the morning of March 2, 2000, the day after Trouten's disappearance, Remington received an e-mail from Trouten's Hotmail account. The body of the message said Trouten and her dogs had left on "the adventure of a lifetime." Remington responded a few minutes later, sharing that she had ended the relationship with her former BDS&M "master." Remington received a reply from Trouten's Hotmail account, referring Remington to a new "master" at "eruditemaster@email.com." Remington contacted this new "master" and began communicating with a man she came to know as Jim Turner. On March 24, 2000, an e-mail from Trouten's Hotmail account was sent to several members of Trouten's family, including her aunt, Chidester; her sister, Kim Padilla; her brother, Michael Trouten; and her father's girlfriend. The message said Trouten hadPage 29 written to her mother, that she had left on her trip, that she would not have online access for some time, and that she would try to stay in touch when possible. Chidester was convinced Trouten did not write the e-mail because the word choices, style, and format were inconsistent with Trouten's writing. Chidester was also convinced Trouten would have called her, rather than sending an e-mail, before leaving on such a trip. When law enforcement officers searched Robinson's Olathe storage unit several weeks later, they found the e-mail addresses for all four recipients attached to the contact list Trouten had prepared with Chidester before moving to Kansas. On April 27, 2000, Robinson, posing as Jim Turner, discussed Trouten's disappearance in an e-mail to Remington, claiming that Trouten had stolen his credit cards and that he had hired a private investigator to look into it. He also asked Remington for information on all of Trouten's previous BDS&M partners. After consulting with law enforcement, Remington provided the requested information via e-mail. Law enforcement officers found a printed copy of this e-mail chain in Robinson's possession during the search of his Olathe storage locker several weeks later. Robinson used e-mail not only to conceal Trouten's disappearance, but also to lure Trouten's friends into new BDS&M relationships. In March 2000, Remington told Taylor she had been communicating with Jim Turner, who she initially believed to be a friend of Trouten's employer, Robinson. Taylor jokingly told Remington to ask Jim Turner whether he had any single friends interested in a BDS&M relationship. Remington did just that, and Robinson, posing as Turner, said Taylor should contact "Tom" at "preipo@usa.net." Remington forwarded the name and e-mail address to Taylor, and Taylor sent "Tom" an e-mail discussing her interest in BDS&M. When law enforcement officers searched Robinson's Olathe residence, they found a note with the "preipo@usa.net" e-Page 30 mail address written on it. On March 17, 2000, Robinson, posing as Tom, responded to Taylor's e-mail, describing himself as a "very aggressive and hard working businessman" and outlining his ground rules for a BDS&M relationship. Taylor and Robinson, posing as "Tom," continued to communicate and discuss BDS&M topics via e-mail. Robinson also began calling Taylor. In one voicemail message, he told her he was changing his "preipo@usa.net" e-mail address to "bdsm@hotmail.com." "Tom" told Taylor that she would be well taken care of if she were his slave. On May 28, 2000, Robinson, posing as "Tom," sent Taylor an e-mail from his new "bdsm" Hotmail account, asking her to visit him in Kansas City. Unlike his earlier e-mails, "Tom" signed this e-mail as "MASTER"葉he same way this name/title appeared in Robinson's other e-mail communications, including Robinson's February 25 e-mail to Trouten and Jim Turner's April 27 e-mail to Remington. Before committing to a visit, Taylor asked "Tom" for a reference from a past slave, and Robinson, still posing as "Tom," told Taylor she could contact one of his former slaves at "slavedancer@hotmail.com." Taylor e-mailed "slavedancer" seeking information about "Tom" as a master. On May 31, Taylor received a response from the "slavedancer" account, in which "Tom" was referred to as "MASTER" throughout. When law enforcement officers searched Robinson's Olathe residence 2 days later, they found a list of e-mail addresses and passwords, including "slavedancer@hotmail.com," written on a sheet of legal paper. They also found e-mails confirming Robinson's registration of the "slavedancer" name on several e-mail servers. Taylor received no further e-mail after Robinson's arrest on June 2.Page 31 2. Izabela Lewicka Izabela Lewicka was born in Poland on April 11, 1978. She moved to West Lafayette, Indiana, with her family at the age of 11. She began studies at Purdue University in fall 1996. She was interested in the arts and was an avid drawer and painter. According to friends, Lewicka also had a strong interest in several alternative lifestyles, including paganism, goth, and BDS&M. In spring 1997, Lewicka told her friend, Jennifer Hayes, that an international book agent in Kansas City had offered her a job doing secretarial work and had commissioned her to illustrate BDS&M manuscripts. Lewicka said she planned to move to the Kansas City area to be with this older, married man, who had also agreed to train her to become a "dominant" in BDS&M relationships. Lewicka told Hayes he wanted her to call him "master" and to maintain strict confidentiality. Lewicka seemed concerned when she inadvertently told Hayes her master was named John. While attending Purdue, Lewicka became friends with Dawn Carter and often used her computer to access the Internet. Lewicka told Carter she had a job opportunity in Kansas City illustrating and editing books. Lewicka said that a man named John, whom she had met online, had a job and apartment for her and that they had plans to travel. Lewicka told her parents she had a summer internship with a publishing company in Kansas City, and if it led to a job, she might stay longer, but she did not rule out the possibility of returning to Purdue for the fall 1997 semester. Lewicka said she would be living at 9280 Metcalf in Overland Park and could be reached by e-mail. On June 8, 1997, Lewicka left for Kansas in her car filled with belongings. Lewicka's friends believed she moved to Kansas both for BDS&M training and work.Page 32 Once in Kansas, Robinson helped Lewicka establish herself. They leased a private mailbox at Mailboxes, Etc., located at 9280 Metcalf in Overland Park葉he same address Lewicka had given her parents. Both Lewicka and Robinson were authorized to access mail at the box. In October 1997, Robinson had his insurance agent write a 2-year auto policy on Lewicka's vehicle, explaining she was an employee. On November 14, Lewicka opened an account at Bank of America, where Robinson also held a business account for Specialty Publications. In February 1998, Robinson contacted Jennifer Boniedot, a property manager for the Deerfield Apartment Complex in Olathe. Robinson said he needed a corporate apartment for employees he would train before they were transferred to positions out of state. In the rental application, Robinson identified himself and Lewicka as the prospective occupants. He told Boniedot that he met Lewicka at a graphics trade show, that she had been abused by her parents, and that he had adopted her. Robinson signed a 1-year rental agreement, from March 1, 1998, to February 28, 1999. Robinson paid rent with a Specialty Publications' check, and Lewicka occupied the apartment through the term of the lease. In January 1999, just before the Deerfield Apartment lease expired, Robinson contacted Julie Brown, a manager for A.J. Lang Property Management, to find an apartment. Robinson said he was in the publication business and needed a corporate apartment for female employees he trained from across the country. Robinson executed a lease for a different apartment in Olathe (Edgebrook Apartment) for a term beginning January 15, 1999, through January 31, 2000. Lewicka occupied the Edgebrook Apartment, and Robinson paid the rent.Page 33 While in Kansas, Lewicka worked for Specialty Publications, handling advertising graphics for Robinson's magazine. In 1998, Robinson told his publishing broker, Karen Scott, he had hired his adopted daughter, Lewicka, as a graphic designer. Lewicka told Pam Sadewhite, who owned a graphic arts company that did work for Robinson, that Robinson was her uncle, but Sadewhite saw them flirting and touching one another in a manner that suggested otherwise. Lewicka often held herself out as Robinson's wife. Lewicka registered for an introductory drafting class at Johnson County Community College under the name Izabela Lewicka-Robinson and told her instructor that she was married to an older man. She also identified herself as Izabela Robinson to employees of several local businesses. Though not married, Lewicka and Robinson did share a BDS&M sexual relationship, as evidenced by a BDS&M "slave" contract signed by Lewicka, along with numerous nude photographs depicting her in BDS&M poses, seized from Robinson's Olathe storage unit. Nancy Robinson learned of her husband's relationship with Lewicka in 1997. She believed the relationship was different from Robinson's other affairs. In the past, when Nancy had learned of an affair, Robinson had ended it immediately. This time, the relationship continued, and Nancy thought Robinson would leave her for Lewicka. However, Lewicka disappeared sometime in late summer or fall 1999. Earlier that summer, Robinson convinced another paramour, Barbara Sandre, to move from Canada to Kansas. On August 18, they executed a lease for an unfurnished duplex at Hunter's Pointe, located on Grant Street in Overland Park (Grant Street Duplex). Sandre needed furnishings for the duplex, and Robinson agreed to provide them. On August 23, Robinson hired a moving company to deliver household items from Lewicka's Edgebrook Apartment to Sandre's Grant Street Duplex. Over the next 2 weeks, Robinson broughtPage 34 additional furnishings, including bedding and pillows, blankets, kitchen utensils, artwork, and hundreds of books. Many of these items were later identified as Lewicka's property. Robinson had also rekindled his relationship with Aleisha Cox earlier in 1999. Later that year, Cox was unemployed and did not have permanent housing, so Robinson invited her to stay at Lewicka's Edgebrook Apartment. Cox testified the apartment was mostly vacant, but there were some boxes containing clothing and household items. Robinson told Cox the girl that had been living there quit her job and ran off with her boyfriend, leaving the clothes behind. Cox took some of the clothing, which was later identified as Lewicka's. Cox declined Robinson's offer to stay at the apartment. In September 1999, with several months remaining on the lease, Robinson delivered September's rent for Lewicka's Edgebrook Apartment and notified the property manager, Brown, that he had vacated the premises. Brown later inspected the unit and found it to be mostly unkempt but noticed the two bedrooms had been cleaned meticulously. Law enforcement officers searched Lewicka's Edgebrook Apartment on October 12, 2000. Detective Sally Lane, a forensic chemist with the Johnson County Crime Lab (JOCO Lab), found hundreds of small, reddish-brown spots on the wall of one bedroom that presumptively tested positive for blood. The blood spots were roughly circular and less than 1 millimeter in diameter. The pattern of stains ran from floor to ceiling and approximately 4 to 5 feet in width, from the middle of the south wall all the way to the east wall, with the highest concentration at waist to chest level. Lane took swabs from a representative sampling of the spots and submitted them to the Kansas City, Missouri, Regional Crime Lab (KCMO Lab) for further analysis, where Detective Frank Booth, a DNA analysist, confirmed the genetic profile from the samples matched Lewicka's DNA.Page 35 Other circumstantial evidence corroborated Lewicka's disappearance in late summer or early fall 1999 and Robinson's involvement. In September, Robinson called his publishing broker, Scott, looking for a new graphic designer. Robinson told Scott that Lewicka had been caught smoking marijuana and deported to Czechoslovakia. On September 1, a $500 check payable to Specialty Publications was drawn on Lewicka's account, leaving an available balance of $1. On September 3, the insurance policy Robinson placed on Lewicka's vehicle lapsed because of nonpayment of premium. After fall 1999, Lewicka was never seen at the local establishments she patronized. During her time in Kansas, she shopped at A. Friendly's bookstore on 25 to 30 occasions. Lewicka stood out to the owner, Robert Meyers, because of her European accent and interest in books about witch trials, horror, vampires, and medicinal plants. Sometime before winter 1999, Lewicka came to A. Friendly's with a man Meyers believed to be Robinson. Lewicka told Meyers she was moving and Robinson would be buying her books after her move. Lewicka shopped there one more time prior to winter 1999, and Meyers never saw her again. As with other victims, family members received suspicious correspondence after Lewicka disappeared. Lewicka's father exchanged 25 to 30 e-mails with his daughter after she moved to Kansas. Lewicka was spirited and fought with her parents for autonomy and control over her life. When Lewicka responded to the e-mails, her tone was consistently abrasive and short, asking her father, "What the hell do you want [?]" and telling him to leave her alone. However, on April 14, 2000, Lewicka's father received a different sort of e-mail from his daughter's account. The message said she and another person had spent the last 2 weeks traveling the countryside in China. Unlike previous e-mails, the tone of this message was respectful and polite. The final series of e-mails Lewicka's father received from his daughter's account said she was traveling to overseas locations.Page 36 3. Lisa Stasi Lisa Stasi, formerly Lisa Elledge, was 18 years old when she began dating Carl Stasi sometime after June 1983. Lisa married Carl in August 1984. She was pregnant at the time. On September 3, 1984, Lisa Stasi gave birth to her first child, Tiffany Lynn, at Truman Medical Center in Kansas City, Missouri. After Tiffany's birth, Stasi's marriage crumbled and Carl reenlisted in the Navy. He reported for duty at Great Lakes Naval Base, outside Chicago, Illinois, in early January 1985. Around the time Stasi began dating Carl, Robinson was looking for a private adoption opportunity for his younger brother, Donald Robinson, and Donald's wife, Helen, who lived in the Chicago area. At a family reunion in 1983, Donald and Helen told Robinson they were pursuing a private adoption. Robinson said he knew an adoption attorney, Doug Wood, and would handle the process for his younger brother. In fall 1984, Robinson told Donald and Helen a baby would be available in October. At Robinson's direction, Donald sent him a $2,500 cashier's check payable to Robinson's business, Equi II, allegedly to cover adoption-related fees. Robinson later said the birth mother had decided not to place the child for adoption. In November 1984, Robinson contacted Karen Gaddis, a social worker at Truman Medical Center, and told her that he and several Johnson County businessmen had developed a program to provide housing, transportation, daycare, and job training for young mothers and their babies. Robinson said he needed referrals of Caucasian women because the program already had African-American participants and needed racial balance. Robinson was looking for a white woman in her teens or early 20s, who had a newborn child, was struggling or disadvantaged, and had no family support or ties. In January 1985, Robinson told Gaddis another organization, Hope House, had referred aPage 37 young lady to his program, and he had placed her at a motel in Kansas. Lisa Stasi's aunt, Karen Moore, testified that she had contacted Hope House and took Stasi to the organization just before January 1, 1985. Family members last saw Stasi and Tiffany in early January 1985. Carl Stasi's sister, Kathy Klingensmith, babysat Tiffany often. On January 8, Stasi dropped Tiffany off at Klingensmith's home and told her she had met a man named John Osborne, who was going to help her get a job and finish her GED. Stasi said she might even get to travel as part of the job training program. Stasi returned to Klingensmith's home to pick up Tiffany on January 9. When she arrived, Stasi said John Osborne had paid for her to stay in a room at the Roadway Inn in Overland Park. At approximately 2 p.m., Stasi called the front desk at the Roadway Inn and gave the hotel receptionist Klingensmith's phone number in case Osborne called. Osborne called Klingensmith's number soon thereafter and got directions to her home. The weather was treacherous because of a strong snowstorm, but Osborne arrived at Klingensmith's home at approximately 3 p.m. Stasi and Tiffany went with Osborne, leaving Stasi's car parked outside Klingensmith's home. Less than 1 hour later, Stasi called Klingensmith to tell her she had arrived safely at the motel. Klingensmith never saw or heard from Stasi or Tiffany again. Stasi never returned for her car. Klingensmith identified Robinson at trial as the man she knew as John Osborne. Around 4:30 p.m., Stasi called her mother-in-law, Betty Stasi, in a panic, crying and hysterical. Stasi said "they" were claiming that Betty Stasi planned to take Tiffany away because Stasi was an unfit mother. Stasi's mother-in-law told her not to believe what "they" were saying because it was not true. Stasi said "they" wanted her to sign four blank sheets of paper. Betty Stasi told her not to sign anything. Stasi said "here they come," and she hung up.Page 38 Betty Stasi never spoke to or saw Stasi or Tiffany again. A few days later, Betty Stasi received a letter purportedly written by Stasi. It was typewritten and signed "Lisa" at the bottom and said Stasi had left town to start a new life with Tiffany. Nancy Robinson testified that in early January 1985, the day of the terrible snowstorm, Robinson brought a baby to their home in Stanley. Robinson said that the baby's name was Tiffany and that he received her through a private adoption for his brother. Robinson called Donald and Helen and told them a baby was available immediately. He said the birth mother had decided against adoption after delivery, but the family did not support her decision, so she left the baby at a shelter and committed suicide. Donald and Helen flew to Kansas City on January 10. Robinson picked them up at the airport in the late afternoon and drove them to the offices of Equi II in Overland Park, where they signed legal paperwork, including a Petition for Adoption. After signing the documents, Donald gave Robinson a $3,000 cashier's check payable to Doug Wood, allegedly for further adoption expenses. Donald and Helen named the baby Heather Tiffany Robinson. They returned to Chicago, along with the baby, the following day. That same morning, Klingensmith called the Roadway Inn and learned Stasi's room had been reserved under a name other than John Osborne. On January 11, Klingensmith filed a missing persons report with the Overland Park Police Department. Robinson's name surfaced early in the investigation. On February 1, 1985, Overland Park detectives interviewed Robinson, who told them he was starting a charitable organization to provide young mothers job training, food, and housing. Robinson admitted he had placed Stasi at the Roadway Inn as part of that program.Page 39 However, he said Stasi had recently come to his office to give him the motel key. Robinson said Stasi thanked him for the assistance and said she had made other arrangements. Robinson claimed that Stasi and Tiffany left with a young Caucasian male in an older model green car. One week later, Robinson provided a similar story to his Missouri Parole and Probation Officer, Steve Haymes. Robinson told Haymes he had placed Stasi at the Roadway Inn, but on January 10, she and Tiffany came to his business with a man named Bill and said they planned to start a new life together in Colorado. To corroborate this story, Robinson paid Cora Holmes $800 in exchange for her false statement to police. At Robinson's direction, Holmes told Overland Park detectives that she had recently babysat Tiffany and learned Stasi had left for Arkansas with a man named Bill Summers. In July 1985, Donald and Helen received a package from Robinson containing final adoption paperwork, including a Petition for Adoption, Decree of Adoption, birth certificate, and other documents. The Petition appeared to be signed by attorney Douglas Wood, who had handled over 100 adoptions in his career. Wood testified that he did not prepare the document, that it deviated from his standard form, and that his signature had been forged. Wood confirmed that he had never represented Robinson or any member of his family in any adoption proceeding nor received payment from Robinson for such legal work. The Decree appeared to contain the signature of attorney Ronald Wood, who had handled only three adoptions in his 23-year career. Ronald Wood testified that he never signed the Decree. He had represented Robinson in other matters, and Robinson had access to other examples of Wood's signature. The Decree also appeared to be signed byPage 40 Judge Michael H. Farley, but Judge Farley testified the decree was fraudulent and his signature had been forged. Both the Petition and Decree appeared to be notarized by Evi Gresham, who had been in a BDS&M relationship with Robinson in the early to mid-1980s, but Gresham had never seen the documents, her name was misspelled, and she was never a notary public. Robinson had directed Gresham to sign numerous blank papers during their relationship. Neither the Petition nor the Decree was found in the district court clerk's official records. After Robinson's arrest in 2000, Donald and Helen began to question the identity of Heather's birth mother. Law enforcement compared Heather's footprints to the known prints of Tiffany and found the prints matched, i.e., Heather Tiffany Robinson was Tiffany, Stasi's biological daughter. 4. Beverly Bonner Beverly Bonner lived in Cameron, Missouri, with her husband, Dr. William Bonner, and their two sons. In 1992 and 1993, Bonner worked as a prison librarian at the Western Missouri Correctional Center while Robinson was an inmate. William Bonner was a prison physician who treated Robinson and other inmates. In November 1993, Bonner filed for divorce. Toward the end of their marriage, Bonner told her husband she was helping Robinson find property for a hydroponics project. Bonner also said she planned to take a job with a company in Chicago. Bonner was not seen by her family after her final divorce proceeding in February 1994. Bonner's brother, Louell Heath, invited Bonner to his September 1995 wedding,Page 41 but she did not attend. Bonner's oldest son died in October 1995, but she did not attend his funeral. After Bonner's disappearance, Robinson stole her alimony payments. In December 1993, Robinson, posing as Jim or James Turner, applied for a mailbox under Bonner's name at The Mail Room in Olathe. The owner, Colleen Davis, identified Robinson at trial as the person she knew as Turner. Robinson executed a lease for Box 182 under Bonner's name on January 1, 1994. Robinson presented Bonner's identification and told Davis he was collecting Bonner's mail while she worked in Australia. Davis never met Bonner and only saw Robinson access the mailbox. William Bonner paid his ex-wife $1,000 in monthly alimony for 18 months. He timely mailed each alimony payment to Bonner's private mailbox in Olathe. Every alimony check was deposited into Robinson's Hydro-Gro, Inc., business account at Community Bank of Raymore, an account opened on February 1, 1994, with James A. Turner and Beverly J. Bonner as the authorized signatories. Three latent prints lifted from the original alimony checks matched Robinson's known prints. Robinson attempted to conceal Bonner's disappearance with fraudulent communications to her family. In January 1994, Bonner's brother, Larry Heath, received a handwritten letter purportedly from Bonner that said she was starting a new career with an international corporation in Chicago and that she would be traveling extensively, both domestically and abroad. A few months later, Larry Heath received a typewritten letter purportedly from Bonner, which was unusual because Bonner had always written letters by hand. The letter said Bonner was working for "Jim Redmond" in the human resources department of a large international corporation. Larry Heath continued to receive similar typewritten letters every 3 to 4 months. Occasionally, he would respond, mailing correspondence to Bonner's private mailbox. During the same time period, Louell HeathPage 42 received roughly half a dozen letters, which arrived in envelopes postmarked Australia, France, the Netherlands, and Kansas City, Missouri. The letters were typewritten, often discussed Bonner's travel overseas, and were signed in what Bonner's brothers believed to be her handwriting. In early 1997 the letters ceased. Bonner's family grew concerned and contacted authorities to report her disappearance. Detective Frank Booth examined nine of the envelopes mailed to Larry Heath. Eight of the envelopes had sufficient amylase to create a full DNA profile, and each profile matched Robinson's known DNA. 5. Sheila Faith and Debbie Faith Sheila Faith married John Faith, and the couple had a baby girl named Debbie Lynn on October 17, 1978. Debbie was born with a number of birth defects, including cerebral palsy, which limited her ability to walk and control her bladder, forcing her to wear adult diapers later in life. Sheila's husband passed away in 1993, and Sheila moved with Debbie from California to Pueblo, Colorado, to be closer to her friend, Nancy Guerrero. Sheila and Debbie lived on Social Security and struggled financially. According to Guerrero, Sheila was lonely and responded to personal ads in hopes of meeting a companion. On several occasions, Sheila talked to Guerrero about her interest in BDS&M but did not share details because Guerrero was uncomfortable with the subject. Sheila's sister also believed she was interested in BDS&M. In spring 1994, Sheila told Guerrero she had met a man named "John" from Missouri. Sheila said "John" was a wealthy executive who promised to take her on a cruise and put Debbie in private school. Sheila told her sister, Cathy Norman, that she had met a man with a good job, that they planned to travel together, and that he plannedPage 43 to buy Debbie a new wheelchair and accessible van. Norman said Shelia called him "Jim Turner" either in a letter or during their last telephone conversation. Sheila told Guerrero that she and Debbie were going to visit John. They planned to be gone for about a month, spending a couple weeks with John in Missouri and then traveling to Texas to visit family. Guerrero expected Sheila to return within a few weeks because they had purchased tickets to the Colorado state fair, and Sheila planned to enter a cross-stitched angel into the fair competition. While Sheila packed, Guerrero noticed she did not take furniture, bedding, or other items one would need for an indefinite stay elsewhere. Neither Guerrero nor Sheila's sisters saw or spoke to Sheila or Debbie again after they left Colorado to visit Robinson. Additionally, in 1995, Robinson gave one of his paramours, Sandra Shields, a cross-stitched angel as a gift. Guerrero identified the item as the piece Sheila Faith had made to enter into the state fair competition. After Sheila and Debbie left, Sheila's sisters received letters purportedly written by Sheila. In December 1994, Norman received a typewritten letter purportedly from Sheila in an envelope postmarked Canada. The letter said Sheila had met a wonderful man named Jim. Norman was convinced the letter was a fraud because Sheila always wrote letters by hand and Sheila's signature appeared to be forged. Norman received another letter the following December. Again, she was convinced Sheila did not write it because of the typewritten format and the nature of the signature. Sheila's other sister, Michelle Fox, also received a letter in an envelope postmarked outside the country. Fox immediately suspected it was fraudulent because of the typed format, style, and unusual signatures.Page 44 For years following their disappearance, Robinson stole Sheila's and Debbie's social security benefit payments. In June 1994, just months after setting up a private mailbox under Bonner's name, Robinson, posing as James Turner, set up another private mailbox at the Mail Room葉his time under the names Sheila and Debbie Faith. The owner saw Robinson come to the mailbox at least once a month to collect two government checks mailed to Sheila and Debbie Faith. While the Faiths were living in Colorado, the Social Security Administration (SSA) had mailed Sheila's and Debbie's benefit checks to a Pueblo, Colorado, address. For the first half of 1994, these checks were often deposited into an account held at Colorado National Bank. In June 1994, SSA received notice that Sheila's and Debbie's mailing address had changed to the private mailbox in Olathe. SSA began mailing benefit checks to this new address the following month. From July 1994 to September 1995, the checks were deposited into Robinson's Hydro-Gro, Inc., business account at Community Bank of Raymore葉he same account Robinson used to deposit Bonner's alimony checks. In fall 1995, Community Bank of Raymore notified Robinson, a/k/a James Turner, that Social Security checks could not be deposited into a business account. Thereafter, Robinson deposited the checks into his Specialty Publications' accounts at other financial institutions. Robinson also employed fraud and deceit to ensure Debbie's disability benefits would continue. In August 1994, SSA received a completed disability review form for Debbie, purportedly signed by Sheila Faith. Attached to the disability form was a medical report confirming Debbie's ongoing physical impairment. The report appeared to be signed by Dr. William Bonner, but he testified that he had never treated Debbie Faith, had not prepared the report, and had never had an office at the address identified in the document.Page 45 On June 7, 2000, law enforcement searched box 215 at The Mail Room and seized envelopes containing the June 2000 SSA benefit checks for Sheila and Debbie Faith. Lyla Thompson, a deputy with the JOCO Lab, developed several latent fingerprints from the other SSA checks that matched Robinson's known prints. 6. Vickie Neufeld Vickie Neufeld lived in Texas. She lost her job as a geriatric therapist in March 2000, and her financial situation was dire. Neufeld placed personal ads on BDS&M websites and began e-mailing Robinson. Neufeld and Robinson discussed a potential BDS&M relationship, and he sent her a slave contract to review. On April 23, 2000, Robinson asked Neufeld to visit him in Kansas. Robinson said he was a wealthy businessman with a history of helping other professional women get established in the area. He promised to support her and said they possibly could pursue a relationship. Robinson arranged for Neufeld to stay at Extended Stay America in Overland Park. She arrived on April 23, 2000. As Robinson had requested, she brought her own sex toys along for the trip. Robinson and Neufeld engaged in sexual activity at various times during her stay. On the morning of April 26, Robinson told Neufeld he was leaving for a business trip in Israel and wanted to discuss a plan for her to move to Kansas. Robinson said his business would pay movers to bring her belongings to Kansas that weekend. Robinson asked Neufeld to leave her sex toys with him, explaining it would give her extra incentive to return. Neufeld left behind her rattan-type canes and a mesh bag full of sex toys, which she valued at $700.Page 46 Neufeld returned to Texas, but the movers never arrived. On May 22, 2000, Neufeld asked Robinson to return her sex toys, but he did not comply. Neufeld filed a police report, and law enforcement found Neufeld's sex toys several days later during the search of Robinson's Olathe storage locker.The Investigation On March 25, 2000, the Overland Park Police Department took a missing person's report regarding Trouten and transferred it to the Lenexa Police Department, which had jurisdiction. Lenexa police created a multijurisdictional task force that quickly focused its investigation on Robinson's activities. They employed numerous investigative techniques, including surveillance, trash hits, consent searches, pen registers, wiretaps, and search warrants, leading to Robinson's arrest on June 2, 2000. On March 29 and 30, 2000, Deputy Daniel Rundle, a forensic chemist with the JOCO Lab, searched Trouten's room at the Guesthouse Suites in Lenexa. Although Rundle found several small bloodstains in the room, he admitted the search produced nothing of evidentiary value. On March 31, 2000, the Lenexa Police Department began searching trash left at the curbside for collection at Robinson's Olathe residence. On April 4, officers found an invoice for a package Robinson sent to Glines in California葉he woman who mailed letters postmarked from San Jose, California, at Robinson's request. On April 25, investigators used a Deffenbaugh trash truck with the company's permission and collected three bags of Robinson's trash. They recovered a telephone bill for service at Robinson's Linn County property, which documented a long-distance call placed from Robinson's trailer on the morning of Trouten's disappearance.Page 47 On May 22, 2000, law enforcement secured a court-ordered wiretap on Robinson's cell phone. Law enforcement later intercepted a call from Robinson to Remington's phone, which was answered by her minor son. During that call, Robinson identified himself as "Jim." Later that afternoon, law enforcement intercepted another telephone call from Robinson, posing as Jim Turner, to Remington. During this call, he said Trouten had stolen his credit cards and withdrawn money from his accounts, and that his private investigator had learned Trouten was in Mexico. He also said Carolyn Trouten had called one of his friends, inquiring about her daughter's whereabouts. On the morning of June 2, 2000, law enforcement secured a warrant to search Robinson's Olathe residence and his Olathe storage unit. Robinson was arrested that morning just before officers executed the search warrants. During the search of Robinson's residence, law enforcement officers seized a number of incriminating items, including books on creating false identities; a Home Depot credit card bearing the name "James A. Turner"; IRS Form 1099 statements for Sheila and Debbie Faith; Roadway Inn receipts with "Lisa Stasi" written on them, reflecting payment for lodging in January 1985; an IRS form signed by "Beverly J. Bonner"; documents identifying "James Turner" and "John Robinson" as affiliated with Equity Financial Group and Hydro-Gro, Inc.; papers and handwritten notes with e-mail addresses associated with the victims and their families; and e-mail communications between Trouten and Robinson. During the search of Robinson's Olathe storage unit, law enforcement officers seized several items relevant to the disappearances of Trouten, Lewicka, and Sheila and Debbie Faith. First, several items were immediately identifiable as Trouten's, including her Social Security card, Michigan driver's license, birth certificate, high school diploma, Sam's Club membership card, American Red Cross certification card, passportPage 48 application, and prescription medication. Law enforcement officers also found numerous personal items that family members identified as Trouten's property, including her jewelry boxes, jewelry, collectible items, nursing textbooks, and a journal with the name "Suzette" inside. A number of items also evidenced Trouten's BDS&M relationship with Robinson, including a slave contract, a sex tape, nude photographs, and e-mails. Several items were also immediately identifiable as Lewicka's, including her Polish passport, Kansas driver's license, Social Security card, resident alien card, Olathe Public Library card, high school diploma, Indiana vehicle registration, and a document appointing Robinson as her power of attorney. Law enforcement officers also found several personal items that family members later identified as Lewicka's. Additionally, law enforcement officers seized 1998 IRS Form 1099 statements for Sheila and Debbie Faith, along with photocopies of their SSA benefit checks for September 1997. Finally, police found a slave contract Neufeld had signed, along with her sex toys. On the morning of June 3, 2000, law enforcement officers secured a warrant from Johnson County District Judge Larry McClain to search Robinson's Linn County property. The search began that morning and continued for roughly 1 full week. Around 1 p.m. on June 3, Johnson County Sheriff's Detective Herald Hughes learned a cadaver dog alerted on two yellow, metal barrels on the property. The barrels were located out in the open, just to the south of a wooden shed located several yards to the southwest of the trailer on the property. Hughes opened the barrels and confirmed each contained the remains of a human body.Page 49 The barrels were transported to the Shawnee County morgue, where Shawnee County Deputy Coroner Donald Pojman conducted autopsies on June 4. The body removed from the first barrel was that of Trouten. It was mildly decomposed, unclothed, and lying in a fetal position inside the barrel. There was a soft, nylon rope tied around the head with a piece of cloth underneath covering the nose and mouth, which Pojman believed to be a blindfold that had slipped below the eyes. There were two visible injuries: a tear to the skin near the left armpit inflicted postmortem and an oval-shaped defect on the left side of the head, which Pojman believed to be lethal. Pojman concluded the cause of death was a blow to the left side of the head with a hard object. Forensic odontologist Daniel Winter confirmed Trouten's identity with her known dental records. Pojman then conducted the autopsy of the body in the second barrel, later identified as Lewicka. The body was moderately decomposed, lying in a fetal position, partially covered with a pillow, and clothed with a short-sleeve nightshirt. Inside the barrel, Pojman saw three pieces of gray or silver duct tape. He observed two blunt-force injuries to the skull, either of which could have been lethal. He noted the injuries were similar to Trouten's. Winter confirmed Lewicka's identity with her known dental records. Back in Linn County, deputies from the JOCO Lab discovered a variety of incriminating trace evidence inside Robinson's trailer. First, Deputy Allen Hamm found a paper towel inside the kitchen sink with a reddish-brown stain that presumptively tested positive for blood. Detective Booth, KCMO Lab, determined the genetic profile from the blood on the paper towel matched Trouten's DNA profile. Booth testified that this genetic profile occurs in only 1 in 6 billion people. Booth also found eight hair strands on the paper towel. Booth compared them to known samples from Trouten and Robinson and opined that they were common to Trouten and not Robinson. Booth admitted that, unlike DNA testing, comparative hairPage 50 analysis cannot yield a positive identification. However, he explained the methodology is still useful in excluding individuals or including them among a group of people that share similar hair characteristics. Additionally, Booth obtained a root from one of the hair samples and successfully acquired a genetic profile that produced a match to Trouten. Hamm found reddish-brown stains on wallboard in the kitchen that presumptively tested positive for blood. Booth confirmed that the genetic profile from the wallboard stains matched Trouten's DNA. Booth also found two hairs in the samples, both of which were common to Trouten and not Robinson. Hamm also collected swabs of a stain on a long piece of trim board in the kitchen area of the trailer. Booth found two hairs and two fragments in these swabs that were common to Trouten and not Robinson. Johnson County Sheriff's Deputy Andrew Guzman found a roll of duct tape inside a green plastic trash container in the south bedroom. The tape appeared to be similar to the strands of duct tape found inside the barrel containing Lewicka's body. Investigators saw a reddish-brown stain on the roll of duct tape, and Booth's subsequent testing confirmed the genetic profile produced a match to Lewicka's DNA. Deputy Thompson lifted one latent print from the roll of duct tape that did not match Robinson's known prints. Thompson compared the print to several crime scene investigators' known prints but found no match. Due to the state of decomposition of Lewicka's body, Thompson was unable to compare the print to Lewicka's. Thompson saw what appeared to be another partial print with some ridge detail on the roll of duct tape, but it was too incomplete to be of value. In addition to trace evidence, law enforcement officers seized a number of Trouten's belongings from inside Robinson's trailer. In the living room area, Guzman found a box with an "EZ Set" label on it and a box with a "Big Boy" label on it that contained glassware, oil lamps, figurines, and other collectable items. Carolyn TroutenPage 51 confirmed that many of these items belonged to Suzette Trouten. Thompson developed a number of latent prints from items in the EZ Set box that matched Robinson's known prints. On June 5, 2000, law enforcement officers executed a warrant to search a Raymore, Missouri, storage unit, rented by Robinson. In December 1993, Robinson had rented unit F-10 at Stor-Mor For Less in Raymore. He leased the unit under Beverly Bonner's name, claiming that Bonner was his sister and that he was storing her belongings while she worked in Australia. The leasing agent recalled Robinson saying Bonner worked for an agricultural company with "Hydro" in its name. Robinson leased this unit through the summer of 1996. In January 1994, Robinson leased a second unit, E-2, under Bonner's name and maintained that lease through the date of his arrest. Law enforcement officers began searching unit E-2, and within 10 minutes, they smelled a foul odor that they associated with a decomposing body. In the back of the locker, officers saw three barrels. The first was black and sealed with a gray lid. They opened the top and discovered a body inside. The two other barrels were located in front of the black barrel. They were covered with a large plastic sheet, and cat litter had been sprinkled around the outside of the barrels inside the plastic. Some of the litter appeared to have absorbed a dark fluid. The barrels were wrapped together with two additional pieces of plastic sheeting held up with pieces of duct tape. Thompson examined the plastic sheeting and duct tape and developed four latent prints of value. Three of the latent prints matched Robinson's known prints, and one was not identified. The officers did not open the second and third barrels but suspected they too contained human remains.Page 52 All three barrels were transported to the Jackson County Medical Examiner Thomas Young. Young conducted an autopsy on the body inside the first barrel, later identified as Beverly J. Bonner. The body was curled up inside the barrel and fully dressed for cold weather. Young believed the body had been stored for a long period of time because most external features were blurred and the internal organs were hard to distinguish. The body had substantial trauma to the head caused by multiple blows from a blunt object with a rounded surface, consistent with a hammer. Young opined that any number of these blows could have resulted in death. On June 7, 2000, forensic odontologist Ronald Grier confirmed the victim was Bonner. Next, Young conducted an autopsy on the body contained one of the two barrels wrapped in plastic, later identified as Sheila Faith. The body was an adult female, fully clothed. Young believed the state of decomposition was consistent with the death having occurred 5 to 6 years prior but admitted no precise date of death could be determined. The body had multiple injuries to the head caused by blunt-force trauma consistent with infliction by a hammer. Young opined that any number of these blows could have been fatal. Young also observed a fracture of the right forearm, specifically the right ulna, which he testified to be consistent with a defensive wound. Grier confirmed the victim was Sheila Faith. Finally, Young conducted the autopsy on the body found inside the third barrel, later identified as Debbie Faith. The body was fully clothed, and the subject was wearing an adult disposable diaper. Young believed the victim was a teenager because x-rays revealed that several growth discs had not closed. Again, Young testified that the state of decomposition was consistent with the death having occurred 5 to 6 years prior but admitted no precise date could be determined. The victim had sustained at least three blows to the head, each of which could have been fatal, inflicted by a blunt object with aPage 53 rounded surface, consistent with a hammer. Using known dental x-rays, Young opined the victim was Debbie Faith. Lisa Stasi's body has never been found. On June 9, law enforcement officers searched the Grant Street Duplex with Sandre's consent. They seized a number of items belonging to Lewicka, including two sets of bedding, an antique Polish coffee grinder, a Hungarian espresso machine, and a black journal with handwriting and sketches. Investigators noticed one of the sets of bedding matched the pattern on the pillowcase found inside the barrel containing Lewicka's body. The bedding also matched the pattern depicted in nude photographs of Lewicka found in Robinson's Olathe storage unit. Hanging on the wall of the duplex was a framed oil painting with the signature "John '92" and the initials "JR" at the top. There were also two pencil drawings displayed in the spare bedroom signed "John 2000" and the initials "JR" underneath. Lewicka's friend Carter, who had cataloged Lewicka's artwork and was familiar with her paintings and drawings, recognized the framed painting as Lewicka's artwork. Lewicka's friend Hayes also identified the pencil drawings as Lewicka's work. Law enforcement officers seized several books purchased from A. Friendly's, where Lewicka was a frequent patron. The owner, Meyers, specifically recalled selling two of the books to Lewicka.The Trial On June 2, 2000, the State filed its Complaint against Robinson, charging him with two counts of aggravated sexual battery and one count of theft. The State amendedPage 54 its Complaint on June 13, adding one count of aggravated kidnapping and two counts of capital murder. The State filed its Second Amended Complaint on July 28, adding one charge of premeditated first-degree murder and one charge of aggravated interference with parental custody. On August 31, 2000, the State filed its Third Amended Complaint, supplementing allegations in the existing counts. At preliminary hearing, the State put on evidence supporting the eight counts in the Third Amended Complaint. District Judge John Anderson III found probable cause lacking and dismissed Count IV, aggravated sexual battery of J.M. Judge Anderson renumbered the remaining seven counts, which were tried to the jury. Jury selection began on September 16, 2002. Judge Anderson empanelled the jury on October 4, and trial commenced on October 7. At the close of the State's evidence, Judge Anderson granted defendant's motion for directed verdict on Count IV, aggravated sexual battery of Vicki Neufeld. On October 25, 2002, the defense rested. That same day, the State filed a Fourth Amended Complaint charging Robinson only with the counts from the Third Amended Complaint that survived Robinson's motion for directed verdict. The following six counts were submitted to the jury on October 28, 2002: Count I, aggravated kidnapping of Suzette Trouten; Count II, capital murder of Suzette Trouten; Count III, capital murder of Izabela Lewicka; Count IV, felony theft of Vicki Neufeld's property; Count V, premeditated first-degree murder of Lisa Stasi; and Count VI, aggravated interference with Lisa Stasi's parental custody. On October 29, 2002, the jury returned a unanimous verdict convicting Robinson on all counts.Page 55 PRETRIAL AND GUILT PHASE ISSUES1. VENUE Robinson argues pretrial publicity was so pervasive and prejudicial in Johnson County that it resulted in actual prejudice to his right to trial by a fair and impartial jury in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution. He also claims Judge Anderson abused his discretion by refusing to transfer venue to another county pursuant to K.S.A. 22-2616(1).Additional Factual and Procedural Background 1. First Motion for Venue Change Robinson first moved for a change of venue on January 17, 2002. At the January 30, 2002, evidentiary hearing, defendant presented testimony from venue experts, along with the results of a venue study prepared by Lisa Dahl of Litigation Consultants, Inc. The study was based on three telephone surveys: one of 400 Johnson County residents, one of 200 Harvey County residents, and one of 200 Ellis County residents. Dahl selected Johnson County, which had a population of 464,083 at the time, because it was the venue of origin. She selected Harvey County, which had a population of 35,737, as one of the control groups because its county seat, Newton, was a bedroom community to Wichita, much like Olathe was a bedroom community to Kansas City. She selected Ellis County, which had a population of 28,731, as another control group because it was geographically removed from the venue of origin and other metropolitan areas, yet its demographic makeup and crime rates were comparable to Johnson County. Dahl testified the number of respondents in each county was statistically sufficient to extrapolate resultsPage 56 to the general population within a 5 percent margin of error in Johnson County and 7 to 8 percent margin in the control counties. The surveys' results showed 94 percent of the respondents in Johnson County were aware of this case, compared to 80 percent in Harvey County and 64 percent in Ellis County. Further, 67 percent of those surveyed in Johnson County held an overall opinion that the defendant was "definitely guilty" or "probably guilty." In contrast, 50.5 percent of the Harvey County respondents and 35.5 percent of the Ellis County respondents held similar opinions. As to respondents' views of the strength of the evidence of defendant's guilt, 72.3 percent of the Johnson County respondents believed it to be "overwhelming" or "strong." Half of the respondents in Harvey County and only 35.5 percent of respondents in Ellis County believed likewise. Also, 68 percent of Johnson County respondents had knowledge of case facts beyond those presented in the survey, compared to only 23 percent in Harvey County and 27.3 percent in Ellis County. Dahl testified that the surveys' results were generally statistically significant. However, in the three counties surveyed, there was no statistically reliable difference in sentencing opinions among respondents who recalled the case. Dahl admitted she was not interested in exploring whether respondents could set aside preconceived opinions and serve as impartial jurors. In fact, none of the 38 questions in the surveys explored respondents' ability to assess the case impartially. Robinson also called Ronald Dillehay, a professor of psychology at the University of Nevada-Reno with expertise in the design and analysis of venue studies and jury selection procedures. Dillehay testified that the design of Dahl's venue surveys was scientifically valid and conformed to generally accepted practices in the field. Dillehay also testified that the absence of questions exploring respondents' ability to serve asPage 57 impartial jurors did not invalidate the venue study. In support, he cited studies in the fields of psychology and social science that suggest humans struggle to set aside preconceived opinions but will confirm their ability to do so when asked. Thus, Dillehay said such questions produce a lack of response variance sought in reliable questionnaires. Dillehay acknowledged the survey data showed a very high level of awareness and prejudgment of the case in Johnson County and then discussed possible options to counteract such prejudice, including: (1) change of venue; (2) importing jurors from outside Johnson County; (3) delay; (4) enhanced voir dire; (5) additional peremptory challenges; and (6) judicial instructions. Dillehay believed delay and judicial instructions would be ineffective due to the high levels of awareness and prejudgment. As to the option of enhanced voir dire, Dillehay explained that the court could overcome juror minimization, which he described as a tendency on the part of jurors during voir dire to downplay what they learned from the media coverage and the impact it had on their prejudgment and/or impartiality, by allowing attorneys to ask prospective jurors extensive, probing voir dire questions. Dillehay explained that enhanced voir dire would require participation of attorneys, lots of questions, and small groups consisting of no more than four to six people, facilitating an environment where prospective jurors would be forthcoming. While effective, Dillehay believed enhanced voir dire would be too onerous from a logistical or administrative perspective, describing it as "very laborious and very time-consuming." On the second day of the evidentiary hearing, continued to March 6, 2002, the defense played 2 hours of televised news coverage of the case broadcast within the first 2 weeks of the discovery of bodies on Robinson's Linn County property in June 2000. In the motion, defendant had also submitted articles about the case published by the Kansas City Star from June 6, 2000, to July 27, 2001. During this time period, the Kansas CityPage 58 Star published 72 stories. More than half of them were published in the same month the story broke. Coverage gradually dissipated and was nearly nonexistent at the end of 2000 and early 2001. Thereafter, the majority of the coverage shifted from reports about Robinson and the crimes to trial coverage. Judge Anderson denied the motion in a March 12, 2002, order, explaining:"Despite the extraordinary amount of attention this case has received from the public and in the press thus far, the Court is not convinced that the defendant cannot obtain a fair trial. Johnson County is a large county with a sophisticated pool of potential jurors. The Court is confident that appropriate voir dire and jury selection methods will result in a fair and impartial jury that will decide the case on the evidence presented in court and on its merits. The presumption of innocence and the right to a fair trial are of the utmost importance to the rule of law in this country. The system simply does not function without it. If it becomes apparent during voir dire that an impartial jury cannot be found, the Court will not be reluctant to order a change of venue." 2. Renewed Motion for Venue Change after Voir Dire On October 3, 2002, after completing voir dire, Robinson filed "Defendant's Renewed Motion for Change of Venue, or, in the Alternative, to Discharge the Jury Panel," arguing that voir dire had proven inadequate to overcome community bias. At the outset of jury selection, roughly 1,200 Johnson County residents were issued summonses and ordered to appear in four groups of 300, but the district judge later released the final two panels. Veniremembers completed a juror questionnaire (questionnaire) prepared by the parties, eliciting their views on pretrial publicity, the death penalty, and other case-specific facts and issues.Page 59 With the agreement of the parties, the trial court conducted jury selection in four phases. In the first phase, Judge Anderson called prospective jurors in groups of 60 to explore and rule on hardship challenges. In the second phase, Judge Anderson assigned jurors to six-member panels to conduct small group voir dire on pretrial publicity and death penalty topics. After the parties completed voir dire of each panel, the district judge ruled on challenges for cause. From September 18 to October 1, 2002, the parties examined 43 panels made up of 259 veniremembers. Nearly all had some knowledge of the case. Judge Anderson passed only 83 of the 259 panelists to the third phase of jury selection. A majority of these disqualified panelists, 167 of 259 (64 percent), were excused for cause based on preconceived opinions of the case, firm death penalty opinions (both for and against), or both. Specifically, 74 of the 259 panelists (28.5 percent) were excused based solely on firm opinions due to exposure to pretrial publicity, 72 panelists (27.7 percent) were excused based solely on firm opinions regarding the death penalty, and 21 additional panelists (8.1 percent) were excused on both pretrial publicity and death penalty grounds. In total, 95 of the 259 panelists were excused, in whole or part, due to bias related to pretrial publicity and 93 panelists were excused, in whole or part, based on their disqualifying death penalty opinions. Judge Anderson liberally excused panelists holding preconceived opinions, granting 92 of the 100 challenges defendant asserted on this basis. Nine of the 259 panelists (3.4 percent) were excused because of previously undisclosed hardships or grounds unrelated to pretrial publicity or the death penalty. Of the 83 panelists passed to general voir dire, 52 were passed without any challenge for cause asserted by either party. The 31 other panelists were passed over thePage 60 objection of one of the parties4 from the State and 27 from defendant. However, Robinson challenged 19 of these 27 based on death penalty views and 8 on grounds related to bias arising from exposure to media coverage. During general voir dire, Judge Anderson passed 65 of the 83 panelists, excusing 18 on grounds unrelated to pretrial publicity. However, the district judge needed only 51 panelists to seat a jury of 12 with 5 alternates. The parties agreed to release the 14 jurors with the highest assigned juror numbers. Juror 440, whom Robinson had previously challenged unsuccessfully on pretrial publicity grounds, was 1 of the 14 panelists released. This left only 7 prospective jurors on the final panel that defendant had challenged unsuccessfully on grounds of bias arising from exposure to pretrial publicity. In the final phase of jury selection, the parties exercised peremptory challenges. Among those jurors seated, 11 of 12 were passed by the parties without any objection based on preconceived opinions of guilt, and all jurors confirmed their ability to serve impartially. Defendant had challenged only one of the seated jurors, Juror 39, on grounds of bias related to pretrial publicity. Eight of the 12 jurors were passed for cause without challenge from either party (Jurors 87, 92, 131, 147, 214, 246, 302, and 309). At the start of the eighth day of trial, Juror 214 was excused because of an emergency medical hardship in her family and was replaced by Alternate Juror 340. The parties had passed Juror 340 without challenge. While every seated juror was familiar with the case, most had limited exposure to the media's coverage. All but two members of the jury characterized their exposure to pretrial publicity as minimal, passing, or light; and several members said they saw coverage when the story first broke 2 years earlier and their recollection of the reported facts had diminished over time.Page 61 After hearing argument on the renewed motion for venue change on October 4, 2002, the trial judge denied the motion, finding the jury selection process had yielded a fair and impartial jury. 3. Second Renewed Motion for Venue Change On October 7, 2002, just before opening statements, defendant renewed his motion to change venue for a second time. Defense counsel explained that earlier that morning, he entered Judge Anderson's chambers and noticed a copy of that morning's Olathe Daily News sitting in the reception area. The front page of the newspaper contained Robinson's photograph, and the newspaper's banner headline read "Robinson to face his jury" and the subheading read "Defense says trial should be moved." Defense counsel explained that when he emerged from chambers, the jury walked past him, coming within 2 feet of the paper, which was face up on the reception counter. The defense believed jurors could have seen the headlines, warranting a venue change. The trial court denied the second renewed motion for venue change, finding that he had "no idea" whether any jurors saw the newspaper, but even if they did, there was no prejudice in light of the content and given the media's extensive reporting on defendant's motion to change venue earlier that spring. 4. Third Renewed Motion for Venue Change Defendant renewed his motion to change venue for a third time on October 9, 2002, explaining that a local radio personality had been giving away T-shirts outside the courthouse as a publicity stunt that morning. The front of the T-shirts read "Roll Out the Barrels! Of Evidence," and the back read "John E. Robinson Trial 2002."Page 62 Judge Anderson found that none of the jurors were exposed to the publicity stunt or T-shirts because of safeguards the court had taken, including bringing jurors into the courthouse through a secluded entry away from the incident. Judge Anderson denied the motion, concluding the incident did not affect jurors "in any way, shape or form."Legal Framework and Standard of Review Robinson argues the district judge's denial of his change of venue motions violated his constitutional right to an impartial jury. The Sixth Amendment guarantees an accused "[i]n all criminal prosecutions" the right to a trial by "an impartial jury." U.S. Const. amend VI. This protection is incorporated into and made applicable to the States through the due process provision of the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 153-58, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968). A constitution-based claim for venue change can arise under a theory of presumed or actual Sixth Amendment prejudice. State v. Longoria, 301 Kan. 489, 506, 343 P.3d 1128 (2015). "'[A]ctual prejudice,' occurs 'where the effect of pretrial publicity manifested at jury selection is so substantial as to taint the entire jury pool.'" State v. Carr, 300 Kan. 1, 57, 331 P.3d 544 (2014) (quoting Goss v. Nelson, 439 F.3d 621, 628-29 [10th Cir. 2006]), cert. granted in part 135 S. Ct. 1698 (2015). "'In cases of actual prejudice, "the voir dire testimony and the record of publicity [must] reveal the kind of wave of public passion that would have made a fair trial unlikely by the jury that was impaneled as a whole." [Citations omitted.]'" 300 Kan. at 57. "Jury selection is a task 'particularly within the province of the trial judge.'" Carr, 300 Kan. at 75 (quoting Ristaino v. Ross, 424 U.S. 589, 594-95, 96 S. Ct. 1017, 47 L. Ed.Page 63 2d 258 [1976]). A district judge's ruling on juror impartiality "is entitled to special deference." 300 Kan. at 75. Accordingly, we review claims of actual prejudice under the abuse of discretion standard. 300 Kan. at 75. "An abuse of discretion can occur in one of three ways謡hen the trial court makes an error of law; bases its decision on facts not supported by the evidence; or makes an arbitrary, fanciful, or unreasonable decision." Longoria, 301 Kan. at 509. Defendant also challenges Judge Anderson's rulings under the Kansas change of venue statute, K.S.A. 22-2616(1). As with claims of actual prejudice, we review the trial court's ruling under the statute for abuse of discretion. Longoria, 301 Kan. at 509.Actual Prejudice Robinson advances five arguments in support of his actual prejudice challenge, arguing that the trial court abused its discretion by: (1) failing to acknowledge uncontroverted social science evidence that individuals cannot set aside preconceived opinions; (2) applying K.S.A. 22-2616 contrary to the Sixth Amendment; (3) finding voir dire eliminated those with bias; (4) failing to acknowledge the media's interference with proceedings; and (5) failing to acknowledge jurors' failure to abide by admonitions. 1. Did the trial court's findings ignore social science research? Robinson argues the district judge erroneously denied the venue change motion in light of uncontroverted expert witness testimony describing social science studies that suggest people struggle to genuinely set aside preconceived beliefs. Given this testimony, Robinson believes Judge Anderson's finding that voir dire could overcome community bias is unsupported by record evidence.Page 64 There are several problems with Robinson's argument. First, it fails to place the expert witness' testimony in its proper context. During the evidentiary hearing, the defense asked its expert witness, Dillehay, whether Dahl's venue questionnaire was valid even though it failed to explore respondents' ability to set aside their opinions of the case. Dillehay opined that such questions were properly excluded from the surveys because they do not produce reliable survey data. In support of this opinion, Dillehay identified several studies suggesting humans' struggle to genuinely set aside preconceived beliefs yet will attest to their ability to do so. Dillehay did not attempt to extrapolate these findings as support for the broader proposition that Robinson advances here葉hat anyone who forms an opinion of the case is thereafter unalterably tainted and rendered unqualified to serve as a juror. In fact, the Supreme Court has observed that empirical studies support the opposite conclusion. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1054-55, 111 S. Ct. 2720, 115 L. Ed. 2d 888 (1991) ("Empirical research suggests that in the few instances when jurors have been exposed to extensive and prejudicial publicity, they are able to disregard it and base their verdict upon the evidence presented in court."). More importantly, Dillehay later testified that this phenomenon, which he called "juror minimization," could be overcome by employing enhanced voir dire techniques. Dillehay opined that enhanced voir dire would facilitate open, genuine responses from veniremembers, enabling the district judge to identify and remove those rendered unqualified to serve due to preconceived opinions of guilt. This testimony provides record support for Judge Anderson's finding that "appropriate voir dire and jury selection methods will result in a fair and impartial jury." For these reasons, the ruling is supported by substantial, competent evidence and does not constitute an abuse of discretion. See State v. McCullough, 293 Kan. 970, 980-81, 270 P.3d 1142 (2012) (trial court abuses discretion where substantial competent evidence does not support a finding upon which a legal conclusion rests).Page 65 2. Did the trial court apply an incorrect legal standard? Robinson next argues the trial court applied an "impossibility of fair trial" standard under K.S.A. 22-2616(1) rather than the Sixth Amendment "reasonable likelihood" of an unfair trial standard embraced by the Supreme Court. See Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966) ("But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should . . . transfer it to another county not so permeated with publicity."). Robinson relies on language from the trial court's order denying the first venue change motion, which concluded that "[d]espite the extraordinary amount of attention this case has received from the public and in the press thus far, the Court is not convinced that the defendant cannot obtain a fair trial." (Emphasis added.) Robinson believes the use of the term "cannot" proves the district judge employed an "impossibility" standard to defendant's venue change motion. However, this language merely tracks the venue change statute itself, which compels the court to transfer venue where prejudice against defendant is so great that he or she "cannot obtain a fair and impartial trial in that county." (Emphasis added.) K.S.A. 22-2616(1). We disposed of a substantively similar challenge in Carr, where defendant argued Kansas' venue change statute improperly elevated the standard of proof from "reasonable likelihood" of an unfair trial to an "absolute certainty" of an unfair trial by compelling a venue change only when defendant cannot obtain a fair trial. 300 Kan. at 80. However, we observed in Carr that Kansas courts consistently apply a "reasonable certainty" standard of proof (i.e., "'reasonable certainty' that the defendant cannot obtain a fair trial in the ordinary venue") to challenges under Kansas' venue change statute and found thisPage 66 standard to be wholly consistent with the Supreme Court's "reasonable likelihood" standard. 300 Kan. at 80-81. Carr disposes of Robinson's challenge because it is founded on Judge Anderson's reference to the same statutory language at issue there. Defendant also contends Judge Anderson's order is erroneous because it fails to address the constitutionally based venue challenge apart from his statutory challenge. However, the trial court's memorandum decision addressed the motion to change venue under "K.S.A. 22-2616, ァ 10 of the Kansas Constitution's Bill of Rights, and the Sixth and Fourteenth Amendments to the United States Constitution." While the order does not make separate findings between the statutory and constitutionally based theories in the motion, "defendant[ ] never sought a more complete recitation or writing to explain Judge [Anderson's] venue rulings; and, if [he] thought the findings were insufficient for appellate review, [he] had an obligation to do so." Carr, 300 Kan. at 65. Robinson's failure to do so forecloses his challenge. See Longoria, 301 Kan. at 506 (Where defendant fails to "object to the adequacy of the trial court's factual findings, we assume that the trial court made the findings necessary to deny the change of venue."). 3. Did voir dire prove ineffective to overcome prejudice? In his third actual prejudice argument, Robinson claims the trial court erred by failing to recognize that jury selection only confirmed the need to change venue. This challenge goes to the heart of the question of actual Sixth Amendment prejudice."When faced with a claim of actual prejudice, a trial court must 'review the media coverage and the substance of the jurors' statements at voir dire to determine whether a community-wide sentiment exists against the defendant. Negative media coverage by itself is insufficient to establish actual prejudice.'" Longoria, 301 Kan. at 508 (quoting Carr, 300 Kan. 1, Syl. カ 6).Page 67 In reviewing a claim of actual prejudice, we examine "'"whether the judge had a reasonable basis for concluding that the jurors selected could be impartial."'" Carr, 300 Kan. at 74-75. Robinson first argues the character and composition of the jury panel, as well as the members of his jury, demonstrate actual prejudice. To the contrary, Judge Anderson's jury selection procedures proved to be successful in identifying bias and removing those veniremembers adversely affected by pretrial publicity. During the second phase of jury selection, the district judge, consistent with the recommendation of Robinson's expert, Dillehay, assigned veniremembers to small group panels consisting of six members and allowed counsel for the parties to question them extensively on pretrial publicity and death penalty topics. Through this process, Judge Anderson excused 95 of the 259 panelists, roughly 37 percent, in whole or in part, because of firm opinions of guilt arising from exposure to pretrial publicity. Of the 83 panelists passed to the third phase of jury selection, general voir dire, Robinson had challenged only 8 unsuccessfully on grounds related to pretrial publicity or preconceived opinions of guilt. Robinson argues 52 of the 83 panelists (nearly 63 percent) passed to the third phase were biased. However, this calculation includes jurors who merely expressed a belief in capital punishment, even if they had not formed opinions about the case as a result of exposure to pretrial publicity. Robinson's selection criteria were also overly broad, including jurors who expressed a belief or a "leaning" toward the belief that Robinson was guilty or made statements Robinson believed to be "suggestive of such a belief either during voir dire or merely in their questionnaire responses. Robinson claims 28 of the 83 panelists held opinions of guilt (either exclusively or in addition to views in support of capital punishment). Yet, he challenged only 8 of the 83 panelists on suchPage 68 grounds. The discrepancy between Robinson's calculation and his actual challenges for cause highlights the unreliability of defendant's calculations. Moreover, the members of defendant's jury were well qualified. The jury consisted of 11 members who entered the box without preconceived opinions of the case, and all confirmed their ability to set aside personal views and decide the case on the evidence at trial. Most jurors had minimal exposure to the media's coverage of the case, and none expressed community hostility toward Robinson. Defendant argues that 8 of the 12 members of the jury were biased. However, defendant's count suffers the same methodological flaws identified above擁t includes jurors based solely on their death penalty views unrelated to pretrial publicity and the selection criteria were overly broad. Excluding those jurors defendant counted based solely on their alleged opinion regarding sentence, Robinson identified only four jurors (Jurors 39, 87, 246, and 302) who purportedly held preconceived opinions of guilt. However, a review of their voir dire testimony confirms their impartiality. Juror 39 agreed there had been a lot of media coverage, mostly adverse to Robinson. When defense counsel asked whether the coverage had caused her to form any opinions about defendant's guilt, Juror 39 said, "Well, from what I've read, it seems that the crimes that were committed were committed by him. Again, that's just based on what I've read and what I've heard on the news." Even so, Juror 39 confirmed her ability to set these facts and opinions aside and committed to holding the State to its burden of proof at trial. When questioned on the subject again during general voir dire, Juror 39 understood she would have to disregard all media facts and start with a clean slate at trial and confirmed her willingness and ability to presume defendant innocent.Page 69 Juror 87 testified that she had formed no opinion of guilt and could set aside all media reported facts in response to questioning from both parties. In the questionnaire, she said that the published reports did not look good for defendant but shared that people only get half the story in the paper and those reports are unbalanced and one-sided. She also clarified that she had not personally decided Robinson was guilty and would set aside media information and render a verdict based on the evidence. Defendant did not challenge Juror 87 for cause. Juror 246, in questionnaire responses, said that she had no idea about Robinson's guilt or innocence, that if he did commit the crimes he was very sick, and that based solely on the media's coverage it appeared there was a probability of guilt. Even so, Juror 246 confirmed in response to questioning that she remained unsure as to defendant's guilt or innocence. Juror 246 said her memory of media reported facts had faded over time. Even if the evidence at trial refreshed her recollection of media facts, Juror 246 said she would not consider them or allow them to influence her decision. She understood the applicable burden of proof and confirmed she would acquit Robinson if the State failed to meet its burden. Defendant did not challenge Juror 246 for cause. Juror 302 said she was unsure as to Robinson's guilt or innocence in questionnaire responses. She felt the media had portrayed Robinson as guilty but clarified this was not necessarily her view. Juror 302 was confident she could set aside media-reported facts and decide the case on the evidence. Defendant did not challenge Juror 302 for cause. Based on his extensive jury selection procedures and the voir dire testimony of seated jurors, Judge Anderson had a reasonable basis for concluding that the jurors selected could be impartial. State v. Ruebke, 240 Kan. 493, 500-01, 731 P.2d 842 ("Unless we are to assume that (1) the jurors selected to try the defendant violated their oath when they swore that they could give the defendant a fair trial or (2) an individualPage 70 can commit a crime so heinous that news coverage generated by that act will not allow the perpetrator to be brought to trial, the defendant has not established substantial prejudice."), cert. denied 483 U.S. 1024 (1987); see Gardner v. Galetka, 568 F.3d 862, 890 (10th Cir. 2009) (holding that there was no actual prejudice even though 55 percent of prospective jurors had formed an opinion about guilt, and 4 of 12 impaneled jurors indicated that they thought defendant was guilty, where all indicated they could decide the case on the evidence alone); Hale v. Gibson, 227 F.3d 1298, 1320 (10th Cir. 2000) (defendant must show more than that the juror had a preconceived notion of guilt; he must show that the juror had such a fixed opinion that he or she could not judge impartially). Robinson suggests the jurors' declarations of impartiality were unreliable in light of the extensive and unfavorable media attention. However, we have emphasized that "[n]egative media coverage by itself is insufficient to establish actual prejudice." Carr, 300 Kan. 1, Syl. カ 6. Only in rare and extreme cases will the court disregard juror declarations of impartiality in favor of a finding of actual prejudice. For example, in Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961), the media unleashed a barrage of newspaper headlines, articles, cartoons, and pictures against defendant leading up to trial. These stories examined defendant's prior convictions, announced his identification in a police lineup, reported that he had been placed at the scene of the crime, and explained that "the six murders were solved but petitioner refused to confess." 366 U.S. at 725. On the day before trial, the media reported that Irvin had admitted to the murder of the victim in the case, as well as other murders. The press also reported that defendant offered to plead guilty to avoid the death penalty. The trial court excused 268 of the 430 veniremembers (62 percent) based on their bias, and 8 of 12 jurors entered the box with preconceived opinions of guilt. GivenPage 71 these circumstances, the Supreme Court found it improper to rely on juror representations of impartiality. 366 U.S. at 727-28. Since Irvin, the Supreme Court has twice considered and rejected claims that juror declarations of impartiality should be set aside. See Patton v. Yount, 467 U.S. 1025, 1029-30, 1033-34, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984) (although 77 percent of veniremembers admitted they carried opinions of guilt and 8 of the 14 jurors and alternates admitted the same, declarations of impartiality were reliable because passage of time had minimized jurors' conviction in opinions); Murphy v. Florida, 421 U.S. 794, 800-01, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975) (refusing to set aside the jurors' declarations of impartiality where the voir dire testimony did not reflect the wave of community hostility present in Irvin). In Carr, we considered but declined the invitation to second-guess jurors' assurances of impartiality under facts comparable to Robinson's:"The jury pool here was far less polluted by preconceptions on guilt; in Irvin, 90 percent of potential jurors believed the defendant was guilty. Here, [the trial judge] was not forced to excuse 60 percent of the jury pool at the outset. The number of jurors ultimately seated who had to set aside their earlier opinions was half of that who would have had to do so in Irvin; and none of them expressed community outrage. We also are reassured here by the protective measures taken by [the trial judge], including use of jury questionnaires and individual voir dire." 300 Kan. at 78-79. As in Carr, Irvin is distinguishable on the facts. In Irvin, the trial court dismissed 62 percent of the entire venire based on firmly held opinions of guilt. Here, the figure was 37 percent. Only a small percentage of the 83 panelists passed to general voir dire had been challenged based on preconceived opinions of guilt. Nearly all, 11 of 12 jurors, entered the box having formed no such opinion of defendant, a vast improvement overPage 72 Irvin, where 8 of 12 jurors held preconceived opinions of guilt, and even better than in Carr, where 4 of 12 held preconceived opinions. With few exceptions, jurors did not actively follow the media coverage, and media facts did not contain the "smoking-gun" reports of particular concern in Irvin, such as confessions, results of lie-detector tests, and offers to plead guilty to avoid the death penalty. Judge Anderson seated jurors who had formed no opinions, "who had forgotten or would need to be persuaded again." Patton, 467 U.S. at 1034. In sum, Judge Anderson exercised great care in designing an enhanced jury selection process. As defendant's expert, Dillehay, predicted, the process proved to be a highly effective tool for combating the impact of potentially prejudicial pretrial publicity熔ne that yielded a qualified and impartial jury. As such, Judge Anderson had reasonable grounds to accept jurors' declarations of impartiality in this case, and Robinson has failed to demonstrate actual prejudice. See Gardner, 568 F.3d at 887-90 (finding no Sixth Amendment prejudice where four jurors had formed opinions of guilt, protective measures trial court implemented during jury selection added credibility to the juror's declarations of impartiality); Hale, 227 F.3d at 1332-33 (refusing to set aside declarations of impartiality where half of jurors entered box with opinions of guilt, but voir dire did not uncover "an atmosphere of hostility toward the defendant, nor did the trial court have a difficult time in seating the jury"). 4. Did media interference demonstrate actual prejudice? Robinson argues the media's interference with courtroom proceedings necessitated a finding of actual prejudice. First, he suggests media saturation hit the courthouse steps when a local radio station conducted a publicity stunt by handing out "Roll out the Barrels of Evidence" T-Page 73 shirts outside the courthouse during trial葉he incident giving rise to the third renewed venue change motion. However, Robinson does not dispute Judge Anderson's factual finding that the jury was not exposed to this incident, and that, therefore, it could not have affected the jurors' impartiality. We defer to the district judge's findings and concur with his legal conclusion. See State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011) (applying deference to trial court factual findings in motion to withdraw plea). Second, Robinson suggests the media coverage reached the court's chambers on October 7, 2002, when jurors had the opportunity to view the front page of that morning's copy of the Olathe Daily News葉he incident giving rise to the second renewed venue change motion. Defendant failed to establish that any juror actually saw the article, and even if a juror or jurors had, we have no basis in the record to disagree with Judge Anderson's finding that the content was not prejudicial. See State v. Bible, 175 Ariz. 549, 566-67, 858 P.2d 1152 (1993) (finding no error in denying motion to change venue where appellant failed to demonstrate publicity resulted in actual prejudice). Finally, Robinson suggests media coverage spilled into the courtroom itself when jurors were exposed to prejudicial comments during voir dire. Robinson explains that during questioning of one small group panel, a veniremember said she sensed that she was "in the presence of evil" around Robinson. Defendant acknowledges this prospective juror was excused but argues Juror 298, who served on the jury, was subjected to the comment. Of course, the statement in question was made by a prospective juror, not publicized by the media, and Juror 298's voir dire responses confirmed she had formed no opinion of guilt and was committed to deciding the case based on the evidence. Not surprisingly, defendant did not challenge Juror 298 as biased by pretrial publicity. Similarly, defendant argues that Juror 184, who served on the jury, heard a fellow panelist describe Robinson as a "predator." Again, this comment was made by a fellowPage 74 veniremember, not publicized by the media. Juror 184 entered the box without any preconceived opinion of Robinson's guilt, and defendant did not challenge this juror for cause on grounds related to bias or exposure to pretrial publicity. Robinson offers no further examples of media interference during court proceedings, and none are apparent from the record. Robinson fails to demonstrate actual prejudice. 5. Did jurors ignore admonitions, demonstrating actual prejudice? Finally, Robinson suggests veniremembers' refusal to abide by the district judge's admonitions to avoid media coverage necessitated a finding of actual prejudice. Defendant believes prospective jurors did not follow this admonishment because several panelists knew they would not be sequestered, a fact allegedly reported in the media, before the district judge made the announcement. The record does not support defendant's deduction-based argument. Judge Anderson expressly found that court administrators informed several veniremembers of the fact they would not be sequestered before the district judge made the announcement. Robinson does not dispute this finding. Moreover, defendant fails to establish that any member of his jury actually failed to comply with the district judge's admonitions. While it is concerning that some prospective jurors may have learned the trial court's position on sequestration from media sources, this does not establish actual prejudice, given the extensive protective measures Judge Anderson implemented throughout jury selection and the character and composition of jurors ultimately seated.Page 75 Statutory Venue Challenge Independently, Robinson argues Judge Anderson abused his discretion in denying his motions under Kansas' venue change statute. K.S.A. 22-2616(1) compels a venue change where the district judge "is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county." The burden falls on defendant to show prejudice in the community, not as a matter of speculation but as a demonstrable reality. State v. McBroom, 299 Kan. 731, 746, 325 P.3d 1174 (2014). A court considers nine factors in deciding whether community prejudice has reached levels warranting a change of venue under K.S.A. 22-2616(1):"[1] the particular degree to which the publicity circulated throughout the community; [2] the degree to which the publicity or that of a like nature circulated to other areas to which venue could be changed; [3] the length of time which elapsed from the dissemination of the publicity to the date of trial; [4] the care exercised and the ease encountered in the selection of the jury; [5] the familiarity with the publicity complained of and its resultant effects, if any, upon the prospective jurors or the trial jurors; [6] the challenges exercised by the defendant in the selection of the jury, both peremptory and for cause; [7] the connection of government officials with the release of the publicity; [8] the severity of the offense charged; and [9] the particular size of the area from which the venire is drawn." State v. Higgenbotham, 271 Kan. 582, 592, 23 P.3d 874 (2001). On the record before the court, the first, second, fifth, and eighth factors favored transfer of venue out of Johnson County at the time Judge Anderson ruled on the motions. The first factor weighed in favor of venue change because Dahl's surveys evidenced widespread circulation of the pretrial publicity throughout the community. ThePage 76 second factor weighed slightly in favor of changing venue as the surveys demonstrated that case recognition was not as extensive in Harvey and Ellis Counties. Even so, recognition of the case outside the venue of origin was extremely high, with 80 percent of Harvey County residents and 64 percent of Ellis County residents expressing recognition of the case. Thus, the weight of this factor in the overall analysis is diminished. As to the fifth factor, Dahl's venue study suggests media coverage had an effect on prospective jurors because 67 percent of respondents believed defendant was "probably" or "definitely" guilty. Regarding the eighth factor, Robinson was charged with two counts of capital murder and one count of first-degree murder. "[T]he most serious charged offenses could not have been more severe or their potential consequences more irreversible." Carr, 300 Kan. at 82. Five factors, including the third, fourth, sixth, seventh, and ninth, favored denial of each of defendant's motions for venue change. The third factor weighed against a change of venue as more than 2 years had lapsed between the time the story first broke in June 2000, when media coverage was at its height, and Robinson's trial in October 2002, when coverage had dissipated. The fourth factor weighed heavily against a change of venue because Judge Anderson took great care in designing and implementing his four-phase jury selection process. The sixth factor, challenges exercised, weighed in favor of denying a venue change. Judge Anderson granted 92 of defendant's 100 challenges asserted on pretrial publicity grounds. Of those jurors unsuccessfully challenged, all but one, Juror 39, was removed by peremptory challenge. Regarding the seventh factor, the media coverage was not materially connected to government officials. Robinson suggests that the prosecutor participated in press conferences, but none of the media-published facts defendant contends to be uniquely prejudicial were connected to the prosecution. Finally, the ninth factor weighed against a venue change because Johnson County had one of the largest population bases in the state from which to draw the venire.Page 77 The statutory venue challenge in Carr provides a useful comparison because there the same expert witness produced nearly identical survey results in a capital murder trial situated in one of the largest metropolitan areas in the state. In every relevant category (case recognition, opinion of guilt, and strength of evidence), the survey responses in Carr revealed case recognition and prejudgment at levels higher than or equal to those in this case. 300 Kan. at 49. Even so, the majority held that Judge Paul Clark did not abuse his discretion under K.S.A. 22-2616 in denying defendants' motions for venue change. 300 Kan. at 82. Given the similarity between the two cases, Carr offers compelling support for Judge Anderson's rulings. In fact, the rulings are all the more defensible here because, unlike Carr, Robinson's venue expert, Dillehay, opined that enhanced voir dire could effectively inoculate the effects of extensive pretrial publicity. While Dillehay believed "enhanced voir dire" would be infeasible from an administrative perspective, Judge Anderson was undaunted, implementing the very type of voir dire process Dillehay described. The process was lengthy but, in hindsight, proved highly effective in identifying and removing those rendered unqualified by their exposure to pretrial publicity. Our other case precedents offer additional support for Judge Anderson's rulings. See State v. Longoria, 301 Kan. 489, 510-12, 348 P.3d 1128 (2015) (reasonable person could have agreed with denial of motion to change venue despite fact that 97 percent of respondents recognized the case and some panelists held strong opinions of guilt); McBroom, 299 Kan. at 750-52 (no error in denial of venue change where nearly 70 percent of respondents believed defendant "probably" or "definitely" guilty); State v. Verge, 272 Kan. 501, 505-08, 34 P.3d 449 (2001) (no error in denying venue change where 96.7 percent of Dickinson County residents recalled the case; 71.7 percent had talked about the case; and 64 percent believed Verge was "definitely" or "probably" guilty); Higgenbotham, 271 Kan. at 593-95 (no error in denial of venue change wherePage 78 95.7 percent of Harvey County respondents recalled the case, 60.6 percent believed defendant was guilty, and 53 percent believed there was evidence of guilt); State v. Jackson, 262 Kan. 119, 129-32, 936 P.2d 761 (1997) (finding no error in denial of venue change where 89.7 percent of respondents recalled the case and 60 percent had formed opinion of guilt); State v. Anthony, 257 Kan. 1003, 1007, 1014-15, 898 P.2d 1109 (1995) (affirming denial of motion to change venue where 97 percent of Salina residents had heard of case, 63.8 percent felt evidence of guilt was strong or overwhelming, and more than half unsure of impartiality); State v. Swafford, 257 Kan. 1023, 1035-36, 897 P.2d 1027 (1995) (companion case to Anthony). Given the mix of evidence on the nine factors relevant to K.S.A. 22-2616(1) and recognizing that some factors weighed in favor of venue change, while others weighed against such relief, we conclude that reasonable judges could have agreed with Judge Anderson's decision to deny the requested motions to change venue under the statute. See Longoria, 301 Kan. at 512; Carr, 300 Kan. at 84. Thus, we find no abuse of discretion.Presumed Prejudice On appeal, defendant advanced only two theories supporting his venue challenge: actual prejudice under the Sixth Amendment and abuse of discretion under Kansas' venue change statute. However Robinson's first motion to change venue on Sixth Amendment grounds was pursued prior to voir dire預 point at which a claim of actual prejudice under the Sixth Amendment was premature. Defendant's supporting memorandum relied, in part, on a presumed prejudice theory. Furthermore, in a Rule 6.09 (2014 Kan. Ct. R. Annot. 52) letter to this court, defendant cites the United States Supreme Court's most recent opinion addressing presumed prejudice, Skilling v. United States, 561 U.S. 358, 381-85, 130 S. Ct. 2896, 177 L. Ed. 2d 619 (2010).Page 79 "[Because this is a death penalty case, this court is empowered to notice and discuss unassigned potential errors under K.S.A. 201[4] Supp. 21-6619(b)." Carr, 300 Kan. at 16. Independently, the Kansas statute compels the court, with regard to sentence, to determine "[w]hether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor." K.S.A. 2014 Supp. 21-6619(c)(1). In the interests of justice, we consider presumed prejudice as a potential unassigned error on appeal. Presumed prejudice occurs "'where the pretrial publicity is so pervasive and prejudicial that we cannot expect to find an unbiased jury pool in the community. We "presume prejudice" before trial in those cases, and a venue change is necessary.'" Carr, 300 Kan. at 57. In deciding whether to presume prejudice, courts consider seven factors enunciated in Skilling, 561 U.S. at 381-85:"(1) media interference with courtroom proceedings; (2) the magnitude and tone of the coverage; (3) the size and characteristics of the community in which the crime occurred; (4) the amount of time that elapsed between the crime and the trial; (5) the jury's verdict; (6) the impact of the crime on the community; and (7) the effect, if any, of a codefendant's publicized decision to plead guilty." Carr, 300 Kan. at 62 In reviewing presumed prejudice claims, "we apply a mixed standard of review, examining the trial court's findings of fact for substantial competent evidence and the ultimate legal conclusion drawn from the facts謡hether to presume prejudice妖e novo." Longoria, 301 Kan. at 506. Turning to the first Skilling factor, defendant argued in his second and third renewed motions to change venue that a media circus spilled into the courtroom.Page 80 However, as set forth in defendant's actual prejudice challenge, defendant failed to demonstrate any prejudice from the T-shirt and Olathe Daily News incidents giving rise to these motions. As to the second Skilling factor, Robinson argues the media reported prejudicial facts that were inadmissible at trial, such as Robinson's white-collar criminal history; his connection to other missing persons; his involvement with other women; and his prosecution for fraud and murder in Missouri. However, the presumed prejudice doctrine "cannot be made to stand for the proposition that juror exposure to information about a state defendant's prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process." Murphy, 421 U.S. at 799. The pretrial publicity included in the record was predominantly fact-based reporting. See Longoria, 301 Kan. at 507 (factor weighs against venue change where reporting is more fact based than inflammatory). There were no "smoking-gun" reports, such as confessions of defendant, results of lie detector testing, or defendant's offer to plead guilty to avoid the death penalty. See Skilling, 561 U.S. at 382-83 (the lack of "evidence of the smoking-gun variety" weighed against a finding of presumed prejudice). Moreover, Dahl's venue study suggested that some of these media facts were not widely recognized by the community or the level of recognition was similar to that in other venues. The third Skilling factor葉he size and characteristics of the community謡eighed against a finding of presumed prejudice because Johnson County is one of the largest counties in the state, with close to half a million residents. Regarding the fourth Skilling factor, more than 2 years had elapsed from the time the story first broke and the start of trial. Even so, survey results more than 1 year after Robinson's arrest showed a high degree of case recognition. This factor is inconclusive orPage 81 weighed slightly against a finding of presumed prejudice. See Longoria, 301 Kan. at 507-08 (factor weighed against venue change where case recognition high but memory of details had faded); Carr, 300 Kan. at 68 (factor inconclusive where substantial time elapsed but evidence of juror recollection remained high at voir dire). The fifth Skilling factor, the jury's verdict, was unknown at the time the district judge ruled and carries no weight in the analysis. See Longoria, 301 Kan. at 508. On the sixth Skilling factor, none of the publicity of record clearly addresses the impact of the crimes on the community. The record includes two articles warning of the dangers of online dating in the aftermath of the crimes, but these reports reflect opinions of a law enforcement officer and a journalist rather than community-wide sentiment. On the other hand, Dahl's venue study revealed a high level of case recognition, suggesting the crimes generated interest and were followed by members of the community. Thus this factor may have weighed slightly in favor of a finding of presumed prejudice. The seventh and final Skilling factor用ublicized confession of a codefendant妖oes not factor into the analysis because Robinson alone was charged with the offenses in this action and the State never charged any codefendant. Cf. Carr, 300 Kan. at 69. In the end, only the sixth Skilling factor weighed in favor of a finding of presumed prejudice. The fifth and seventh factors were not relevant to the analysis, and the fourth factor was inconclusive at best. The first, second, and third Skilling factors weighed against a finding of presumed prejudice at the time Judge Anderson ruled on each motion. "The bar facing the defendant wishing to prove presumed prejudice from pretrial publicity is extremely high." United States v. McVeigh, 153 F.3d 1166, 1182 (10th Cir. 1998), disapproved on other grounds by Hooks v. Ward, 184 F.3d 1206 (10th Cir. 1999).Page 82 Relief is granted only in those rare cases "where publicity 'created either a circus atmosphere in the court room or a lynch mob mentality such that it would be impossible to receive a fair trial.'" Goss v. Nelson, 439 F.3d 621, 628 (10th Cir. 2006) (quoting Hale v. Gibson, 227 F.3d 1298, 1332 [10th Cir. 2000]). Based on our de novo review, and considering the Skilling factors in light of the evidence, the record does not establish that "an irrepressibly hostile attitude pervaded the community." Stafford v. Saffle, 34 F.3d 1557, 1567 (10th Cir. 1994). Thus Judge Anderson did not err in failing to presume prejudice under the Sixth Amendment. See Longoria, 301 Kan. at 508; Carr, 300 Kan. at 65-70.2. CONTINUANCE Defendant next challenges the trial court's denials of his continuance motions. He believes Judge Anderson denied them to penalize him for exercising his right to counsel of choice. Independently, Robinson argues the rulings constitute an abuse of discretion.Additional Factual and Procedural Background On June 14, 2000, Judge Anderson appointed Kansas' Death Penalty Defense Unit (DPDU) to represent Robinson. The State filed its notice to pursue a death penalty phase sentencing proceeding, along with its alleged aggravating circumstance on March 2, 2001. The DPDU actively litigated the case for 13 months, investigating the charges, filing 39 substantive motions, and defending Robinson at preliminary hearing. 1. Substitution of Counsel On July 18, 2001, attorney Bob L. Thomas entered his appearance as attorney of record for Robinson. Later that day, the DPDU filed a motion to withdraw. At the July 23, 2001 hearing, Judge Anderson made inquiry regarding Thomas' qualifications.Page 83 Thomas had practiced as a licensed attorney for about 1 year before entering his appearance in this case. In the year, he had served as lead counsel on two noncapital jury trials. Thomas had hired a private investigator and planned to add several legal assistants but confirmed he would be the only attorney on the defense team. Judge Anderson observed that Thomas did not meet Kansas Board of Indigents' Defense Services' qualification standards for appointment to a capital case and that Robinson's Sixth Amendment right to representation by counsel of choice had to be tempered by his right to competent and effective counsel. To balance these competing interests, the district judge explored the possibility of having the DPDU remain in the case as cocounsel. Thomas and defendant were willing to consent to such an arrangement, with the understanding that Thomas would serve as lead counsel. The DPDU declined, arguing that the arrangement was unworkable and that Robinson was no longer eligible for DPDU assistance. At a continued hearing on July 27, 2001, Judge Anderson granted the DPDU's motion to withdraw and announced his intention to appoint capital defense qualified cocounsel to assist Thomas. Neither Robinson nor Thomas objected. On August 2, the trial court entered orders appointing Patrick Berrigan and Sean O'Brien, both of whom had extensive capital defense litigation experience, as cocounsel in this case for the purpose of representing Robinson "[d]uring the prosecution and trial of said felony defendant, including sentencing." No party objected to these orders. Judge Anderson set the matter over for 1 month to give the newly formed defense team time to review motions and to give Berrigan time to recover from heart bypass surgery. O'Brien's associate attorney, Joseph Luby, and Berrigan's associate attorney, Jason Billam, also served as members of Robinson's defense team.Page 84 2. First Motion for Continuance On September 20, 2001, Robinson filed his first motion to continue trial, citing extensive discovery, cocounsel's commitment in other cases, and the need to develop a mitigation case擁ncluding gathering mitigation evidence; investigating the State's aggravating circumstance; considering the possibility of psychological and neurological evaluations; interviewing defendant's family for testimony in the sentencing phase; and conducting a thorough background investigation of Robinson's educational, medical, employment, and criminal histories擁n support of the requested relief. Defense counsel claimed it needed "as much as a year to adequately prepare this case for trial" and requested the setting be moved from January 14 to September 16, 2002. At the September 21, 2001, hearing, Judge Anderson emphasized that if he granted the continuance, the new trial date would be a firm setting and no further continuance would be granted absent "extraordinary" circumstances. After confirming that defense counsel had evaluated their schedules and understood any new trial date would be firm, Judge Anderson granted the motion and reset trial for September 16, 2002. 3. Thomas' Withdrawal and Second Motion for Continuance On February 21, 2002, Thomas filed a motion to withdraw after receiving the State's February 13 supplemental discovery, which included documents indicating Marvin Ray, Thomas' former client, had offered to be a cooperating witness for the State. Later that same day, Robinson filed his second motion for continuance, arguing that counsel Berrigan and O'Brien (appointed counsel) and Thomas (retained counsel) had an agreement as to the division of labor in the case, whereby retained counsel was handling the guilt phase and appointed counsel the penalty phase. Robinson arguedPage 85 Thomas' withdrawal, combined with appointed counsels' obligations in other cases, made it impossible to prepare Robinson's defense before the September 16, 2002, trial setting. Appointed counsel requested a 4-month continuance. After confirming with Robinson that he was discharging Thomas as counsel of record, Judge Anderson granted Thomas' motion to withdraw and denied the continuance motion during a February 28 hearing. 4. Robinson's Third Request for Continuance On July 18, 2002, Robinson filed a third motion for continuance, alleging that discovery complications made it impossible to prepare Robinson's guilt phase defense before the September trial setting. On July 25, the trial court held an evidentiary hearing. a. Discovery Delays Phil Gibson, an investigator for the defense team, testified that it would take substantial time to complete witness interviews because of the State's massive endorsed witness list, which included roughly 600 witnesses, 79 of whom had been endorsed after the February 2001 preliminary hearing. However, the State had later provided a "will call" list that narrowed down those most likely to testify to around 200. Dean Stettler, Robinson's DNA expert, testified to delays related to the State's DNA disclosures. Stettler was engaged to evaluate law enforcement's DNA testing procedures and advise the defense on the need for independent testing. On March 22, 2002, he received three, 4-inch binders containing well in excess of 100 pages of law enforcement lab reports. The documents were in Bates-stamp order, but Stettler thought the Bates-stamp order was random. He said it took him 3 weeks to organize the documents in a logical order.Page 86 Once the reports were organized, Stettler met with members of the JOCO Lab and found 46 reports that had not been included in the State's disclosures. District Attorney Paul Morrison testified that the DNA testing was handled exclusively by the KCMO Lab and he did not give Stettler the 46 reports from the JOCO Lab because they pertained to hair analysis, tire track impression work, and latent print examinations, not DNA testing. Nevertheless, Stettler felt the reports might be useful and received copies the same day Stettler learned of the reports' existence. Stettler also reviewed the KCMO Lab's case file and confirmed the State had produced all reports. However, Stettler wanted to review the supporting data and requested the same. The KCMO Lab voluntarily produced this data on CD-ROM. Stettler did not maintain a current version of the software necessary to view the material electronically however, and it took him a month to find an independent lab to print the material for him. Stettler admitted he had a complete copy of the files maintained by both crime labs within a few weeks of receiving the State's disclosures. At the time of the hearing, Stettler had been in possession of the files for nearly 3 months and the CD-ROM for more than 10 weeks. Stettler said he could complete his work and advise the defense team on the need for independent testing within 3 to 4 weeks. On September 5, 2002, defense counsel informed the district judge that DNA samples had been sent to a lab for independent testing. No results were introduced at trial; nor are they included in the record on appeal.Page 87 b. Delay Related to the Division-of-Labor Agreement Thomas offered testimony regarding the need for continuance in light of defense counsels' division-of-labor agreement. He confirmed that the defense team had agreed he would handle the guilt phase, while appointed counsel, Berrigan and O'Brien, would handle the penalty phase. Thomas said the defense conducted work consistent with this division of labor agreement and committed to the September trial setting in reliance on it. Thomas also testified to the events giving rise to his withdrawal or discharge. Thomas had represented Marvin Ray in another matter before entering his appearance as Robinson's counsel in the summer of 2001. Shortly thereafter, he asked prosecutor Morrison whether the State had any "jail-house snitches," specifically mentioning Ray. Morrison said a few inmates, including Ray, had contacted his office, but Morrison believed Ray lacked credibility and the State was not interested in his testimony. The State made no further mention of Ray until February 2002, when it produced a letter Ray had written and other documents. Morrison testified the Ray letter and documents were disclosed with sufficient time to prepare Robinson's defense. Ray first contacted his office, offering to testify against Robinson, around July 2001. On October 4, the prosecution subpoenaed documents from Ray, and in response, correctional officials searched Ray's cell and found documents responsive to the subpoena. Among these documents, they found a letter in which Ray described how he and two other people allegedly transported two female bodies to a farm near LaCygne and placed them in barrels in exchange for drugs. Morrison disclosed the Ray documents 7 months in advance of trial and confirmed that the prosecution had no intention of calling Ray or introducing the documents at trial. Neither party, in fact, called Ray or introduced his documents at trial.Page 88 The court denied the motion for continuance. 5. Robinson's Fourth Motion to Continue Trial On August 30, 2002, nearly 2 weeks before trial, defense counsel filed a motion for continuance or, alternatively, for leave to withdraw, arguing that several discovery problems continued to delay preparations. Defense counsel also claimed to need additional time to develop Robinson's penalty phase defense, explaining they had hired a forensic social worker in January 2002 to conduct an investigation of Robinson's background and social history but learned in late July that the expert had made no progress because of a disabling back injury suffered in a car accident. Defense counsel hired a new mitigation expert, Scarlet Nerad. Although she had already commenced work, defense counsel argued there was insufficient time for her to complete it before trial. Robinson requested an 8-month continuance to complete a social history report and a comprehensive mental evaluation. At the September 5 hearing, Robinson offered Nerad's affidavit under seal, which the district judge reviewed in camera over the State's objection. In the affidavit, Nerad claimed that her preliminary investigation suggested Robinson had endured chronic and life-threatening violence, abandonment, and neglect at the hands of his caretakers. When Robinson was 5 years old, his mother began assaulting him several times a week, without provocation傭eating him severely, threatening to kill him, and telling him she wished he were dead or never born. As a small child, Robinson grew deeply attached to his infant brother. The child fell ill and died, and Robinson's mother blamed him for the death. Robinson was devastated by the loss of his brother and shattered by the false accusations lodged by his mother. As Robinson grew older, the abuse escalated, often leaving him unconscious or bedridden, and his mother isolated him from other family members.Page 89 According to Nerad, such suspected abuse left Robinson vulnerable to psychiatric diseases such as posttraumatic stress disorder (PTSD). In fact, she claimed Robinson met the criteria for PTSD. Nerad also believed Robinson exhibited symptoms of dissociative and mood disorders, evidenced by bouts of psychosis, extreme mood fluctuations, flat affect, and episodes of mania. Nerad's affidavit did not establish her qualifications to diagnose such conditions. Nerad made clear that her findings were preliminary and that she needed to complete substantial additional investigation to verify and document the abuse and its effect on Robinson before she could deliver a completed background and social history report. She said she could not complete it in time for the September trial setting. She also noted that other medical professionals would need her report to complete Robinson's comprehensive mental assessment. The continuance was denied. 6. Request for Continuance at the Outset of the Penalty Phase On September 12, 2002, the defense filed a motion to transport Robinson to the University of Kansas Medical Center (KU Medical Center) for MRI and PET scans. The defense argued the testing was necessary for its expert, Dr. Dorothy O. Lewis, a professor of psychiatry at New York University School of Medicine, to conduct a psychiatric evaluation of Robinson. Defense counsel offered the affidavit of Lewis under seal in support of the motion. Lewis declared that, based on her preliminary review, there was reason to believe Robinson suffered from "a bipolar mood disorder"; he "was severely physically andPage 90 emotionally abused throughout childhood"; "as a result of this maltreatment, he experiences episodic dissociative states"; "as many as four generations of family members may have suffered" similar mental illness; a 1991 MRI revealed brain abnormalities, "allegedly a result of transient ischemic attacks"; and "Robinson . . . cannot appreciate the nature and strength of the evidence" against him. Lewis also said that, in order to make a credible diagnosis, she needed time to complete additional testing and evaluation, including psychiatric interviews; an MRI to assess possible brain changes over time; a PET scan to assess frontal lobe function; a neurologic evaluation; a comprehensive neuropsychological test battery; and a review of Robinson's background and social history. Without such information, Lewis asserted, it would be impossible to render an opinion regarding Robinson's mental functioning. The trial court granted the motion during a September 12 status conference. On October 31, after the jury had convicted Robinson on all charges, defendant moved for continuance of the penalty phase. Appointed counsel explained that they had decided not to have Robinson transported to KU Medical Center for an MRI and PET scan because there was simply insufficient time for experts to complete the testing and evaluation needed to render a qualified opinion regarding Robinson's mental functioning. The court denied the continuance.Constitutional Challenge Robinson argues the district judge refused to continue the trial as punishment or in retaliation for his decision to hire Thomas and discharge the DPDU, violating his right to due process. Although the argument is less than clear from the briefing, Robinson alsoPage 91 appears to suggest the trial court unconstitutionally burdened his Sixth Amendment right to counsel of choice by having him bear the risk that counsel would be unprepared. 1. Legal Framework and Standard of Review Robinson's challenge is founded on the Sixth Amendment right to counsel預 fundamental right guaranteed to all criminal defendants. Kimmelman v. Morrison, 477 U.S. 365, 374, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986). "It is hardly necessary to say that the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice." Powell v. Alabama, 287 U.S. 45, 53, 53 S. Ct. 55, 77 L. Ed. 158 (1932); see State v. Anthony, 257 Kan. 1003 1018, 898 P.2d 1109 (1995) ("An essential element of the Sixth Amendment's protection of the right to counsel is that a defendant must be afforded a reasonable opportunity to secure counsel of his or her choosing."). Not only is a defendant vested with the constitutional right to counsel of choice, but also due process prevents States from punishing or retaliating against a defendant for exercising this constitutional right. Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978) ("To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort."). However, "[n]ot every restriction on counsel's time or opportunity to investigate or to consult with his client or otherwise to prepare for trial violates a defendant's Sixth Amendment right to counsel." Morris v. Slappy, 461 U.S. 1, 11, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983). The Supreme Court has explained:"Trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except forPage 92 compelling reasons. Consequently, broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary 'insistence upon expeditiousness in the face of a justifiable request for delay' violates the right to the assistance of counsel. Ungar v. Sarafite, 376 U.S. 575, 589[, 84 S. Ct. 841, 11 L. Ed. 2d 921] (1964)." Morris, 461 U.S. at 11-12. We have recognized that a defendant's right to counsel of choice "cannot be manipulated to impede the efficient administration of justice." Anthony, 257 Kan. at 1019. Where defendants allege the deprivation of rights under the Constitution, our court reviews such challenges de novo. See State v. Chamberlain, 280 Kan. 241, 255, 120 P.3d 319 (2005) (determination of whether a statute violates the Constitution is a question of law over which we have unlimited de novo review); see also United States v. Hopkins, 509 Fed. Appx. 765, 770 (10th Cir. 2013) (unpublished opinion) (reviewing de novo whether judicial action violated Sixth Amendment right to counsel of choice). 2. The Due Process Challenge Robinson first contends that Judge Anderson's rulings were intended to punish defendant for the delay that resulted when he retained Thomas in place of the DPDU. The argument ignores and is entirely inconsistent with the fact that Judge Anderson accepted Thomas' entry of appearance and subsequently granted him a lengthy continuance. Thomas' filing of his entry of appearance provided Judge Anderson with a direct and immediate opportunity to subvert Robinson's right to counsel of choice. Thomas lacked the experience and resources to handle a capital defense alone, and Judge Anderson could have denied the entry of appearance altogether. See, e.g., United States v. Collins, 920 F.2d 619, 626 (10th Cir. 1990) (district court may deny a defendant'sPage 93 counsel of choice where attorney unable to provide competent representation). Instead, he gave effect to both of Robinson's Sixth Amendment interests葉he right to counsel of choice and the right to competent counsel傭y accepting Thomas' entry of appearance and appointing qualified cocounsel. Once Thomas was granted entry, Judge Anderson had a second opportunity to "punish" Robinson for retaining private counsel by denying his first motion for continuance. Instead, Judge Anderson granted the continuance, providing defense counsel roughly 1 full year to prepare for trial. Robinson makes no mention of these rulings. Instead, he focuses on the district judge's denial of subsequent motions for a second continuance. In these rulings, Judge Anderson mentions that the DPDU handled the case and was on track for a trial setting in early 2002, that Robinson discharged the DPDU by hiring Thomas, that the court appointed qualified cocounsel, and that the result was further delay. Robinson believes these comments evidence Judge Anderson's retaliatory motive. The argument lacks merit. When read in context, it is apparent that Judge Anderson referenced the DPDU and Robinson's decision to hire Thomas, not to blame Robinson for any delay resulting from that decision, but to summarize the sequence and timeline of events, highlight the purpose and scope of the appointment of cocounsel, and emphasize that Thomas and appointed counsel had the benefit of more than a year's worth of the DPDU's work on the case. The district judge's reference to the delay that followed Thomas' entry of appearance and the appointment of cocounsel was an accurate account. It also served to highlight that the district judge had granted a previous, lengthy continuance, a relevant factor in assessing whether defendant has established good cause for a subsequent continuance under K.S.A. 22-3401. See State v. Snodgrass, 252 Kan. 253, 264, 843 P.2d 720 (1992) (trial court did not abuse discretion in denyingPage 94 continuance where a prior continuance had been granted on eve of trial); United States v. Sharrak, 527 Fed. Appx. 383, 388 (6th Cir. 2013) (unpublished opinion) (whether court has granted previous continuances is an appropriate factor in analyzing subsequent motions). In each ruling, after outlining previous relevant events, Judge Anderson addressed the specific grounds asserted for the requested continuance and/or made findings and conclusions as to why defendant had failed to establish good cause. In the end, Judge Anderson denied each request for a second continuance because he believed there was adequate time to prepare the defense, especially considering the resources of the defense team and the fact that a lengthy continuance had been granted previously. The rulings were an appropriate exercise of lawful discretion and cannot be construed as retaliatory. See Anthony, 257 Kan. at 1019-20 (trial court did not abuse discretion or otherwise interfere with counsel of choice where it did not attempt to restrain counsel from entering the case and only declined the request to continue trial to allow new counsel time to prepare). 3. The Sixth Amendment Challenge Robinson next argues the district judge relied on a number of factual errors in denying his motions for continuance. While this argument sounds more akin to an abuse of discretion challenge, Robinson seems to suggest the trial court's alleged factual errors effectively placed an unconstitutional burden on his right to counsel of choice. Specifically, Robinson contends the district judge erred in fact, thereby burdening the right to counsel of choice, by: (1) finding that Robinson had discharged the DPDU; (2) minimizing the burden defense counsel experienced in managing discovery; and (3)Page 95 failing to account for the delay caused by the State's tardy and disorganized DNA testing disclosures. First, Robinson argues the district judge erroneously found that Robinson had discharged the DPDU. In the July 25, 2002 ruling denying defendant's third motion to continue trial, Judge Anderson said, "When Mr. Thomas got in this case, he got in it because the defendant discharged, essentially through hiring Mr. Thomas, the capital defense team and retained an attorney of his own choice." (Emphasis added.) Likewise, in the October 31, 2002, ruling denying defendant's motion to continue the penalty phase, Judge Anderson explained that "in the summer of 2001 Mr. Robinson chose to discharge the capital defense team provided to him by the State of Kansas. . . . and did so by retaining counsel, Mr. Thomas, who undertook to represent him at that time." (Emphasis added.) Judge Anderson's rulings indicate that Robinson effectively discharged the DPDU by retaining Thomas. The record supports this finding. During a July 23, 2001, in-camera proceeding, Judge Anderson discussed the status of defendant's representation in the presence of Robinson, the DPDU, and Thomas. During the proceeding, Judge Anderson confirmed that it was Robinson's desire to remove DPDU counsel and substitute Thomas as counsel in their place. More importantly, whether the trial court characterized the DPDU's exit as a "discharge" or a "withdrawal" is a factual distinction without a legal difference. Judge Anderson did not deny any of defendant's motions based on a finding that the DPDU exited the case as a result of discharge, as opposed to withdrawal. Cf. State v. Nelson, 296 Kan. 692, 694, 294 P.3d 323 (2013) ("Judicial discretion is abused if judicial action . . . is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.").Page 96 Moreover, it is unclear how the characterization of the DPDU's exit as a discharge instead of a withdrawal could or would have placed any additional burden on Robinson's Sixth Amendment right to counsel of choice. Second, Robinson argues Judge Anderson improperly "minimized" testimony regarding the delay created by the number of witnesses endorsed by the State. Judge Anderson addressed this issue specifically in denying the third motion for continuance, finding that Kansas law compelled the prosecution to endorse all potential witnesses regardless of the extent of their knowledge and that the defense team's resources, including four attorneys, an investigator, and six legal interns, were sufficient to overcome the discovery complications and complete preparations in the time allotted for trial. These findings were supported by substantial competent evidence in the record, and we cannot say that no reasonable judge would have agreed with Judge Anderson's ruling. Robinson's real complaint is that Judge Anderson did not assign his evidence the weight he believed it deserved. Such a dispute does not establish grounds for error. See In re Estate of Farr, 214 Kan. 51, 68, 49 P.3d 415 (2002) ("It is the factfinder's function to determine the weight and credibility of the witnesses. Appellate courts will not pass upon the credibility of witnesses or reweigh conflicting evidence."). Finally, Robinson believes Judge Anderson minimized the prejudice occasioned by the State's tardy and disorganized disclosures to defendant's DNA expert. Again, Judge Anderson addressed this issue specifically in denying the third motion for continuance, explaining that any delay the expert experienced did not prevent appointed counsel from continuing to work on other aspects of Robinson's defense. On appeal, Robinson admits the expert's delay did not impede counsel's ability to prepare for trial but argues it prevented the defense from completing an independent DNA analysis.Page 97 We find the argument unavailing. The defense team did not pursue independent testing until after the State completed and disclosed its DNA lab reports. Thereafter, much of the delay Stettler experienced was the result of his decisions on time management. We have found no error in the denial of continuance under similar circumstances. See State v. Lewis, 299 Kan. 828, 846-48, 326 P.3d 387 (2014); Snodgrass, 252 Kan. at 264. Moreover, during the July 25 evidentiary hearing, Stettler admitted he could complete his work and advise the defense within 3 to 4 weeks様eaving adequate time before trial. On September 5, defense counsel informed Judge Anderson that samples had been sent to a lab for independent analysis, but the results of that testing were never introduced at trial or included in the record on appeal. Thus the district judge had no basis upon which to make a finding of good cause warranting a continuance. See State v. Daigle, 220 Kan. 639, 643-44, 556 P.2d 400 (1976) (affirming denial of continuance where defendant failed to show relief would result in favorable evidence from a completed fracture analysis), cert. denied 430 U.S. 983 (1977); see also Coy v. Renico, 414 F. Supp. 2d 744, 777 (E.D. Mich. 2006) (continuance properly denied where petitioner failed to show independent DNA testing would yield exculpatory evidence). Nothing in the record supports Robinson's claim that discovery complications foreclosed independent DNA testing or use of the results of such testing at trial. In fact, the evidence strongly suggests otherwise. In the end, we hold that the denial of continuance did not violate Robinson's due process or Sixth Amendment rights.Page 98 Statutory Challenge In addition to his constitutional challenges, Robinson argues the trial court abused its discretion in denying his requests for continuance. For purposes of clarity, the challenge is divided into two subissues: (1) whether the trial court abused its discretion in denying a continuance to allow counsel additional time to prepare the guilt phase defense; and (2) whether the trial court abused its discretion in denying a continuance to allow counsel additional time to prepare the penalty phase defense. 1. Legal Framework and Standard of Review K.S.A. 22-3401 provides that "[c]ontinuances may be granted to either party for good cause shown." "In a criminal case, the decision to continue a case lies within the sound discretion of the district court." State v. Haney, 299 Kan. 256, 259, 323 P.3d 164 (2014). Thus, we review a denial of continuance for abuse of discretion. State v. Burnett, 300 Kan. 419, 436, 329 P.3d 1169 (2014). Judicial discretion is abused where judicial action is arbitrary, or based on an error of law or fact. State v. Warrior, 294 Kan. 484, 505, 277 P.3d 1111 (2012). The party asserting abuse of judicial discretion has the burden to prove an abuse of discretion on appeal. State v. Smith-Parker, 301 Kan. 132, 161, 340 P.3d 485 (2014). Additionally, where a defendant claims the denial of continuance interfered with his or her ability to present a defense, we review the question de novo. Lewis, 299 Kan. at 846. The legal standard for granting a continuance is "good cause" shown. K.S.A. 22-3401; State v. Carter, 284 Kan. 312, 318, 160 P.3d 457 (2007). However, where a continuance is sought to retain new counsel, we consider the following five factors:"(1) whether a continuance would inconvenience witnesses, the court, counsel, or the parties; (2) whether other continuances have been granted; (3) whether legitimate reasonsPage 99 exist for the delay; (4) whether the delay is the fault of the defendant; and (5) whether denial of a continuance would prejudice the defendant." Anthony, 257 Kan. at 1019.Robinson argues the Anthony factors should apply to his challenge. However, Anthony applies in situations where defendant seeks a continuance for the purpose of retaining new counsel, thereby placing the defendant's Sixth Amendment right to counsel of choice in competition with the court's discretionary power to deny continuances. 257 Kan. at 1019. At the time the court denied the defendant's second continuance motion, appointed counsel, Berrigan and O'Brien, had served as counsel to Robinson for nearly 7 months. Robinson never requested or retained new counsel after Thomas' discharge, and appointed counsel represented him throughout both phases of trial. As such, Robinson's Sixth Amendment right to counsel of choice was never implicated and Anthony's five-factor test does not apply. See State v. Ly, 277 Kan. 386, 391, 85 P.3d 1200 (five-factor test did not apply where defendant "did not request a continuance so he could retain new counsel"), cert. denied 541 U.S. 1090 (2004). 2. Continuance to Provide Additional Time to Prepare Guilt Phase Robinson argues the trial court erred in denying his requests for a second continuance in the face of evidence establishing: (1) the division-of-labor agreement, whereby retained counsel, Thomas, was to prepare the guilt phase defense and appointed counsel, Berrigan and O'Brien, the penalty phase defense; (2) the unexpected discharge or withdrawal of Thomas; and (3) the impact of Thomas' withdrawal on trial preparations. The record includes competing evidence regarding the propriety of a continuance notwithstanding Robinson's arguments. Although defense counsel took it upon themselves to divide the labor, Judge Anderson was unaware of this decision. His orders appointing counsel specified that Berrigan and O'Brien were to represent defendant at trial and through sentencing. Judge Anderson found the division-of-labor agreementPage 100 frustrated the purpose of his orders. Also, as Judge Anderson explained, conflicts and other matters giving rise to the withdrawal of counsel are not unforeseeable, casting further doubt on the reasonableness of defense counsels' reliance on this division of labor. There is also reason to question how strictly counsel adhered to the arrangement. Soon after their appointment, Berrigan and O'Brien signed pleadings and motions, played a leading role at motions hearings and status conferences, and handled the examination of witnesses and argument at the January 2002 evidentiary hearing on the venue motion. All of these events were part of the guilt phase of the case. The record also provides direct support for Judge Anderson's findings and conclusions. While Thomas' withdrawal certainly increased appointed counsel's workload and responsibility, they were not starting from scratch. Berrigan and O'Brien had served as counsel to Robinson for roughly 7 months prior to Thomas' withdrawal, and they had another 7 months to prepare thereafter, thanks to Judge Anderson's order granting Robinson's first continuance motion. Appointed counsel also had the benefit of the preparation Thomas and the DPDU had done over the course of nearly 2 years. After Thomas' withdrawal, O'Brien's associate attorney Luby entered his appearance for the defense, and Robinson never sought appointment of new counsel. We have not previously reviewed the denial of a continuance under the particular facts presented here. Even so, Anthony provides some useful parallels under similar facts. There, defendant moved for a 2-month continuance 18 days before trial so that defendant's counsel of choice, Charles Atwell, could have adequate time to become involved in the case and prepare for trial. Atwell informed the court he could not accept appointment without a continuance. Defendant had already received a previous continuance. The trial court granted defendant leave to substitute Atwell as counsel but denied the continuance. We found no abuse of discretion in the ruling. 257 Kan. at 1019-20.Page 101 Authority from other jurisdictions lends more direct support for Judge Anderson's rulings. See United States v. Messervey, 317 F.3d 457, 462 (5th Cir. 2002) (no error in denying 4-month continuance after withdrawal; court had granted previous continuances giving counsel a full year to prepare and new counsel benefitted from predecessor's preparation); People v. Johnson, 205 Ill. 2d 381, 406-07, 275 Ill. Dec. 820, 793 N.E.2d 591 (2002) (no error in denial of continuance to allow counsel additional time to prepare defense in capital murder prosecution where trial court had granted previous continuances totaling 55 days and public defender already had prepared for 3 months); Flinn v. State, 563 N.E.2d 536, 543 (Ind. 1990) (no error in denial of continuance to give new counsel more preparation time; new counsel had benefit of predecessor's 16 months of preparation); State v. Sanders, 92 Ohio St. 3d 245, 276, 750 N.E.2d 90 (2001) (no error in denial of continuance to allow new lead counsel time to prepare defense in capital murder prosecution; newly appointed counsel had 2 full months to prepare and cocounsel had been on the case for 15 months); State v. Hester, 324 S.W.3d 1, 35-36 (Tenn. 2010) (no error in denial of continuance in capital murder case where one of defendant's two lawyers withdrew; remaining attorney had served as lead counsel for almost 3 years; case had encountered lengthy delays). In light of the record here, we conclude a reasonable factfinder could have agreed with Judge Anderson's rulings. Therefore, we hold that the district judge properly exercised his lawful discretion by refusing requests for a second continuance to prepare the guilt phase defense. 3. Continuance to Provide Additional Time to Prepare Penalty Phase Robinson also contends he was entitled to a continuance so counsel could fully develop his mitigation defense.Page 102 The problem with Robinson's challenge is he failed to make an adequate proffer as to what mitigation evidence would have been developed had Judge Anderson granted a second continuance. We discussed the movant's duty to make such a proffer in Burnett, 300 Kan. 419, where defendant requested a continuance in order to prepare a redacted and admissible version of the videotaped recording of his police interview. Defendant argued the district court's refusal to grant a continuance denied him a defense at trial because without the video recording, he was unable to impeach law enforcement testimony regarding the interview. However, defendant did not specify "how [law enforcement officer's] testimony was inconsistent with the statements recorded on the video or even explain how [law enforcement officer's] testimony could have been impeached by the video." 300 Kan. at 438. We held that "[w]ithout specific references to how the video would have bolstered his defense or impeached [law enforcement officer's] testimony, Burnett ha[d] failed to show that 'good cause' supported his request for a continuance to prepare a redacted version of the video." 300 Kan. at 438. The same principle holds true in the context of sentencing. In State v. Beaman, 295 Kan. 853, 286 P.3d 876 (2012), defendant sought a sentencing continuance to research an Eighth Amendment argument under Jessica's Law that might have applied at sentencing. In affirming the denial of continuance, we explained: "[S]imply arguing that there 'may' be an issue worthy of another motion is insufficient to justify a continuance. Mere speculation that with more time something favorable may happen for the defendant does not constitute good cause. [Citation omitted.]" 295 Kan. at 864. We thus conclude it would be unacceptably speculative to presume their preliminary findings would be consistent with those produced in a final analysis. Here, Robinson offered the affidavits of Nerad and Lewis in support of their motions for continuance to develop mitigation evidence. Both speculated, based on their initialPage 103 reviews, that Robinson may have suffered abuse as a child and impairment to his mental functioning. Nevertheless, these findings were preliminary. Both Nerad and Lewis made clear that they could not render qualified and reliable opinions on the subjects absent further investigation. Defense counsel implicitly acknowledged the unreliability of these experts' preliminary findings during posttrial argument, explaining the defense did not call Nerad or Lewis as witnesses because a "half-baked" mitigation defense would have been worse than no defense at all. Counsel conceded at oral argument that defendant failed to make a proffer of the evidence that would have been introduced in the event of a continuance. We cannot find fault in Judge Anderson's decisions in the absence of such a showing. See People v. Doolin, 45 Cal. 4th 390, 451, 87 Cal. Rptr. 3d 209, 198 P.3d 11 (2009) (trial court did not err in denying penalty phase continuance to allow defendant to develop childhood abuse issues; defendant "made no showing that he could produce specific, relevant mitigating evidence within a reasonable time"); People v. Jenkins, 22 Cal. 4th 900 1038, 95 Cal. Rptr. 2d 377, 997 P.2d 1044 (2000) (court within its discretion to refuse continuance to allow penalty phase consultant time to undertake investigation of character and background where defendant did not demonstrate it would produce specific relevant mitigation evidence); People v. Chapman, 194 Ill. 2d 186, 241-42, 743 N.E.2d 48 (2000) (trial court did not abuse discretion in denying 60-day continuance 3 weeks before trial to allow penalty phase expert to develop mitigation case where previous continuance had been granted and defendant failed to show how expert testimony would have added to the mitigation evidence); State v. Rimmer, 250 S.W.3d 12, 41 (Tenn. 2008) (no error in denying continuance to allow expert to develop mitigation evidence where defendant failed to show what, if any, mitigation evidence would have been uncovered had continuance been granted).Page 104 Robinson, relying on Haney, 299 Kan. 256, suggests the mere possibility that a continuance might yield fruitful mitigation evidence establishes good cause for relief. In Haney, defendant negotiated an opportunity to pursue a durational sentencing departure in exchange for his nolo contendere plea to various sex offenses. Prior to sentencing, defendant sought a 1-month continuance to compensate for delays in funding for a sex offender evaluation expert. The trial court denied the motion, erroneously finding that such an evaluation was not relevant and that defendant could testify to the aberrational nature of his crimes without expert testimony. The Court of Appeals held that the district court abused its discretion but found the error harmless because defendant did not offer any evidence in support of the durational departure. We reversed, unable to "declare that the lost opportunity to present evidence in mitigation of punishment was harmless in this case." 299 Kan. at 262. Robinson's reliance on Haney is misplaced. There, the district court's denial of continuance was founded on legally erroneous findings, and the Court of Appeal's declaration that the error was harmless would have deprived defendant of the very benefit that induced him to enter his plea agreement葉he opportunity to pursue a durational departure. No such facts are present here, and Haney does not alter Robinson's duty to make a proffer of the mitigation evidence he would have developed and presented had he been granted a continuance.3. MOTIONS TO SUPPRESS Defendant raises five issues related to the district court's denial of his motions to suppress evidence obtained pursuant to pen registers, wiretaps, search warrants, and warrantless trash searches. Specifically, Robinson contends: (1) District Judge Larry McClain was not neutral and detached; (2) he lacked jurisdiction to issue extraterritorial search warrants; (3) law enforcement officers exceeded their territorial jurisdiction; (4)Page 105 law enforcement officers' trash searches violated defendant's reasonable expectation of privacy; and (5) wiretap orders were issued without a sufficient showing of necessity.Additional Factual and Procedural Background 1. Judge McClain's Former Prosecution of Robinson In the mid-1980s, McClain was a prosecutor in the Johnson County District Attorney's office. In 1984, he investigated a consumer complaint filed by the owners of Back Care Systems, International (Back Care), alleging Robinson defrauded Back Care through a bogus invoicing scheme through his company, Equi-plus. In hopes of avoiding criminal prosecution, Robinson prepared four sham affidavits, all purportedly authored by vendors claiming the invoices were genuine. One affidavit appeared to be signed by Paula Godfrey, one of several missing persons connected to Robinson. After reviewing the affidavits, McClain told Robinson's attorney, Ronald Wood, that Robinson was the "master of the copying machine." On March 29, 1985, McClain filed a criminal complaint, along with a supporting affidavit, charging Robinson with one count of felony theft by deception. McClain handled the Back Care case through preliminary hearing on May 29, 1985. On June 10, McClain was appointed to the District Court bench in Johnson County. Steven J. Obermeier assumed the prosecution of the Back Care case from that point forward. Obermeier endorsed Godfrey as a witness because she had purportedly signed one of the sham affidavits. At the time, Obermeier did not know Robinson was a suspect in Godfrey's disappearance. Obermeier tried the Back Care case in January 1986. The State called Judge McClain as a witness to establish that the affidavits were shams and to lay foundation toPage 106 admit them into evidence. The trial judge, however, limited Judge McClain's testimony to foundation issues only, and Judge McClain did not testify beyond that boundary. The jury convicted Robinson on the theft by deception count. Just after Robinson's conviction, Obermeier prosecuted a second case against him, the Kuti case, which arose from a phony land deal Robinson concocted to defraud investors. Judge McClain was endorsed as a witness in the Kuti case because Obermeier believed Robinson's failure to disclose the Back Care prosecution constituted a material omission, an essential element of the securities fraud count pled in that case. Judge McClain had no other involvement in the prosecution of the Kuti case. Robinson entered a plea agreement in the Kuti case, and the trial judge joined the Back Care and Kuti cases for purposes of sentencing. In his sentencing brief, Obermeier made reference to the fact that Robinson was the last person seen with Stasi before her disappearance, but Obermeier had not received this information from Judge McClain. In September 1987, when Robinson first became eligible, Obermeier filed a recommendation to deny parole. Obermeier attached then-prosecutor McClain's affidavit from the Back Care case in support of the recommendation. Judge McClain had no involvement in preparing Obermeier's recommendation. At the suppression hearing, the parties stipulated that (1) during his tenure with the District Attorney's office, McClain had no knowledge that Robinson was a suspect in any homicides or abductions; (2) upon assuming the bench in June 1985, Judge McClain exclusively handled a civil docket, with the exception of presiding over various applications for search warrants, wiretaps, and pen registers; and (3) once appointed, Judge McClain disengaged from all law enforcement-related activities.Page 107 2. Prosecution's Pursuit of Inquisition, Pen Registers, and Wiretaps The Johnson County District Attorney's office regularly submitted wiretap and pen register applications to an administrative or civil judge. After the retirement of the civil judge who had historically handled these matters, Judge McClain began receiving the applications because he was a civil judge who had familiarity with criminal law. On March 30, 2000, prosecutor Morrison approached Judge McClain and secured an order to open an inquisition. Although it was unusual to approach a civil judge for an inquisition, Morrison felt there was a strong possibility he would later request pen registers and wiretaps, so he wanted to begin proceedings with the wiretap judge. In April 2000, the prosecution secured orders from Judge McClain for pen registers on Robinson's phones. On May 19, the prosecution submitted a wiretap application to Judge McClain. Lenexa Police Detective Dave Brown offered a 31-page supporting affidavit containing hundreds of averments set forth in 78 separate paragraphs. The affidavit detailed law enforcement's extensive investigation of Robinson and described facts uncovered through the use of a variety of traditional investigatory techniques, including surveillance of witnesses and the defendant, warrantless trash searches, consensual searches, investigatory interviews, inquisitional subpoenas, and analysis of pen register data. Specifically, the affidavit outlined Robinson's relationship with Trouten, his likely involvement in her recent disappearance, and his attempts to conceal the same. It identified facts suggesting Robinson had targeted new potential victims in the BDS&MPage 108 community, including Trouten's friends, Remington and Taylor, as well as J.M. and V.N. It also summarized law enforcement's analysis of pen register data and inquisition subpoenas, which demonstrated that Robinson was dependent on cellular and telephone communications to develop these relationships and further his criminal conduct. The affidavit also touched on a few facts that were similar or common to both the Back Care case and the Robinson investigation. First, Brown made a passing reference to Robinson's convictions in the Back Care and Kuti cases, the former of which Judge McClain handled through the preliminary hearing. Brown also made brief reference to two companies connected to Robinson, Equi II and Equruz II, that utilized a name similar to Equi-plus, Robinson's company implicated in the Back Care case. Finally, the affidavit included averments describing Robinson's connection to and possible involvement in the disappearance of Paula Godfrey, who allegedly signed one of the sham affidavits in the Back Care case. When prosecutors Morrison and Sara Welch, along with Brown, approached Judge McClain for the wiretap, the judge said he had prosecuted Robinson in a financial crimes case in the early to mid-1980s. Morrison testified that Judge McClain said something to the effect that he "knew the defendant as a, quote, con man or, quote, shyster," but characterized his comments as very brief and benign. Brown testified that Judge McClain said only that he had prosecuted Robinson for some financial crimes in the past. Judge McClain did not discuss any specific details about the Back Care case, the witnesses involved, or any other criminal complaints against Robinson. 3. Search Warrants As the investigation progressed, prosecutors approached Judge McClain for search warrants. On June 2, 2000, law enforcement officers secured warrants to searchPage 109 Robinson's Olathe residence and storage locker. The following morning, prosecutors secured a warrant to search Robinson's Linn County property. The application to search the Linn County property was supported by Brown's affidavit, which contained dozens of averments set forth in 35 separate paragraphs covering 10 single-spaced pages. The affidavits for all three search warrants were nearly identical. The first 20 paragraphs described Robinson's connection to Trouten, her disappearance, and Robinson's probable involvement in it. In paragraphs 21-30, Brown explained how Robinson had targeted new women in the BDS&M community. The affidavit also included averments establishing probable cause that evidence of Robinson's crimes would be found at each location. As with the wiretap affidavit, Brown made reference to Robinson's prior convictions in the Back Care and Kuti cases, identified businesses tied to Robinson that used a name similar to Equi-plus, and disclosed Robinson's possible connection to the disappearance of Godfrey. On June 2, 2000, Lenexa police officials contacted Linn County Sheriff Marvin Stites to discuss plans for executing a search warrant for Robinson's Linn County property. After securing the warrant, Linn County Sheriff's Deputy Kevin Danciak arrived at Robinson's Linn County property around 9:30 a.m., just as officers from Lenexa and Overland Park were arriving. Danciak reviewed and executed a written request for assistance document drafted by Lenexa police. The document memorialized Linn County's request to Lenexa and other agencies for assistance in executing the search warrant. Law enforcement officers began the search after Danciak signed the document.Page 110 4. Warrantless Searches of Robinson's Trash Before obtaining search warrants, law enforcement officers employed a variety of investigatory techniques, including searching Robinson's trash placed outside for collection at his Olathe residence. Lenexa Police Detective Michael Bussell drove by Robinson's residence 50 to 60 times from March to June 2000, exploring the location, developing strategies for collecting Robinson's trash, and coordinating trash pulls on collection days. Lenexa police did not disclose their activities to Olathe police. Robinson lived inside Santa Barbara Estates, a private mobile home community that maintained its own streets, sidewalks, and lighting. A private trash company, Deffenbaugh, regularly entered the community to collect residents' trash. At the community's main entrance, there was a "Santa Barbara Estates" sign on the south side of the road. Several yards beyond this sign, there was a "Speed Limit 20" sign. Just below the speed limit sign, affixed to the same post, was a smaller sign captioned, "Private Property No Soliciting." There were no "no trespassing" signs posted within the community. Santa Barbara Estates was not a gated community, and there was no physical barrier impeding access into the area. Only transporters hauling mobile homes into or out of the community were required to check in before entering. If a person wanted to visit a resident, he or she was free to drive into the community, walk up to a resident's home, and knock on the resident's door. Olathe police freely entered the community to execute warrants and handle other police business. Robinson's residence was located 1/4 to 1/2 mile beyond the entrance to Santa Barbara Estates. The residence could not be seen, or views of it were limited, from any street outside Santa Barbara Estates.Page 111 Each time a law enforcement officer pulled Robinson's trash, it had been set out for collection in a container placed toward the end of an asphalt parking area, near or against the curb line, where the parking pad intersected the roadway, approximately 10 to 12 feet outside of the fence that surrounded the residence. When Bussell saw the trash container placed in this location, he would radio another officer to collect it from the container. However, on other occasions, a law enforcement officer, after making arrangements with a security officer at Deffenbaugh, would ride on the trash truck and collect the trash directly or would supervise Deffenbaugh's collection and arrange to pick it up at a location away from Santa Barbara Estates.Neutral and Detached Magistrate Challenge Robinson argues the evidence seized pursuant to, or as a result of, the four pen registers, one wiretap order, and four search warrants Judge McClain issued in this case should have been suppressed because he was not a neutral and detached magistrate. 1. Legal Framework and Standard of Review Our standard of review for motions to suppress evidence is well established:"An appellate court reviews a district court's decision on a motion to suppress using a bifurcated standard. Without reweighing the evidence, the district court's findings of fact are reviewed to determine whether they are supported by substantial competent evidence. A de novo standard of review is then used to review the ultimate legal conclusion regarding the suppression of evidence." State v. Garza, 295 Kan. 326, 330-31, 286 P.3d 554 (2012). The Fourth Amendment to the United States Constitution, along with Section 15 of the Kansas Constitution Bill of Rights protects individuals against unreasonablePage 112 government searches and seizures. See State v. Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010) (Section 15 of the Kansas Constitution Bill of Rights provides "the same protection from unlawful government searches and seizures as the Fourth Amendment to the federal Constitution."), cert. denied 131 S. Ct. 2114 (2011). While not expressly contained in the text of the amendment, the United States Supreme Court first recognized a neutral and detached magistrate requirement in Johnson v. United States, 333 U.S. 10, 13-14, 68 S. Ct. 367, 92 L. Ed. 436 (1948) ("The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."). Since Johnson, the neutral and detached magistrate requirement has evolved into a firmly established cornerstone of Fourth Amendment law. State v. Fremont, 749 N.W.2d 234, 237-38 (Iowa 2008). Throughout the judicial refinement of the doctrine, the Supreme Court has recognized at least two circumstances in which a magistrate fails to satisfy the neutral and detached requirement. First, a magistrate involved in or who exercises law enforcement powers of the executive branch lacks neutrality and detachment. "Whatever else neutrality and detachment might entail, it is clear that they require severance and disengagement from activities of law enforcement." Shadwick v. City of Tampa, 407 U.S. 345, 350, 92 S. Ct. 2119, 32 L. Ed. 2d 783 (1972). Second, a magistrate with a direct pecuniary interest in the outcome of the warrant proceedings also lacks neutrality and detachment. Connally v. Georgia, 429 U.S. 245, 250-51, 97 S. Ct. 546, 50 L. Ed. 2d 444 (1977). Connally expanded the scope of the neutral and detached magistrate requirement beyond separation of powers principles and into the realm of judicial bias, i.e., directPage 113 pecuniary interests, by applying due process principles to the Fourth Amendment analysis. Specifically, Connally adopted the due process test articulated in Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927), and Ward v. Village of Monroeville, 409 U.S. 57, 93 S. Ct. 80, 34 L. Ed. 2d 267 (1972). 429 U.S. at 247-50. Thus a magistrate lacks neutrality and detachment where the circumstances offer "'a possible temptation to the average man [or woman] as a judge . . . or which might lead him [or her] not to hold the balance nice, clear and true between the State and the accused.'" 429 U.S. at 250. In applying this standard, we conduct an individualized and contextual inquiry in light of the totality of the circumstances. See United States v. Bowling, 619 F.3d 1175, 1186 (10th Cir. 2010). Robinson argues the court should apply an "appearance of bias" standard, borrowed from recusal statutes and judicial codes of conduct. While judicial bias and recusal precedent may inform the Fourth Amendment analysis, the appearance of bias standard is inconsistent with the objective test employed by the Supreme Court. See United States v. Heffington, 952 F.2d 275, 279-80 (9th Cir. 1991) (urging caution in the application of an appearance of partiality standard to Fourth Amendment neutral and detached magistrate challenges); State v. McCann, 391 N.J. Super. 542, 554, 919 A.2d 136 (2007) (mere appearance of bias alone is insufficient, objectively reasonable partiality must be established); O'Connor v. Madera County Superior Court, 76 Cal. Rptr. 2d 138, 148 (1998) (appearance of partiality, "without more, is not enough to render [magistrate] constitutionally disqualified to act or to implicate the exclusionary rule under the Fourth Amendment"), rev. denied and ordered not officially published 65 Cal. App. 4th 113 (October 14, 1998). It is also inconsistent with the standard we have applied to due process challenges founded on allegations of judicial bias. See State v. Hurd, 298 Kan. 555, 570, 316 P.3d 696 (2013) ("Recusal is required under the Fourteenth Amendment's Due Process Clause when the judge is actually biased or there is aPage 114 constitutionally intolerable probability of actual bias. [Citation omitted.]"); State v. Sawyer, 297 Kan. 902, 909-10, 305 P.3d 608 (2013) (same). 2. Did Judge McClain lack neutrality and detachment? In ruling on Robinson's challenge, the district judge found:"In this case, McClain investigated Robinson and filed criminal charges against him for theft on March 29, 1985 in what was referred to at the hearing as the Back Care case (Case No. K48573). As Chief Deputy to the District Attorney at the time, McClain assigned himself the case and handled the matter through the preliminary hearing. Shortly after the preliminary hearing, on June 10, 1985, McClain was appointed to the bench. Another prosecutor, Assistant District Attorney Steve Obermeier, took over the case and tried it in Judge McClain's stead. Judge McClain was later called as a witness in the Back Care case to testify as to the delivery of certain affidavits to him from Ron Wood and at the behest of Robinson. A review of the transcripts of those earlier proceedings indicates that McClain was nothing more than a foundation witness to show the chain of custody for the documents in question. McClain testified as to the delivery of the documents only. It was Obermeier that obtained that conviction, handled the sentencing of defendant, opposed defendant's parole, and later filed the charges against Robinson in the Kuti case (Case No. K51711). The parties have stipulated that Judge McClain 'had no knowledge whatsoever concerning the defendant's suspected involvement in any homicides or abductions' and that 'since assuming the bench in June of 1985, Judge McClain has handled a civil docket exclusively and has disengaged from any law enforcement related activities, other than presiding over various applications for search warrants, wiretaps, and pen registers.'" The district judge's factual findings are supported by substantial competent evidence, and Robinson does not challenge them on appeal. Thus our analysis focuses on Judge Anderson's legal conclusion that Judge McClain was neutral and detached.Page 115 We have not previously addressed a neutral and detached magistrate challenge under these particular facts. But see generally State v. Schoonover, 281 Kan. 453, 517, 133 P.3d 48 (2006) ("'The requirement that a warrant must be issued by a neutral and detached magistrate does not equate to a constitutional mandate requiring that a judge have no contact with or knowledge of the case or the defendant.'") Nor has the Supreme Court decided whether a magistrate's former prosecution of a defendant violates the neutral and detached magistrate requirement. As such, we turn to other persuasive authority for guidance. The Fifth Circuit Court of Appeals issued the seminal decision on "magistrate-as-former-prosecutor" challenges in United States v. Outler, 659 F.2d 1306 (5th Cir. 1981). In Outler, the magistrate, who had prosecuted defendant for prescribing scheduled drugs without a license 3 years prior, issued a warrant in his capacity as a judicial officer to search defendant's medical office in a later investigation of defendant's practice. The search warrant was "based on information gathered exclusively during the second investigation." 659 F.2d at 1312. The Fifth Circuit found no Fourth Amendment violation, reasoning the search warrant contained sufficient evidence to indicate probable cause and the details therein were independent of the events involved in the magistrate's former prosecution of the defendant. 659 F.2d at 1312. The Eighth Circuit Court of Appeals rejected a similar challenge in United States v. DeLuna, 763 F.2d 897 (8th Cir. 1985), where jointly charged codefendants argued the issuing magistrate's former prosecution of certain defendants violated the neutral and detached magistrate requirement. The Eighth Circuit rejected the challenge because the evidence failed to demonstrate that the current investigation was related to the matter handled previously by the magistrate or that the magistrate was still employed as a prosecutor at the time the current investigation began. 763 F.2d at 908.Page 116 More recently, the Tenth Circuit Court of Appeals reached the same holding in United States v. Freerksen, 457 Fed. Appx. 769 (10th Cir.) (unpublished opinion), cert. denied 132 S. Ct. 2788 (2012). There, defendant was convicted of five counts of producing child pornography after law enforcement executed a search warrant uncovering digital images depicting the sexual abuse of an 11-year-old child. The search warrants were issued by Special District Judge Don Work. Prior to his appointment to the bench, Judge Work was an assistant district attorney. In that capacity, he prosecuted defendant for assault and battery in 2007 and for lewd molestation in 2008. Work had also sought to accelerate a deferred sentence defendant received in a 2005 case for child stealing. The Tenth Circuit held that Judge Work's former prosecution of defendant on cases involving sex crimes and abuse of children, which were unrelated to the incident giving rise to the pending child pornography investigation, failed to demonstrate a violation of the Fourth Amendment's neutral and detached magistrate requirement. 457 Fed. Appx. at 772; see United States v. Waters, 786 F. Supp. 1111, 1117 (N.D.N.Y. 1992) ("Absent concrete evidence that [the magistrate judge] was involved in his prior capacity as Assistant United States Attorney in an investigation of defendant as an open criminal file to which he was assigned, there is no basis upon which to invalidate the . . . search warrant. [Citation omitted.]"; cf. United States v. Harris, 566 F.3d 422, 434 (5th Cir. 2009) (finding "no reason to question the neutrality and detachment of a magistrate who happened to have represented the defendant in an unrelated criminal matter 6 years prior"); Heffington, 952 F.2d at 279-80 (magistrate's prior representation of defendant in previous drug case was not the same matter at issue when warrants issued); Bowling, 619 F.3d at 1186 (magistrate who represented bank in adversarial proceedings against defendant 10 years before the warrant application did not violate neutral and detached requirement). Robinson suggests these decisions stand for the proposition that a magistrate lacks neutrality and detachment where any facts between the former prosecution and currentPage 117 investigation overlap. He then argues Detective Brown's supporting affidavits disclosed three overlapping or common facts between the Back Care case and the capital murder investigation, including reference to Robinson's conviction in the Back Care case, his possible involvement in the disappearance of Paula Godfrey, and businesses tied to Robinson that used a name similar to Equi-plus. However, a careful review of Outler, DeLuna, and other "magistrate-as-former-prosecutor" cases reveals the pivotal question is not whether there are any facts common between the two cases, but instead whether they arose from a common investigation or single transaction or event. Outler, 659 F.2d at 1312 (affidavit established probable cause and significant facts in affidavit, such as agents, dates, and drugs in question, were wholly independent of the events at issue in the prior prosecution); cf. Del Vecchio v. Illinois Dept. of Corrections, 31 F.3d 1363, 1375 (7th Cir. 1994) (en banc) (recusal not required in a murder trial where judge had prosecuted defendant 14 years earlier on a different murder charge); In re K.E.M., 89 S.W.3d 814, 826 (Tex. App. 2002) (judge is not disqualified by mere fact that he personally prosecuted defendant for past crimes). The judge's former prosecution of Robinson and the current capital murder investigation most certainly did not arise from a common investigation or single transaction or event. Then-prosecutor McClain investigated and prosecuted Robinson on a theft by deception charge related to his fraudulent invoicing practices that defrauded the owners of Back Care. In stark contrast, this case involved the investigation and prosecution of Robinson 15 years later for kidnapping, sexual battery, and the murders of six female victims. Robinson does not dispute that the averments in the supporting affidavits established probable cause for issuance of the pen registers, wiretap orders, and search warrants; and none of the allegedly overlapping facts in the affidavits were material toPage 118 Judge McClain's probable cause determinations. The most significant overlapping fact was the affidavits' brief reference to Robinson's convictions in the Back Care and Kuti cases. Detective Brown testified that he referenced these cases to bolster other averments describing Robinson's attempts to conceal his crimes by fabricating letters on behalf of the victims. The element of fraudulent concealment may have been common to both the Back Care case and the capital murder investigation, but, as Judge Anderson found, the fact that a perpetrator took steps to cover up the crimes is a fact common to most all criminal cases. Amongst the dozens of averments in the affidavits, the isolated reference to the Back Care case bore little weight in the overall assessment of probable cause. The other allegedly overlapping facts are even more benign. It is unclear how Godfrey's signature on a sham affidavit in a financial crimes prosecution would adversely influence Judge McClain's probable cause assessment in this capital murder investigation. The same holds true for the fleeting references to Robinson's companies using the Equi title. Robinson relies on Sincavage v. Superior Court, 42 Cal. App. 4th 224, 49 Cal. Rptr. 2d 615 (1996), and Goines v. State, 708 So. 2d 656 (Fla. Dist. App. 1998), in support of his challenge. Both cases involved a judge who formerly prosecuted and secured convictions against the defendant, and these convictions were or could have been relevant to the enhancements sought at a current sentencing. In this regard, the judge's former prosecution and the enhancements sought at sentencing arose from the same acts or transactions. Thus the authority is distinguishable. To the extent facts or circumstances were common to both cases here, they were not sufficient to cause a reasonable person to question Judge McClain's ability to fairly assess the probable cause issue in the various applications for pen registers, wiretap orders, and search warrants. See Schoonover, 281 Kan. at 517; see also DeLuna, 763 F.2dPage 119 at 908 (magistrate's knowledge from prior investigation of defendant would not cause a reasonable person to believe he was unable to impartially assess the existence of probable cause); People v. Curkendall, 12 A.D.3d 710, 714, 783 N.Y.S.2d 707 (no merit in claim that judge's former prosecution of defendant 14 years earlier on similar offense violated due process), leave to appeal denied 4 N.Y.3d 743 (2004). In addition to Judge McClain's former prosecution of defendant in the Back Care case, Robinson contends that the magistrate's stray comments evidenced his lack of neutrality and detachment. Specifically, Robinson highlights McClain's comment that Robinson was a "master of the copying machine" and that he knew defendant as a "con man or shyster." The first comment was made to Robinson's defense counsel in the Back Care case more than 15 years before Judge McClain issued the pen registers, wiretap orders, and search warrants in this case and before he was appointed to the bench. The comment was also reasonably grounded in fact, as Robinson had provided fraudulent affidavits in hopes of avoiding prosecution. The comment does not evidence a lack of neutrality and detachment. The "con man or shyster" comment is more troubling when viewed in isolation. However, Judge McClain made this comment while disclosing his previous investigation and prosecution of Robinson in a financial crimes case. Viewed in context, Judge McClain's comment appears to be an inartful description of the nature of the crimes he prosecuted rather than a pejorative statement regarding Robinson's character. The parties stipulated that Judge McClain had completely disengaged from law enforcement upon taking the bench in 1985, had had no involvement in any subsequent investigation or prosecution of Robinson, and had no knowledge of Robinson's possiblePage 120 involvement in other missing persons' investigations. Nothing in the record suggests Judge McClain considered any information outside the four corners of the applications and supporting affidavits, in this case, which provided ample independent support for his probable cause determinations. The comments highlighted by Robinson fail to establish a violation of the neutral and detached magistrate requirement. See Hurd, 298 Kan. at 571 (trial judge comments that defendant was "'a violent man,'" the "'best place for [him] is in prison,'" and that he showed a "'complete inability to . . . follow the rules'" did not establish due process violation when made in reference to his extensive criminal history); Schoonover, 281 Kan. at 516-17 (magistrate who formerly represented defendant and called him a "low life" was neutral and detached where he did not rely on information outside the affidavit, which clearly established probable cause); State v. Griffen, 241 Kan. 68, 71-72, 734 P.2d 1089 (1987) (district judge referring to defendant as a "'mean mother,'" when explaining the case background to new defense counsel, while ill-advised, did not demonstrate bias and prejudice). Robinson, relying on State v. Alderson, 260 Kan. 445, 468-69, 922 P.2d 435 (1996), argues Judge McClain's comments should be construed as evidence of bias because the judge was the victim of Robinson's fraud, i.e., he received Robinson's sham affidavits in the mid-1980s. In Alderson, we held that a reasonable person would question the trial judge's impartiality where defendant was prosecuted for stealing a car owned by the trial judge's brother. 260 Kan. at 469. Unlike the situation in Alderson, neither Judge McClain nor any member of his family suffered injury or financial loss from Robinson's sham affidavits. Robinson delivered the affidavits in hopes of avoiding prosecution, not to defraud Judge McClain financially. Robinson's efforts proved unsuccessful and did not impede then-prosecutor McClain's filing of criminal charges. In fact, the sham affidavits bolstered the State's case in the Back Care prosecution. Robinson's reliance on Alderson is misplaced.Page 121 Based on the foregoing analysis, we agree with Judge Anderson's legal conclusion that Judge McClain was a neutral and detached magistrate.Jurisdiction to Issue Extraterritorial Search Warrant In his second suppression issue, Robinson claims Judge McClain exceeded his territorial jurisdiction, as defined by Kansas statutes, by issuing the warrant to search Robinson's property in Linn County, rendering the warrant void ab initio. 1. Standard of Review As set forth above, in considering the denial of a motion to suppress, we review factual findings for substantial competent evidence and legal conclusions de novo. State v. Schultz, 289 Kan. 334, 340, 212 P.3d 150 (2009). Defendant's challenge also requires the court to interpret various statutes defining the powers of district judges. "The interpretation of statutes is a question of law over which an appellate court exercises unlimited review." State v. Arnett, 290 Kan. 41, Syl. カ 1, 223 P.3d 780 (2010). 2. Can district judges issue extraterritorial search warrants? Resolution of this challenge requires the court to analyze competing statutory interpretations regarding a district judge's authority to issue extraterritorial search warrants. To do so, we first outline the relevant constitutional and statutory framework. The Kansas Constitution created the district courts of Kansas and provided that they "shall have such jurisdiction in their respective districts as may be provided by law." Kan. Const. art. 3, ァ 6(a) and (b). The legislature, in turn, has provided that district judges "provided for in the Kansas constitution shall have and exercise the full judicial power and authority of a district court." K.S.A. 20-302. The legislature later created two classesPage 122 of "judges of the district courts"妖istrict magistrate judges and district judges. K.S.A. 20-301a. A "judge of the district court' means any of such judges." K.S.A. 20-301a. The legislature has defined the general powers and authority of "judges of the district court" at K.S.A. 20-301a:"Such judges shall have the jurisdiction, powers and duties prescribed by this act and otherwise prescribed by law. The judicial power and authority of a judge of the district court in each judicial district may be exercised anywhere within such judicial district and may be exercised anywhere within any other judicial district when assigned to hear any proceeding or try any cause in such judicial district, as provided in K.S.A. 20-319 and amendments thereto." These provisions serve as a general limitation on judges of the district court, requiring that they exercise powers from within the territorial boundaries of their judicial districts. Verdigris Conservancy District v. Objectors, 131 Kan. 214, 218, 289 P. 966 (1930) ("judicial business is to be done in judicial districts, by district courts and district judges acting within and for their respective districts"). Beyond these general grants of authority, the legislature has specifically defined a judicial officer's authority to issue search warrants. The legislature has provided that search warrants shall be issued by a "magistrate." K.S.A. 22-2502(a). A "'magistrate'" includes "judges of district courts," which includes both district magistrate judges and district judges. K.S.A. 22-2202(14); K.S.A. 20-301a. However, the legislature has placed territorial limits on the execution of search warrants issued by a district magistrate judge."Search warrants issued by a district magistrate judge may be executed only within the judicial district in which said judge resides or within the judicial district to which said judge has been assigned pursuant to K.S.A. 20-319." K.S.A. 22-2503.Page 123 Importantly, the legislature placed no such territorial limitation on search warrants issued by district judges. See K.S.A. 22-2502 and 22-2503. Judge McClain was a district judge in Johnson County, the lone county in the Tenth Judicial District. He issued a warrant from within the territorial boundaries of the Tenth Judicial District to search Robinson's Linn County property, located in the Sixth Judicial District. In his motion to suppress and on appeal, Robinson argues K.S.A. 20-301a, which permits a "judge of the district court" to exercise judicial powers anywhere within the territorial boundaries of the judicial district, prevented Judge McClain from issuing the extraterritorial search warrant. Judge Anderson denied defendant's motion to suppress, finding the legislature intended to grant district judges authority to issue search warrants executable statewide under K.S.A. 22-2503 by placing territorial limits on search warrants issued by district magistrate judges only. The resolution of these competing statutory interpretations lies within the history of the pertinent statutes. We begin with the search warrant statutes, which predate the legislature's enactment of K.S.A. 20-301a. K.S.A. 22-2502 and 22-2503 authorize judges of the district court to issue search warrants, but K.S.A. 22-2503 places territorial limits on the execution of warrants issued by district magistrate judges. This was not always the case. K.S.A. 62-1830 (Corrick), the predecessor to K.S.A. 22-2502 and 22-2503, formerly provided:"'A warrant shall issue upon affidavit or upon oral testimony given under oath and recorded before the magistrate or judge. If the magistrate or judge is satisfied that there is probable cause for the issuance of a warrant, he shall issue such warrant describing the property to be searched for and seized and naming or describing the person, place or means of conveyance to be searched. The warrant shall be directed to any peace officer of the state of Kansas, or one of its governmental subdivisions who isPage 124 authorized to enforce or assist in enforcing any law thereof. It shall state the grounds for its issuance, and shall command the officer to search the person, place, thing, or means of conveyance named for the property specified, and to seize such property and hold the same in accordance with the law.'" (Emphasis added.) State v. Lamb, 209 Kan. 453, 468-69, 497 P.2d 275 (1972) (quoting K.S.A. 62-1830), overruled on other grounds by State v. Jacques, 225 Kan. 38, 587 P.2d 861 (1978). In Lamb, the defendant challenged a Johnson County magistrate's jurisdiction to issue an extraterritorial search warrant. Rejecting the challenge, Lamb held that K.S.A. 62-1830 granted both magistrates and judges the authority to issue search warrants executable statewide. Lamb reasoned that by directing a magistrate or judge to deliver the warrant to any peace officer of the state of Kansas, the statute implied that "a search warrant issued by a magistrate within the confines of his [or her] jurisdiction, can be served anywhere within the state of Kansas." 209 Kan. at 469. In 1970, the legislature repealed K.S.A. 62-1830 and enacted K.S.A. 22-2503 as part of the codification of the Kansas Criminal Code. L. 1970, ch. 129, sec. 22-2503. Unlike former K.S.A. 62-1830, K.S.A. 22-2503 expressly provided that "[s]earch warrants issued by courts of limited jurisdiction may be executed only within the territorial limits of the county in which the court is located." L. 1970, ch. 129, sec. 22-2503. As discussed below, this statute was later amended to specifically apply the territorial restriction to district magistrate judges only. However, the legislature did not wholly abandon the language in K.S.A. 62-1830 from which Lamb inferred the authority to issue extraterritorial warrants, i.e., that warrants be "directed to any peace officer of the state of Kansas." Instead, it incorporated substantially similar language into new section 2505, providing that "[a] search warrant shall be issued in duplicate and shall be directed for execution to all law enforcementPage 125 officers of the state, or to any law enforcement officer specifically named therein." (Emphasis added.) L. 1970, ch. 129, sec. 22-2505. Through these 1970 amendments, the legislature eliminated the authority of courts of limited jurisdiction to issue extraterritorial search warrants; it imposed no similar limitation on district judges; and it retained in K.S.A. 22-2505, the language from which Lamb inferred the authority of judges to issue extraterritorial warrants. Viewed together, these amendments provide persuasive support for the view that the legislature intended to grant district judges authority to issue search warrants executable statewide. The 1970 amendments alone do not explain the legislature's subsequent enactment of K.S.A. 20-301a in 1976. But, the legislative history surrounding this enactment suggests strongly that it was never intended to restrict district judges' authority to issue extraterritorial search warrants. On April 14, 1976, the legislature approved House Bill 2729, resulting in the enactment of K.S.A. 20-301a. L. 1976, ch. 146, sec. 10. In this bill, the legislature defined "judges of the district court" to include district judges and district magistrate judges and granted them authority to exercise their powers from anywhere within their judicial districts. Eight days later, on April 22, 1976, the legislature passed House Bill 3186, amending K.S.A. 22-2503 as follows:"Search warrants issued by courts of limited jurisdiction a district magistrate judge may be executed only within the territorial limits of the county in which the court is located said judge resides." L. 1976, ch. 163, sec. 3.Page 126 The legislature's 1976 amendment to K.S.A. 22-2503 was a response to its earlier approval of K.S.A. 20-301a, which created district magistrate judges as one of two classes of judges of the district court. The amendment to K.S.A. 22-2503 reflected this new classification by substituting "a district magistrate judge" in place of "courts of limited jurisdiction." Had the legislature intended K.S.A. 20-301a to limit a district judge's authority to issue extraterritorial search warrants, it would have included all classes of "judges of the district court" in its amendment of K.S.A. 22-2503 or repealed this section altogether. Instead, it chose to place the territorial limitation on the execution of search warrants issued by "a district magistrate judge" only. Three years later, the legislature adopted House Bill 2046, which amended K.S.A. 22-2503 to clarify that search warrants issued by a district magistrate judge were executable within the "judicial district" rather than the "territorial limits of the county" in which the judge resides. L. 1979, ch. 96, sec. 1. Once again, such an amendment would have been wholly unnecessary had the legislature intended K.S.A. 20-301a to limit the authority of judges of the district courts to issue extraterritorial search warrants altogether. Robinson's construction of K.S.A. 20-301a as a limitation on district judges' authority to issue extraterritorial warrants would render the legislature's 1976 adoption of House Bill 3186 and 1979 adoption of House Bill 2046 meaningless. In fact, it would render the entirety of K.S.A. 22-2503 altogether superfluous. See State v. LaGrange, 294 Kan. 623, Syl. カ 1, 279 P.3d 105 (2012) (courts shall "presume that the legislature does not intend to enact useless, superfluous, or meaningless legislation"). The defendant's construction of K.S.A. 20-301a also fails to give meaning to other provisions within Article 25 of the Kansas Code of Criminal Procedure. For example, thePage 127 statute authorizing installation or use of pen registers or trap and trace devices expressly limits a judge's ability to issue extraterritorial orders authorizing the use of such monitoring devices. K.S.A. 22-2527(1). The legislature enacted this statute in 1988, subsequent to the 1976 enactment of K.S.A. 20-301a. L. 1988, ch. 117, sec. 8. Likewise, the wiretap statute limits a judge's ability to issue extraterritorial orders authorizing electronic interception of communications. K.S.A. 22-2516(3). Once again, had the legislature intended K.S.A. 20-301a to serve as a general limitation on a district judge's jurisdiction to issue orders and warrants to be executed outside the judge's home district, then the express provisions doing so under the pen register and wiretap statutes would have been unnecessary. When K.S.A. 22-2503 and 22-2505 are read together and considered against the history and developments subsequent to the 1970 codification, it is evident the legislature intended for district judges to retain their pre-code authority to issue search warrants executable statewide, while simultaneously revoking district magistrate judges' pre-codification authority to do so. See State v. Van Hoet, 277 Kan. 815, Syl. カ 2, 89 P.3d 606 (2004) ("Where the face of the statute leaves its construction uncertain, the court may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested."). The Court of Appeals panel in State v. Englund, 50 Kan. App. 2d 123, 135, 329 P.3d 502 (2014), reached the same conclusion:"When we consider K.S.A. 22-2503 and K.S.A. 22-2505 together, two statutes enacted at the same time K.S.A. 62-1830 (Corrick 1964) was repealed, the legislature's intent is clear: district magistrates may no longer issue search warrants outside their home judicial district, but district judges can."Page 128 See also State v. Adams, 2 Kan. App. 2d 135, 138, 576 P.2d 242 (unlike electronic eavesdropping statute, nothing in the search and seizure statutes limits power of district judges to issue warrants within territorial jurisdiction), rev. denied 225 Kan. 845 (1978). The United States District Court for the District of Kansas also has embraced this construction of the search warrant statutes. See United States v. Aikman, No. 09-10097-01-JTM, 2010 WL 420063, at *6 (D. Kan. 2010) (unpublished opinion) (no territorial limit on search warrant issued by district judge under K.S.A. 22-2503); Lord v. City of Leavenworth, No. 08-2171-JWL, 2009 WL 129367, at *4 (D. Kan. 2009) (unpublished opinion) (in 42 U.S.C. ァ 1983 constitutional tort claim, finding that district judge properly issued extraterritorial warrant under K.S.A. 22-2503; limitation on territorial jurisdiction applies to district magistrate judges only). This construction provides meaning to K.S.A. 22-2503 and 22-2505, as well as K.S.A. 20-301a. K.S.A. 20-301a requires judges of the district court to exercise their powers within the territorial boundaries of their judicial districts. Applied here, K.S.A. 20-301a required Judge McClain to issue the search warrant from a location within Johnson County. More generally, K.S.A. 20-301a continues to prevent judges of the district courts from trying cases or conducting judicial proceedings outside the boundaries of their judicial districts, absent proper assignment under K.S.A. 20-319. Robinson argues K.S.A. 20-301a, as the more recent legislative act, controls over Lamb and K.S.A. 22-2503 and 22-2505. See Farmers State Bank & Trust Co. of Hays v. City of Yates Center, 229 Kan. 330, 338, 624 P.2d 971 (1981) ("Where there is a conflict between the provisions of two or more statutory sections, the latest legislative expression controls."). However, as discussed above, 1 week after the legislature approved the bill resulting in the enactment of K.S.A. 20-301a, it adopted amendments to K.S.A. 22-2503,Page 129 clarifying that only district magistrate judges are precluded from issuing extraterritorial warrants. Defendant's argument fails to account for this sensible pattern of legislative action. Furthermore, as explained in Englund, "here we have a conflict between a general principle of law (K.S.A. 20-301a) and a more specific enactment dealing not with the overall jurisdiction of judges, but their specific jurisdiction in issuing search warrants (K.S.A. 22-2505). In this situation, the more specific statute controls." 50 Kan. App. 2d at 135. Also, because K.S.A. 22-2503 and 22-2505 were enacted together, address the same subject, and are contained in Article 25, Search and Seizure, of the Kansas Code of Criminal Procedure, they are in pari materia and must be construed together and brought into harmony. See In re Tax Appeal of LaFarge Midwest, 293 Kan. 1039 1045, 271 P.3d 732 (2012) ("when construing statutes to determine legislative intent, appellate courts must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible"). Robinson also points to the arrest warrant and subpoena statutes, which expressly grant district judges authority to issue extraterritorial warrants and orders, as support for his construction. See K.S.A. 22-2305(2); K.S.A. 22-3214. Defendant suggests this language would be unnecessary if district judges had authority to act beyond the territorial limits set out by K.S.A. 20-301a. However, Robinson's argument fails to account for the fact that the legislature enacted the arrest warrant and subpoena statutes in 1970, prior to the 1976 enactment of K.S.A. 20-301a. The argument also begs the question whether the legislature intended to grant district judges the same extraterritorial authority for search warrants when it repealed K.S.A. 62-1830 and enacted K.S.A. 22-2502, 22-2503, and 22-2505.Page 130 Robinson also cites State v. Sodders, 255 Kan. 79, 872 P.2d 736 (1994), as support for his construction. There, defendant argued city police officers exceeded their authority by executing a search warrant beyond their territorial boundaries defined in K.S.A. 22-2401a. The State argued K.S.A. 22-2505 gave law enforcement officers power to execute warrants outside their jurisdiction, creating an exception to a law enforcement officer's territorial limitation under K.S.A. 22-2401a. We held that K.S.A. 22-2505 was a general statute providing that search warrants shall be executed by law enforcement officers and had nothing to do with their territorial jurisdiction. 255 Kan. at 84. Based on this rationale, Robinson argues that the territorial limits on district judges in K.S.A. 22-301a, like the territorial limits on law enforcement officers in K.S.A. 22-2401a, prohibit extraterritorial search warrants, and just as K.S.A. 22-2505 has nothing to do with the territorial jurisdiction of officers, it likewise has nothing to do with the territorial jurisdiction of district judges. However, Sodders examined the statutory scheme governing law enforcement officers' territorial jurisdiction, not judges of the district courts. Furthermore, contrary to Robinson's assertion, Lamb held that language substantially similar to K.S.A. 22-2505 was relevant to defining a judge's authority to issue extraterritorial warrants. 209 Kan. at 469. In fact, in his dissenting opinion in Sodders, Justice Lockett agreed with our construction of K.S.A. 22-2503 in dicta, acknowledging the territorial limitation on extraterritorial search warrants applied to district magistrate judges only. 255 Kan. at 87 (Lockett, J., dissenting). Sodders is inapposite. We likewise agree with the construction adopted by the panel of the Court of Appeals in Englund, which is more consistent with the legislative background and history and better harmonizes the relevant statutory scheme.See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010); Van Hoet, 277 Kan. 815, Syl. カ 2. Accordingly, we find no error in Judge Anderson's denial of defendant's motion to suppress on these grounds.Page 131 Exercise of Law Enforcement Powers beyond Territorial Jurisdiction Robinson next argues law enforcement officers exercised police powers beyond their territorial jurisdiction, in violation of K.S.A. 22-2401a, and Judge Anderson erred in refusing to suppress evidence derived from such activity. In particular, defendant contends Lenexa and/or Overland Park police exceeded their territorial jurisdiction by: (1) conducting warrantless trash searches at his Olathe residence; (2) executing the warrant to search his Linn County property; and (3) executing warrants to search his Olathe residence and storage units. As set forth in the previous section, we review Judge Anderson's factual findings for substantial competent evidence and his legal conclusions de novo. 1. Did the trash searches violate K.S.A. 22-2401a? On numerous occasions, members of the Lenexa Police Department (LPD) traveled beyond the Lenexa city limits to conduct warrantless searches and seizures of trash left for collection outside Robinson's Olathe residence. Because LPD conducted this investigative work beyond its territorial jurisdiction, Robinson believes evidence derived from the trash pulls should have been suppressed. K.S.A. 22-2401a provides, in relevant part:"(2) Law enforcement officers employed by any city may exercise their powers as law enforcement officers:(a) Anywhere within the city limits of the city employing them and outside of such city when on property owned or under the control of such city. "Page 132 The statute includes several exceptions, none of which are applicable to law enforcement's trash pulls. A "law enforcement officer" is "any person who by virtue of office or public employment is vested by law with a duty to maintain public order or to make arrests for violation of the laws of the state of Kansas or ordinances of any municipality . . . ." See K.S.A. 22-2202(13); K.S.A. 22-2401a(10)(a). There is no dispute that LPD officers conducted trash searches beyond their territorial jurisdiction. The question is whether they were exercising their powers as law enforcement officers in doing so. Judge Anderson found LPD officers were not acting under the color of office and this activity fell beyond the scope of K.S.A. 22-2401a. We disagree. LPD officers were not acting as private citizens when they conducted the trash pulls. They contacted the private trash hauler's security officer to obtain the company's cooperation and assistance. They commandeered the company's trash truck to collect defendant's trash and/or made arrangements for the private hauler to segregate defendant's trash and meet LPD officers at an agreed location to deliver it. The powers of a law enforcement officer include those "necessary to permit the city officer to meet his or her common-law duty to the public to preserve the peace." State v. Vrabel, 301 Kan. 797, 803-04, 347 P.3d 201 (2015). Here, LPD officers utilized their status as law enforcement officers to facilitate the cooperation and assistance of the private trash hauler, and they did so in furtherance of their duty to preserve the peace by building a case against Robinson預 person they believed was involved in multiple murders and posed a continuing threat to the community. Cf. Vrabel, 301 Kan. at 803-05 (officers' organized and planned controlled drug buy with confidential informant to build case against defendant in furtherance of duty to preserve the peace fell within scope of K.S.A. 22-2401a).Page 133 We understand that, in most instances, private citizens may freely search garbage left on or at the side of a public street. California v. Greenwood, 486 U.S. 35, 40, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988) ("It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public."). However, we doubt seriously they could wield sufficient influence to secure the cooperation and assistance of a private trash contractor in such endeavors for weeks on end. See State v. Martin, No. 102,639, 2010 WL 1253752, at *7 (Kan. App. 2010) (unpublished opinion) (private citizen's trash pulls carried out with prior knowledge and acquiescence of law enforcement to further investigative efforts could not be deemed private action); Rodgers v. Waste Industries, Inc., No. 4:12-CV-294-FL, 2013 WL 4460265, at *5 (E.D.N.C. 2013) (where plaintiff alleged private trash hauler removed trash at behest of law enforcement, complaint sufficiently alleged action under color of law sufficient to state a claim under 42 U.S.C. ァ 1983), aff'd 553 Fed. Appx. 332 (4th Cir. 2014) (unpublished opinion). Based on LPD officers' planning and coordination with the private trash contractor, along with their collaborative efforts to successfully complete these trash pulls over the course of several weeks, we conclude LPD officers were not acting exclusively as private citizens but, instead, exercised "powers as law enforcement officers" under these particular facts. See K.S.A. 22-2401a. Acknowledging a violation of K.S.A. 22-2401a, the question turns to the appropriate remedy, if any. In Sodders, 255 Kan. at 84, despite the absence of any federal or state constitutional violation, the court affirmed the suppression of evidence where Overland Park police officers exceeded their territorial jurisdiction by executing a search warrant within the municipal boundaries of Lenexa.Page 134 However, the Sodders majority did not specifically analyze or address the remedies available under K.S.A. 22-2401a. More recently, in Vrabel, 301 Kan. at 808-14, we explored what, if any, remedy was available to defendant under K.S.A. 22-2401a. There, city law enforcement officers violated the statute by organizing and carrying out a controlled drug buy outside their municipal boundaries. Neither the exclusionary rule, applicable to unconstitutional searches or seizures, nor the statutory provision for suppressing illegally seized evidence, K.S.A. 22-3216, applied because officers did not conduct an illegal search or seizure. Vrabel, 301 Kan. at 810-11. Therefore we considered whether suppression was an individual remedy available under K.S.A. 22-2401a. 301 Kan. at 811-14. Distinguishing Sodders based on the absence of any search or seizure, we held that suppression is generally not required where city officers exercise police powers"other than search and seizure"熔utside their municipal jurisdiction. Vrabel, 301 Kan. at 813-14. Unlike Vrabel, LPD officers' conduct did involve searches and seizures carried out in violation of K.S.A. 22-2401a. Yet defendant's challenge is based on a violation of state statute, not the Fourth Amendment to the United States Constitution or ァ 15 of the Kansas Constitution Bill of Rights. Thus, application of the exclusionary rule does not inevitably follow unless the legislature has enacted such a compulsory remedy. See United States v. Green, 178 F.3d 1099 (10th Cir. 1999) (search conducted in violation of K.S.A. 22-2401a did not warrant application of exclusionary rule); 2 LaFave, Israel, King & Kerr, Criminal Procedure ァ 3.1(e), pp. 30-32 (3d ed. 2007) (searches invalid on state law grounds do not invariably require suppression of evidence). Kansas statute provides a vehicle for defendants to move for the suppression of evidence seized in violation of law. K.S.A. 22-3216(1) provides that a defendant "aggrieved by an unlawful search and seizure may move . . . to suppress as evidence anything so obtained." However, it does not compel the trial court to grant that remedyPage 135 for any search conducted in violation of state statute in particular. Compare K.S.A. 22-3216(1) with Tex. Crim. Proc. Code Ann. art. 38.23 (West 2005) ("No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case."). In the absence of the statutory equivalent to the federal exclusionary rule, we consider whether the legislature intended to create individual rights or remedies under K.S.A. 22-2401a. See 1 LaFave, Search & Seizure, A Treatise on the Fourth Amendment ァ 1.5(b), pp. 210-12 (5th ed. 2012) (where search challenged on state law grounds, courts examine underlying state statute and legislative intent to determine if suppression is an available remedy); 2 LaFave, Israel, King & Kerr, Criminal Procedure ァ 3.1(e), pp. 30-32 (exclusion may be an available remedy for search that violates state law where remedy is provided by statute or statute confers a substantial right, especially one related to Fourth Amendment protections). We addressed this question in Vrabel and found the purpose of K.S.A. 2014 Supp. 22-2401a was to protect local autonomy, not to create individual rights."[I]t is apparent that the statutory limitations on the jurisdiction of city officers was put in place to protect the local autonomy of neighboring cities and counties, rather than to create an individual right, assuring that a person could only be caught breaking the law by an officer of the jurisdiction within which the crime was being committed." 301 Kan. at 813.Because the statute does not vest defendant with any substantive right, it logically follows that suppression of evidence is not an individual remedy available to defendant. Nor can Robinson reasonably claim he suffered injury to any substantial right based on the fact that LPD officers, rather than Olathe police, conducted the otherwise lawful trash pulls.Page 136 We hold that suppression of the evidence seized during LPD officers' trash pulls is not a remedy available to Robinson. See Vrabel, 301 Kan. at 813-14 (suppression of evidence not a remedy under K.S.A. 2014 Supp. 22-2401a, "especially . . . in circumstances . . . where the defendant has not been prejudiced in the least by" the exercise of law enforcement powers). In so holding, we do not suggest exclusion of evidence is never a remedy available for a search or seizure conducted in violation of state law. However, where a search is conducted in violation of state statute only and the statute violated does not vest defendant with an individual right, does not contemplate exclusion of evidence as a remedy, and the violation results in no cognizable injury to defendant's substantial rights, such a remedy is unavailable. 2. Did the Linn County search violate K.S.A. 22-2401a? Under the same statutory authority, Robinson argues LPD officers exceeded their jurisdiction by executing the warrant to search Robinson's property in Linn County. The relevant facts are not in dispute. The LPD was in charge of the investigation and secured a warrant from a Johnson County district judge to search Robinson's property in Linn County. Before obtaining the warrant, LPD discussed the search with the Linn County Sheriff's Department (LCSD). Before commencing the search, a LCSD deputy signed a document memorializing LCSD's request for assistance from LPD and other agencies in executing the warrant. Kansas statute requires city police officers to exercise their police powers within the territorial boundaries of their employing municipality. K.S.A. 22-2401a(2)(a). However, this general rule is subject to an exception where law enforcement officers receive a request for assistance from another jurisdiction:Page 137 "(2) Law enforcement officers employed by any city may exercise their powers as law enforcement officers:(a) Anywhere within the city limits of the city employing them . . .; and(b) in any other place when a request for assistance has been made by law enforcement officers from that place . . . ." K.S.A. 22-2401a(2). Robinson argues this exception does not apply because LCSD's request for assistance was not genuine, evidenced by the fact that LCSD did not draft the written request, did not secure the search warrant, had no prior involvement in the investigation, and did not play a lead role during the search. We disagree. On its face, K.S.A. 22-2401a(2)(b) requires only that law enforcement officers from the host jurisdiction make a request for assistance. See Zimmerman v. Board of Wabaunsee County Comm'rs, 289 Kan. 926, Syl. カ 3, 218 P.3d 400 (2009) ("An appellate court merely interprets the language as it appears; it is not free to speculate and cannot read into the statute language not readily found there."). We have rejected the view that K.S.A. 22-2401a(2)(b) includes any genuineness requirement in State v. Ross, 247 Kan. 191, 194, 795 P.2d 937 (1990) (nothing in the statute suggests legislature intended to require a request arise from an actual need for assistance). Instead, we held that a request for assistance alone satisfies the technical requirements of the statutory exception, regardless of the surrounding facts and extraneous circumstances. 247 Kan. at 195 ("[i]t is not necessary to establish that the need existed . . . only that the request for assistance was made"). Ross confirms that the written request LCSD executed satisfied the requirements of K.S.A. 22-2401a and LPD had jurisdiction to execute the search warrant in Linn County. Robinson cities State v. Hennessee, 232 Kan. 807, 658 P.2d 1034 (1983), Sodders, 255 Kan. 79, and State v. Rowe, 18 Kan. App. 2d 572, 856 P.2d 1340, rev. denied 253Page 138 Kan. 863 (1993), in support of his position. However, unlike the situation here, in those cases law enforcement from the foreign jurisdiction never received a request for assistance from the host jurisdiction. Moreover, nothing in Hennessee, Sodders, or Rowe suggests that there must be a genuine need for the requested assistance or that, if the request is reduced to writing, it must be drafted by the host jurisdiction. In contrast, Ross makes clear that the plain language of K.S.A. 22-2401a(2)(b) imposes no such requirements. 3. Did Johnson County searches violate K.S.A. 22-2401a ? Finally, Robinson contends the LPD and Overland Park Police Department (OPPD) lacked territorial jurisdiction to execute the warrants to search Robinson's residence and storage unit located within the territorial boundaries of the city of Olathe. However, in 1994, the legislature approved Senate Bill 742, which amended K.S.A. 22-2401a (Ensley 1988) to expand the territorial jurisdiction of law enforcement officers in Johnson County when executing arrest and search warrants. L. 1994, ch. 286, sec 1. As enacted, the expanded statute of jurisdiction provides:"(5) In addition to the areas where law enforcement officers may exercise their powers pursuant to subsection (2), law enforcement officers of any jurisdiction within Johnson or Sedgwick county may exercise their powers as law enforcement officers in any area within the respective county when executing a valid arrest warrant or search warrant, to the extent necessary to execute such warrants." (Emphasis added.) K.S.A. 22-2401a(5). Robinson argues the phrase "to the extent necessary to execute such warrants" requires the State to prove Olathe police had a genuine need for LPD's and OPPD's involvement in the execution of these warrants. Absent proof that the Olathe PolicePage 139 Department lacked the ability or capacity to execute the warrants independently, Robinson believes the statutory exception cannot apply. Robinson's construction is inconsistent with the plain meaning of K.S.A. 22-2401a(5). The subsection begins with a legislative grant of jurisdiction to law enforcement officers in Johnson County, allowing them to execute warrants countywide. The legislature's use of the phrase "when executing a valid . . . search warrant" demonstrates this grant of jurisdiction is not subject to any condition precedent. The phrase "to the extent required to execute such warrants" modifies and limits the type of police powers officers may exercise "when" executing warrants outside their municipal boundaries, i.e., those powers incidental to the execution of the warrants. K.S.A. 22-2401a(5). The phrase does not limit the officers' jurisdiction to execute the warrants in the first instance. This plain meaning is consistent with the history and context that gave rise to the legislature's enactment of K.S.A. 22-2401a(5). In Sodders, the court held that OPPD officers lacked territorial jurisdiction to execute a search warrant within Lenexa city limits, and the mere presence of LPD officers, even at the request of OPPD, did not satisfy the request for assistance exception. 255 Kan. at 84. Only 10 days later, the legislature enacted Senate Bill 742, enacting K.S.A. 22-2401a(5). L. 1994, ch. 286, sec. 1. The amendment was a legislative response to Sodders designed "to allow law enforcement officers of any jurisdiction within Johnson County or Sedgwick County to exercise their powers as law enforcement officers in any area within the respective county when executing a search warrant." Vrabel, 301 Kan. at 807; see State v. Mendez, 275 Kan. 412, 419, 66 P.3d 811 (2003) (1994 legislative amendment "clearly authorize[s]" city police officers in Johnson County to execute search warrants countywide). Thus, even if interpretation of the statute's plain meaning were not possiblePage 140 and we needed to turn to construction, Robinson's construction is inconsistent with this legislative purpose. Based on the plain language of K.S.A. 22-2401a(5), consistent with the context and history giving rise to the 1994 amendment creating this subsection, LPD and OPPD officers had territorial jurisdiction to execute the search warrants in Olathe. We find no error in Judge Anderson's denial of defendant's motion to suppress on these grounds.Fourth Amendment Challenge to LPD Officers' Trash Pulls In addition to challenging LPD officers' trash searches under K.S.A. 22-2401a, Robinson believes this investigatory conduct violated his rights under the Fourth Amendment. We apply a two-part analysis to Fourth Amendment challenges to law enforcement's trash pulls, considering: (1) whether trash was seized within the curtilage of defendant's home; and (2) whether defendant held a reasonable expectation of privacy in the trash. State v. Fisher, 283 Kan. 272, 282-83, 154 P.3d 455 (2007). 1. Was the trash located within the curtilage of the residence? The Supreme Court considers the following four factors to determine whether a search was conducted within the curtilage of defendant's residence:"the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by." United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987).Page 141 As to the first factor, Robinson placed his trash container at curbside, near the end of his asphalt parking pad at the outer edge of his property. Robinson's challenge necessarily, but incorrectly, presumes the curtilage extended to the four corners of his entire property. Second, the trash container was located 10 to 12 feet beyond the exterior fence that encircled the perimeter of the mobile home. Third, the record confirms this area was utilized to discard trash, but there is scant evidence suggesting the area was put to other uses. Finally, Robinson took no affirmative steps to protect this area from observation by people passing by. Based on the totality of these circumstances, LPD officers seized Robinson's trash beyond the curtilage of his residence. See United States v. Long, 176 F.3d 1304, 1308 (10th Cir. 1999) (trash bags placed on top of trailer parked inside property line, approximately 3 feet from alley and 7 feet from attached garage, but not shielded from public view, beyond curtilage); United States v. Redding, 540 F. Supp. 2d 1184, 1187 (D. Kan. 2008) (trash bags located at curbside of defendant's front yard outside front fence beyond curtilage); State v. Alexander, 26 Kan. App. 2d 192, 196-97, 981 P.2d 761 (trash inside dumpster at end of driveway near property line, with no fence or barrier around home, beyond curtilage), rev. denied 268 Kan. 848 (1999); United States v. Martinez, No. 99-2044, 1999 WL 910029, at *2 (10th Cir. 1999) (unpublished opinion) (trash located outside chain-link fence of trailer home beyond curtilage); United States v. Cianciarulo, No. 10-40041-01-SAC, 2010 WL 2653423, at *3 (D. Kan. 2010) (unpublished opinion) (trash placed at the end of the driveway as if awaiting regular pickup not within curtilage). Defendant cites Robinson v. Com., 45 Va. App. 592, 612 S.E.2d 751 (2005), for the proposition that a driveway lies within the curtilage because it is an area where people wash cars, unload groceries, etc. There, however, family members testified theirPage 142 driveway was actually put to such uses. No similar testimony is included in our record. Also, the driveway in that Virginia case was expansive, splitting into two divergent paths that encircled an area of land in front of the home. The Virginia Court of Appeals found the portion of the driveway located next to landscaping adjacent to the home, where police observed evidence of the crime, was located within the curtilage of defendant's residence, not the entire driveway. 45 Va. App. at 606-07. In contrast, Robinson set trash out for collection at the farthest edge of his parking pad, located at his property line and exposed to other members of the public. Defendant's cited authority is distinguishable. 2. Was there a reasonable expectation of privacy? "Even if the trash bags were in the curtilage, the defendant must show that he had a reasonable expectation of privacy in them." Redding, 540 F. Supp. 2d at 1187; see Fisher, 283 Kan. at 290-91. Under nearly identical facts, Kansas courts have found no reasonable expectation of privacy in trash set out for collection at the edge of defendant's property in close proximity to the curb, even if located within the curtilage. Long, 176 F.3d at 1308-09 (once defendant put trash on the trailer adjacent to a public thoroughfare for collection, he defeated any reasonable expectation of privacy); Redding, 540 F. Supp. 2d at 1187 (defendant did not have reasonable expectation of privacy in trash placed on front curb, outside the front fence, for collection); State v. Kimberlin, 267 Kan. 659, 666, 984 P.2d 141 (1999) (placement of trash out for collection near road, even if located on property, defeated any reasonable expectation of privacy); Alexander, 26 Kan. App. 2d at 200 (no expectation of privacy in trash placed in dumpster 1 1/2 feet from street and clearly accessible to the public); Cianciarulo, 2010 WL 2653423, at *3 ("Society does not recognize a reasonable expectation of privacy in 'trash left for collection in an area accessible to the public.'"); United States v. Hamilton, No. 03-10114-01-WEB, 2003 WLPage 143 22462511, at *2 (D. Kan. 2003) (unpublished opinion) (no reasonable expectation of privacy in trash bags left out within a few feet of an alley on collection day); Martinez, 1999 WL 910029, at *2-3 (no reasonable expectation of privacy in trash placed outside fence near curb); State v. Baskas, No. 109,760, 2014 WL 3843088, at *7 (Kan. App. 2014) (unpublished opinion) (law enforcement could search trash bags set out at curbside for collection), rev. denied 302 Kan. ___ (July 21, 2015). The fact Robinson resided within a private mobile home community does not alter our conclusion. Robinson's trash was exposed to fellow residents of the 500-unit mobile home community. The trash also was exposed to members of the public who were free to enter the community provided they did not solicit while there. See Barekman v. State, 200 P.3d 802, 805-06 (Wyo. 2009) (no reasonable expectation of privacy in curbside trash accessible to others, even though defendant resided in private mobile home park); cf. United States v. Harris, 6 Fed. Appx. 304, 307-08 (6th Cir. 2001) (unpublished opinion) (curbside trash not protected by Fourth Amendment simply because defendant lived in gated community).Showing of Necessity for Wiretap Orders In his final suppression challenge, Robinson argues that the application for wiretap failed to satisfy a statutory requirement to show a need for this extraordinary investigatory tool, a standard dubbed the "necessity requirement." See United States v. Blackmon, 273 F.3d 1204, 1207 (9th Cir. 2001). 1. Legal Framework and Standard of Review The Kansas Wiretap Act provides:Page 144 "(1) Each application for an order authorizing the interception of a wire, oral or electronic communication shall be made in writing, upon oath or affirmation, to a judge of competent jurisdiction, and shall state the applicant's authority to make such application. Each application shall include the following information:. . . ."(c) A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." (Emphasis added.) K.S.A. 22-2516(1)(c). The federal act contains identical language. See 18 U.S.C. ァ 2518(1)(c) (2012). This is not surprising because the Kansas act largely mirrors the federal provisions, and therefore wiretap applications are subject to both the state and federal requirements. State v. Bruce, 295 Kan. 1036 1040, 287 P.3d 919 (2012). Accordingly, federal decisions interpreting 18 U.S.C. ァ 2518 are persuasive. See Fredricks v. Foltz, 221 Kan. 28, 30, 557 P.2d 1252 (1976); cf. Davis v. State, 426 Md. 211, 223, 43 A.3d 1044 (2012). The purpose of the necessity requirement is "to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime," United States v. Kahn, 415 U.S. 143, 153 n.12, 94 S. Ct. 977, 39 L. Ed. 2d 225 (1974), and to prevent law enforcement from employing wiretaps as "the initial step in criminal investigation." United States v. Giordano, 416 U.S. 505, 515, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974). The statute requires the applicant to provide "a full and complete statement of specific allegations indicating why normal investigative procedures failed or would fail in the particular case." Blackmon, 273 F.3d at 1207. General allegations and boilerplate language fail to satisfy the necessity requirement. 273 F.3d at 1210. However, courts "have adopted a 'common sense approach' in which the reviewing court uses a standard of reasonableness to evaluate the government's good faith effort to use alternativePage 145 investigative means or its failure to do so because of danger or low probability of success. [Citation omitted.]" 273 F.3d at 1207. As such, law enforcement officers are not required to exhaust every possible technique before resorting to a wiretap葉hey must instead demonstrate that wiretapping is not the first meaningful step in the investigation. United States v. Gonzalez, Inc., 412 F.3d 1102, 1113 (9th Cir. 2005), amended and reh. denied 437 F.3d 854 (9th Cir. 2006). To the extent Robinson's challenge requires us to construe state or federal versions of the necessity requirement, we apply ordinary rules of statutory interpretation and construction and de novo review. Bruce, 295 Kan. at 1038-39. To the extent the challenge requires the court to assess Judge Anderson's denial of Robinson's motion to suppress wiretap evidence, we apply the traditional standard applicable to such motions. 295 Kan. at 1039 (factual findings reviewed for substantial competent evidence, legal conclusions de novo). 2. Did the application and affidavit satisfy the necessity requirement? In Section VIII of the wiretap application, prosecutor Morrison and Detective Brown (Applicants) set forth allegations to satisfy the necessity requirement. The application describes with particularity reasons why infiltration by undercover agents was unlikely to succeed and was too dangerous, given Robinson's desire to solicit women to serve as "slaves" in BDS&M relationships and his connection to the disappearance of other missing women. Applicants explained how the use of informants was likely to be unsuccessful because they knew of no informants, other than women who were already involved with Robinson and could not be trusted to maintain confidences. The applicants also explained that continued surveillance would confirm overt acts but was unlikely to yield physical evidence or disclose coconspirator involvement, Robinson's modus operandi, or the specific nature of Robinson's relationship with the women he recruited.Page 146 Applicants warned that further use of interviews and inquisitional subpoenas might alert Robinson to the investigation. Applicants believed more pen register data could document Robinson's contacts but would not reveal the content of his communications. As for search warrants, applicants stated that they "would not provide sufficient evidence . . . to accomplish the goals of this investigation." Applicants defined those goals to include:"a. [G]athering sufficient evidence to successfully prosecute John E. Robinson and others yet unknown for the murder and kidnapping of Suzette Trouten."b. Identify[ing] future kidnapping victims targeted by John Robinson and gather[ing] sufficient information to intervene and prevent harm to any future victims." The application also incorporated by reference the averments set forth in Detective Brown's 31-page supporting affidavit. This affidavit set out findings uncovered through law enforcement's witness interviews, inquisitional subpoenas, extensive surveillance, trash pulls, analysis of pen register data, public record searches, consent searches, and other investigative practices. In particular, Brown explained Robinson had been implicated in the disappearance of several women dating back to the mid-1980s; he enticed them into sexual relationships, often involving BDS&M, and lured them to Johnson County with offers of employment, travel, and financial gain; he had done the same with Suzette Trouten; and since her disappearance had targeted new women using a similar modus operandi. Brown explained that Robinson used his cell phone extensively and it was instrumental in his efforts to solicit and maintain relationships with these women預 conclusion supported by findings from LPD officers' extensive surveillance, use of inquisitional subpoenas, and analysis of pen register data. See United States v. Nguyen, 46 F.3d 781, 783 (8th Cir.Page 147 1995) (necessity requirement satisfied where affidavit showed targets of investigation were dangerous, difficult to infiltrate, and conducted most of their crimes over the telephone; and government had tried using pen registers, confidential informants, surveillance, and garbage searches before pursuing wiretap). Robinson does not dispute that applicants satisfied the necessity requirement in discussing several traditional investigative techniques. However, he suggests the applicants' boilerplate statement that search warrants would not effectively advance the goals of the investigation was insufficient and invalidates the wiretap order. We disagree. The majority of courts have not construed the necessity requirement in such a strict, technical fashion. The statute "does not impose upon the government an exhaustion requirement but rather requires the government to establish that it first made a 'reasonable good faith effort' to utilize other available normal and less intrusive investigative techniques before resorting to a wiretap. [Citation omitted.]" United States v. Melendez-Santiago, 447 F. Supp. 2d 144, 149 (D.P.R. 2006), aff'd 644 F.3d 54 (1st Cir. 2011). Wiretap applicants satisfy the necessity requirement by supplying a detailed overview of the investigation to date, concrete reasons why a wiretap was necessary, and explanations of how a range of traditional investigative techniques were proving, or were expected to prove, unlikely to succeed or too dangerous. United States v. Yeje-Cabrera, 430 F.3d 1, 9 (1st Cir. 2005); see United States v. Maynard, 615 F.3d 544, 550 (D.C. Cir. 2010) (law enforcement engaged in an adequate range of investigative endeavors; government not required to enumerate every technique or opportunity missed or overlooked), aff'd in part sub nom. United States v. Jones, 565 U.S. ___, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012); United States v. Stewart, 306 F.3d 295, 305 (6th Cir. 2002) ("In endeavoring to secure a wiretap warrant, the government need not prove the impossibility of other means of obtaining information."). Here, the application and affidavit did just that, establishing law enforcement's need for a wiretap and confirming that it was not an option of first resort.Page 148 Independently, the applicants' general statement regarding the ineffectiveness of search warrants in accomplishing the goals of the investigation was supported by particularized, case-specific information contained within the four corners of the application and affidavit. The affidavit detailed how traditional investigatory techniques had revealed that defendant's criminal scheme involved soliciting and maintaining relationships with women and that he was highly dependent on his cell phone to perpetuate this scheme. Law enforcement officers had already issued subpoenas to defendant's telephone carriers and analyzed pen register data tracking calls from his home and cellular phone, but they needed to ascertain the substance of Robinson's conversations with the women he targeted to advance the goals of the investigation. From these averments one can reasonably infer that resort to search warrants, like other alternative investigatory methods described in the application, would not have produced this evidence. Viewed together, the averments set forth in the application and affidavit supported the boilerplate language regarding the ineffectiveness of search warrants, thereby satisfying the necessity requirement. See United States v. Sobamowo, 892 F.2d 90, 93 (D.C. Cir. 1989) (conclusory language cannot rationally be separated from preceding detailed descriptions of investigative events); United States v. Carneiro, 861 F.2d 1171, 1177 (9th Cir. 1988) ("While it is true that some of the statements in the affidavit are mere conclusions, the facts set forth in the affidavit meet the necessity requirement when examined as a whole and in a common-sense fashion."); United States v. Brone, 792 F.2d 1504, 1506 (9th Cir. 1986) ("the affidavit made somewhat conclusory assertions about the difficulties of prosecuting the case, but these assertions were in the context of an affidavit that was sufficiently specific in all other respects"); United States v. Sims, 508 Fed. Appx. 452, 457 (6th Cir. 2012) (unpublished opinion) (boilerplate language was not fatal to application where it also contained particular facts demonstrating wiretaps werePage 149 not being used routinely as the initial step in criminal investigation), cert. denied 133 S. Ct. 1847 (2013); United States v. Flores-Velasquez, Crim. No. 06-310(2) ADM/JJG, 2006 WL 3544927, at *3-4 (D. Minn. 2006) (unpublished opinion) (despite boilerplate language, application as a whole established need for wiretap). Robinson relies on United States v. Ramirez-Encarnacion, 291 F.3d 1219 (10th Cir. 2002), in support of the proposition that boilerplate language describing the effectiveness of search warrants is legally insufficient. There, the Tenth Circuit took the position that the statute requires applicants to describe all traditional investigatory techniques, including use of search warrants, with particularity. 291 F.3d at 1222. Robinson's reliance on Ramirez-Encarnacion is unpersuasive. The Tenth Circuit stands alone in requiring applicants to address all traditional investigatory techniques with particularity. United States v. Mesa-Rincon, 911 F.2d 1433, 1444 (10th Cir. 1990) (recognizing other circuits require only a discussion of techniques employed and explanation as to why a range of investigation methods would be ineffective or dangerous), modified on other grounds by United States v. Castillo-Garcia, 117 F.3d 1179 (10th Cir. 1997). In addition, even under its more stringent framework, the Tenth Circuit reviews the totality of the information and considers whether boilerplate language is adequately supported within the four corners of the application. Ramirez-Encarnacion, 291 F.3d at 1222 (court must consider all facts and circumstances in assessing showing of necessity); Castillo-Garcia, 117 F.3d at 1188 (court will overlook failure to adequately explain one or more specified categories of normal investigative techniques where recitation of facts makes explanation unnecessary), overruled on other grounds by Ramirez-Encarnacion 291 F.3d at 1222 n.1.Page 150 Here, the general language describing the ineffectiveness of search warrants was adequately supported by the averments contained in the four corners of the application and supporting affidavit. United States v. Segura, 318 Fed. Appx. 706, 709-10 (10th Cir. 2009) (unpublished opinion) (necessity requirement met where boilerplate statement regarding effectiveness of search warrants supported by facts in affidavit). We find no error in Judge Anderson's ruling.4. JURY SELECTION Defendant raises eight different issues related to the jury selection process, including: (1) whether Judge Anderson improperly curtailed voir dire questioning; (2) whether he erroneously denied defense challenges for cause; (3) whether he made disparate rulings on similarly situated challenges for cause; (4) whether he improperly denied a motion to strike a small group voir dire panel exposed to Juror 173's inflammatory remarks; (5) whether he improperly retained five panelists in light of alleged juror-specific bias; (6) whether he erred by excusing Juror 253 based on her opposition to the death penalty; (7) whether jury selection was tainted by alleged prosecutorial misconduct; and (8) whether the anonymous jury selection procedure was unlawful. We address each challenge in turn.Scope of Voir Dire 1. Standard of Review and Legal Framework Robinson argues Judge Anderson improperly curtailed the scope of voir dire in four respects, each of which he characterizes as separate claims. First, he contends Judge Anderson violated Kansas law by prohibiting case-specific questions regarding panelists' ability to consider a life sentence. Second, he argues the same limitation violated his constitutional rights. Third, he believes this limitation impaired his ability to identifyPage 151 mitigation-impaired jurors, violating state and federal law. Finally, he claims Judge Anderson improperly limited questioning on his prior terms of incarceration. We apply the following standard of review to scope of voir dire challenges:"Generally the nature and scope of the voir dire examination is entrusted to the sound discretion of the trial court. Manning, 270 Kan. at 691. However, '"[i]n determining whether the trial court has taken sufficient measures to assure that the accused is tried by an impartial jury free from outside influences, appellate tribunals have the duty to make an independent evaluation of the circumstances."' State v. Aikins, 261 Kan. 346, 366, 932 P.2d 408 (1997)." State v. Hayden, 281 Kan. 112, 128-29, 130 P.3d 24 (2006).See State v. Reyna, 290 Kan. 666, 686, 234 P.3d 761(same), cert. denied 131 S. Ct. 532 (2010). The trial court's discretion is not without constitutional limit. The Sixth Amendment to the United States Constitution guarantees the accused "[i]n all criminal prosecutions" the right to a trial by "an impartial jury." "Principles of Fifth Amendment due process also guarantee a defendant an impartial jury." Ristaino v. Ross, 424 U.S. 589, 595 n.6, 96 S. Ct. 1017, 47 L. Ed. 2d 258 (1976). The Supreme Court has acknowledged that an adequate voir dire is essential to the realization of these due process protections. Morgan v. Illinois, 504 U.S. 719, 729-30, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992) (noting that part of guarantee of defendant's right to impartial jury is an adequate voir dire; without it, the trial judge cannot fulfill his or her responsibility to remove those who cannot impartially follow instructions and evaluate the evidence). We "will find an abuse of discretion if the court unconstitutionally restricted [a capital defendant's] questioning during voir dire." United States v. McVeigh, 153 F.3dPage 152 1166, 1205 (10th Cir. 1998), disapproved on other grounds by Hooks v. Ward, 184 F.3d 1206 (10th Cir. 1999). 2. Did scope of voir dire rulings violate Kansas law? Robinson argues the trial court consistently denied counsel's efforts to utilize case-specific questioning to detect and disqualify panelists who would not realistically consider a life sentence in violation of K.S.A. 22-3408, 22-3410, 22-3412, and the holding in State v. Kleypas, 272 Kan. 894, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002), overruled on other grounds by Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006). To frame the issue properly, it is important to understand Judge Anderson's rulings pertaining to the scope of voir dire and the events giving rise to them. At the outset of the second phase of jury selection, small group voir dire, defense counsel injected case-specific facts into his line of questioning, specifically disclosing that Robinson had been charged with capital murder involving the killings of six women, including two 19 year olds, one of whom was in a wheelchair. The State objected, arguing defense counsel was improperly staking out jurors ("staking" jurors is the practice of asking case-specific questions designed to commit prospective jurors to a particular vote or to disclose how they would vote when faced with certain case-specific facts). Judge Anderson overruled the objection, explaining defense counsel was entitled to go into the factual basis of the charges to the extent it was consistent with the anticipated trial evidence or reported media facts. However, Judge Anderson cautioned defense counsel not to phrase such questions in a manner intended to elicit a commitment or promise from prospective jurors.Page 153 Defense counsel continued to disclose case-specific facts and incorporate them into questioning throughout the first 2 days of the second phase of jury selection, where the parties examined prospective jurors in panels of six on topics of pretrial publicity and the death penalty. During this time, defense counsel also began to incorporate case-specific facts into questions about how prospective jurors would decide the sentencing issue. For example, Robinson's counsel began to ask how much weight jurors would assign to a defendant's background and whether this type of mitigation evidence would be sufficient to warrant a life sentence. Judge Anderson grew increasingly concerned that Robinson's line of questioning was staking out the jury預 concern compounded by the fact that jurors were answering these questions devoid of any knowledge of the law governing the sentencing decision. On the morning of September 20, 2002, after completing 2 full days of small group voir dire, Judge Anderson established new guidelines for handling case-specific questions. He made clear that defense counsel could continue to disclose potentially inflammatory case-specific facts, including information regarding the victims, to determine whether they rendered potential jurors biased. However, Judge Anderson believed the case-specific questioning should be compartmentalized, raising those facts during questions about bias rather than sentencing. Defense counsel objected, saying several veniremembers had expressed in questionnaire responses that a person who committed crimes involving certain case-specific facts deserved to die. Thus the defense believed that inflammatory case-specific facts were "inextricably intertwined" with the sentencing issue. Judge Anderson clarified:"I want to make it very clear. I am not prohibiting the defense from going into the basic sketch of the factual allegations in the fashion that [defense counsel] gave the other day. I am requiring that that not be rolled into and brought up in the midst of a comparison between the aggravating and mitigating circumstances, because I do believePage 154 that the fashion which it's been raised during the last session Wednesday is tantamount to testing the jury to determine whether the specific, albeit very brief, factual allegations of the State would be weighed by the jury against the very generic mitigating circumstance without the factual comparison which we can't do because we are essentially getting into taking a vote on death penalty issues when we start doing that which would produce a juror that essentially would vote favorably for the defense and we are staking out the jury when we get to that point."I want you both to thoroughly explore the attitudes of the jury under Witherspoon. But I don't want to get into a determination during voir dire as to what this individual juror's position is on it and how they would vote on it and how much weight they would attach and whether that's over the threshold of overcoming the aggravating circumstance which is what I think you were getting into the other day. That's why I'm requiring that that factual basis be brought up during the portion of the voir dire. They're entitled to know it and you said to almost all of them, 'Do you know what the factual allegations are?' The process that we went through the other day did produce numbers of jurors who said they just didn't think there was anything that was going to convince them not to vote for the death penalty because of the factual allegations of the case."The defendant's voir dire has been effective in determining those jurors who cannot do this process of giving meaningful consideration to mitigating circumstances, and I do not believe this is contrary to the Constitution or to the case law counsel is citing. I stand by my ruling in that regard." (Emphasis added.) After the district judge ruled, defense counsel continued to inform prospective jurors of the alleged case-specific facts they believed to be most inflammatory or which had the greatest potential to create bias among members of the venire, including the fact that multiple people were murdered, along with the gender, age, and disability status of the victims. After disclosing the case-specific allegations, defense counsel consistently asked prospective jurors whether they could remain impartial. In several instances, defense counsel asked these case-specific questions in the context of sentencing. For example, defense counsel asked Juror 283 whether she couldPage 155 realistically consider a life sentence knowing the victims in this case were women, after her questionnaire responses expressed that people who prey on innocent women are sick and evil. Similarly, Juror 177 disclosed in questionnaire responses his belief that people who prey on weaker victims should be punished severely. Defense counsel explored the possibility that this view would control his sentencing decision given that all of Robinson's alleged victims were women, including one confined to a wheelchair. While exploring death penalty views with Juror 542, Robinson's counsel asked whether as a father of a young daughter, this juror could serve impartially, knowing Robinson was charged with killing young, teenage women. Defense counsel asked Juror 484 whether her work counseling sex abuse victims would prevent her from serving impartially, given the State's allegations of Robinson's violence against women and his participation in BDS&M activity. Defense counsel asked Juror 398 whether he could vote for a life sentence in a case involving a serial killer based on his questionnaire responses suggesting that life imprisonment would not be an appropriate punishment in that instance. Defense counsel employed similar lines of questioning with Jurors 463, 398, and 366. Judge Anderson also allowed the defense to utilize case-specific questioning during the third phase of jury selection, general voir dire. During this phase, Robinson's counsel asked panel members whether certain case-specific facts, including violence against women, BDS&M activity, adultery, gruesome photographs, and other case-specific evidence anticipated at trial would render them incapable of serving as impartial jurors. Robinson identifies only two instances relevant to this claim where the trial court enforced its ruling and limited the scope of inquiry. The first occurred during defense counsel's questioning of prospective Juror 205, and the second occurred during defense counsel's questioning of Juror 246. A review of the transcript confirms that in bothPage 156 instances, defense counsel's questions invited these panelists to compare the various theories or categories of aggravation and mitigation that were likely to be at issue in the case and discuss how such evidence would affect their sentencing decision, i.e., staked out the jury. Short of such a line of inquiry, Judge Anderson did not substantially limit Robinson's case-specific inquiry during voir dire. He allowed the defense to inform prospective jurors of sensitive case-specific allegations during small group voir dire; explore potential juror bias related to such facts; examine whether case-specific facts prevented jurors from realistically considering a life sentence, particularly when questionnaire responses indicated potential case-specific bias; and discuss potential bias in response to case-specific evidence during general voir dire. Contrary to Robinson's assertion, Judge Anderson's rulings did not categorically prohibit case-specific questioning. Nor did they limit case-specific questioning in the context of sentencing. Instead, the rulings limited case-specific questioning only to the extent such questions called on prospective jurors to assign weight to case-specific facts under Kansas' weighing equation and to disclose their likely sentencing decision in light of such facts. With a clearer understanding of Judge Anderson's rulings, we return to the analysis of Robinson's claim that they violated Kansas' voir dire statute, which provides:"The prosecuting attorney and the defendant or his attorney shall conduct the examination of prospective jurors. The court may conduct an additional examination. The court may limit the examination by the defendant, his attorney or the prosecuting attorney if the court believes such examination to be harassment, is causing unnecessary delay or serves no useful purpose." K.S.A. 22-3408(3). By limiting case-specific questioning that required prospective jurors to assign weight to aggravating or mitigating circumstances and provisionally decide the sentencePage 157 in light of such facts, Judge Anderson's rulings can be construed reasonably from the record as an attempt to avoid "unnecessary delay" on a subject that served "no useful purpose," i.e., staking out the jury. As such, the rulings reflect a permissible exercise of lawful discretion under Kansas' voir dire statute. For the same reasons, Robinson's arguments under K.S.A. 22-3410 and K.S.A. 22-3412 are equally unavailing. K.S.A. 22-3410 entitles parties to "challenge any prospective juror for cause." K.S.A. 22-3412 provides that defendants "charged with an off-grid felony . . . shall be allowed 12 peremptory challenges." Robinson argues Judge Anderson's rulings "prevented counsel from eliciting biases that would give rise to challenges for cause" and "impaired the defense's use of peremptory challenges." This argument is founded on the assumption that Judge Anderson categorically denied Robinson opportunity to explore juror bias related to case-specific factual allegations. This clearly was not the case. Robinson cites to several state court decisions from other jurisdictions that stand for the general proposition that jurors in capital proceedings who cannot consider both available sentencing options are not qualified to serve. Robinson also cites State v. Jackson, 107 Ohio St. 3d 53, 836 N.E.2d 1173 (2005), and United States v. Flores, 63 F.3d 1342 (5th Cir. 1995), for the corollary proposition that defendants should be informed of inflammatory case-specific facts (a 3-year-old victim and a victim who was a known drug dealer in those cases) in order to discern potential bias. In his Rule 6.09 letter, Robinson also cites to State v. Clark, 981 S.W.2d 143, 147 (Mo. 1998), for a similar proposition. These holdings arose from a trial court's categorical refusal to allow defendants any opportunity to disclose or question jurors on case-specific facts during voir dire. As discussed above, Judge Anderson's rulings did not bar such inquiry. Defense counselPage 158 freely informed prospective jurors of inflammatory case-specific facts and inquired whether such facts rendered them partial. Finally, Robinson argues Judge Anderson's rulings violated the holding of Kleypas. There the capital defendant argued "the trial court erred in denying his request for a separate sentencing jury," resulting in prejudice "because the same jury that heard his guilt phase also heard the penalty phase argument." 272 Kan. at 994. More specifically, defendant argued that the failure to provide a separate sentencing jury placed him in the "untenable position of being unable to voir dire the jury as to its bias regarding certain aggravating circumstances, such as his prior record, for fear of prejudicing the jury in the guilt phase." 272 Kan. at 995. However, we rejected this argument because Kleypas failed to take advantage of provisions within the capital sentencing scheme allowing him to question jurors about his criminal record and remove those biased at the start of the penalty phase:"K.S.A. 21-4624(b) provides a method for the defendant in every capital-murder case to remove biased jurors during the penalty phase. The defendant is entitled to ask questions during voir dire before the sentencing phase of the trial begins. Here, Kleypas chose not to voir dire the jurors concerning the binding effect of his prior murder conviction or any of the aggravating circumstances. However, that procedure existed as a method of removing potentially biased jurors for cause." 272 Kan. at 995. Robinson believes the above-cited language in Kleypas squarely authorizes case-specific questions regarding a panelist's willingness and ability to consider a life sentence. To the contrary, Kleypas did not address the permissible scope of voir dire in a capital proceeding. Even if it had, Judge Anderson's ruling did not preclude counsel from exploring whether case-specific facts rendered prospective jurors unqualified for service. And, like the defendant in Kleypas, Robinson did not request a separate opportunity toPage 159 voir dire the jury after conviction and before the start of the penalty phase. See 272 Kan. at 995. Judge Anderson's rulings are not inconsistent with our holding in Kleypas. 3. Did scope of voir dire rulings violate constitutional rights? Robinson also argues Judge Anderson's voir dire rulings violated his federal constitutional rights under the Sixth, Eighth, and Fourteenth Amendments. Any question concerning the constitutionally permissible scope of voir dire in capital proceedings necessarily begins with a discussion of Morgan v. Illinois, 504 U.S. 719, 729-30, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992), where the Supreme Court recognized a capital defendant's constitutional right to a "life-qualified" jury and the concomitant right to remove for cause on the ground of bias any prospective juror who will automatically vote for the death penalty irrespective of the facts or the trial court's instructions of law. Morgan recognized that a capital defendant must be afforded a reasonable opportunity to voir dire prospective jurors to effectively remove those who are not "life-qualified." 504 U.S. at 733-34. Morgan ultimately held the petitioner "was entitled, upon his request, to inquiry discerning those jurors who, even prior to the State's case in chief, had predetermined the terminating issue of his trial, that being whether to impose the death penalty." 504 U.S. at 736. Robinson claims Judge Anderson imposed a categorical prohibition on case-specific voir dire questioning in violation of his constitutional rights. The argument is legally and factually suspect. First, since Morgan, the majority of federal appellate courts have rejected the notion that the Constitution mandates case-specific questioning during voir dire in capital proceedings. Foremost among this authority is McVeigh, 153 F.3d 1166, the appeal of the defendant convicted of bombing the Murrah Federal Building in Oklahoma City, Oklahoma. There, defendant challenged the trial court's limitation onPage 160 case-specific questioning during voir dire. The Tenth Circuit first identified two categories of Morgan-related inquiries advanced by the defense: (1) "'general Morgan questions'" that inquired whether the juror would automatically impose the death penalty if a defendant were convicted of a capital offense; and (2) "'specific Morgan questions'" that inquired whether the facts of the bombing, as revealed through pretrial publicity, had predisposed prospective jurors toward automatically imposing the death penalty on anyone convicted. 153 F.3d at 1206. The Tenth Circuit found the trial court had not limited any of the properly phrased "general Morgan questions," but it had precluded "specific Morgan questions." 153 F.3d at 1207-08. Even so, the Tenth Circuit found no abuse of discretion, reasoning that defendant's case-specific inquiry exceeded constitutional requirements under Morgan:"Essentially, the questions were designed to ascertain whether the jurors felt that the circumstances of the bombing were so aggravating that no mitigating factor could compensate. Thus, these were case-specific questions seeking to determine what prospective jurors thought of the death penalty in regards to this particular case, rather than the jurors' core value system regarding imposition of the death penalty. Morgan, however, is designed to illuminate a juror's basic beliefs 'regardless of the facts and circumstances of conviction,' Morgan, 504 U.S. at 735, 112 S. Ct. 2222, not to allow defendants to pre-determine jurors' views of the appropriate punishment for the particular crime charged. Morgan does not require that the questions at issue be asked." 153 F.3d at 1208.The Tenth Circuit was satisfied that the district court's safeguards擁ncluding use of a jury questionnaire; appropriate instructions; and abstract life-qualifying questions用rovided defendant adequate opportunity to identify juror bias. 153 F.3d at 1208-09. The majority of federal circuits addressing the issue have adopted the same rationale. See Oken v. Corcoran, 220 F.3d 259, 266 (4th Cir. 2000) (state court's findingPage 161 that abstract voir dire questions addressing prospective jurors' ability to consider life sentence were constitutionally adequate and neither contrary to nor an unreasonable application of Morgan); Trevino v. Johnson, 168 F.3d 173, 183 (5th Cir. 1999) (state trial court's refusal to allow voir dire inquiry on "youth" as a mitigating factor did not give rise to a constitutional violation; Morgan only requires jurors be asked whether they would automatically impose the death penalty upon conviction); McQueen v. Scroggy, 99 F.3d 1302, 1330 (6th Cir. 1996) (abstract, life-and-death qualification questions were sufficient to satisfy constitutional rigor), overruled on other grounds by In re Abdur'Rahman, 392 F.3d 174 (6th Cir. 2004). Several state courts have followed suit. See Hagood v. Alabama, 777 So. 2d 162, 177 (Ala. Crim. App. 1998) ("'"[T]he use of hypothetical questions is of doubtful propriety certainly where one aspect of the putative evidence is singled out to probe for a sympathetic commitment as much as to explore for an impartial mind." [Citation omitted.]. . . On voir dire, "[a] party may not . . . solicit a promise to return a particular verdict."' [Citations omitted.]"); Lucas v. State, 274 Ga. 640, 646, 555 S.E.2d 440 (2001) ("'improper to require the juror to enumerate hypothetical circumstances in which she might or might not vote to impose the death penalty'"); State v. Ball, 824 So. 2d 1089, 1110 (La. 2002) ("[V]oir dire does not encompass unlimited inquiry by defendant into all possible prejudices of prospective jurors, including their opinions on evidence, or its weight, hypothetical questions, or questions of law that call for any prejudgment of supposed facts in the case."); State v. Stanko, 376 S.C. 571, 576-77, 658 S.E.2d 94 (2008) (limiting case-specific voir dire not an abuse of discretion where questionnaire explored potential impartiality and trial court used abstract questions to life qualify jurors); State v. Moeller, 616 N.W.2d 424, 442 (S.D. 2000) ("It was proper for State to use the hypothetical concept of a mental defect or a 15-year-old person to explain the concept of a mitigating factor. However, it would have been improper for it to then ask the potential juror whether he would impose a life sentence or death based upon that hypothetical,Page 162 especially if those were truly the facts of the case. Such a question would be akin to 'staking out' the potential juror's responses, and that is not permitted."); Schmitt v. Commonwealth, 262 Va. 127, 141, 547 S.E.2d 186 (2001) (no abuse of discretion where trial court prevented defense from asking prospective jurors to speculate as to "whether they would automatically impose a death sentence for certain types of killings or under certain hypothetical circumstances"). Again, the very premise of Robinson's argument that Judge Anderson categorically prohibited case-specific questioning is unsupported by the record. As set forth above, Judge Anderson permitted defense counsel to disclose case-specific facts and to inquire whether those facts rendered prospective jurors unable to be impartial or prevented them from meaningfully considering mitigation evidence or a life sentence. Even the minority of courts that have found case-specific questioning to be required under certain circumstances would not take issue with Judge Anderson's rulings. These courts have adopted a balancing approach, finding it improper to categorically deny case-specific questioning but also recognizing that such questioning is not without limits and cannot be used to stake out jurors. These courts have found constitutional requirements to be satisfied as long as prospective jurors are informed of potentially inflammatory case-specific facts and/or the defense is allowed to explore whether such facts render prospective jurors unable to be impartial. See United States v. Wilson, 493 F. Supp. 2d 402, 405 (E.D.N.Y. 2006); United States v. Fell, 372 F. Supp. 2d 766, 769-71 (D. Vt. 2005); United States v. Johnson , 366 F. Supp. 2d 822, 848-49 (N.D. Iowa 2005); People v. Carasi, 44 Cal. 4th 1263, 1285-87, 190 P.3d 616 (2008); People v. Coffman and Marlow, 34 Cal. 4th 1, 46-47, 17 Cal. Rptr. 3d 710, 96 P.3d 30, 82 Cal. Rptr. 3d 265 (2004); Ellington v. State, 292 Ga. 109, 127-28, 735 S.E.2d 736 (2012). Robinson was able to do just that notwithstanding Judge Anderson's rulings.Page 163 Robinson again cites Jackson, 107 Ohio St. 3d 53, where the Ohio Supreme Court held that the trial judge should have informed jurors the victim was a 3-year-old child, which would have elicited more informed responses to abstract questions regarding their impartiality. 107 Ohio St. 3d at 62-65. Judge Anderson not only allowed the defense to inform prospective jurors of case-specific facts, but also gave counsel leeway to explore panelists' impartiality and ability to consider both sentencing options notwithstanding these facts. Jackson does not alter our conclusion. Robinson also relies on Uttecth v. Brown, 551 U.S. 1, 127 S. Ct. 2218, 167 L. Ed. 2d 1014 (2007). However, Uttecth considered whether a trial court properly excused a juror who expressed uncertainty as to his ability to impose a sentence of death. The proper scope of voir dire and the permissibility of case-specific questioning were not issues before the Supreme Court. Uttecth is inapposite. Robinson had the opportunity to formulate his own questions regarding case-specific facts in the questionnaire. During small group voir dire, the defense disclosed sensitive case-specific allegations and probed jurors for potential bias, both in general and specific to sentencing, in response to such facts. Judge Anderson's rulings limited inquiry only when it required prospective jurors to prejudge the penalty issue based on a general description of case-specific facts. Defendant had ample opportunity to identify those unqualified to serve. See People v. Sanders, 11 Cal. 4th 475, 539, 46 Cal. Rptr. 2d 751, 905 P.2d 420 (1995) (no error in trial court's limiting hypothetical questions requiring jurors to provide advisory opinion based on preview of evidence). We find no constitutional violation in Judge Anderson's rulings.Page 164 4. Did scope of voir dire rulings conceal mitigation impairment? Robinson believes Judge Anderson imposed a "blanket prohibition" on case-specific mitigation inquiry, preventing the defense from identifying panelists who were mitigation-impaired, in violation of the Eighth Amendment and Sections 1, 5, 9 and 10 of the Kansas Constitution Bill of Rights. Robinson does not suggest the Kansas Constitution affords him protections beyond those provided under the United States Constitution, and we have so far held that these state constitutional provisions are generally subject to the same analysis as their federal counterparts. See State v. Scott, 265 Kan. 1, Syl. カ 1, 961 P.2d 667 (1998) (Eighth Amendment and Section 9 of the Kansas Constitution Bill of Rights are nearly identical and construed similarly); State ex rel. Tomasic v. City of Kansas City, 237 Kan. 572, 583, 701 P.2d 1314 (1985) (Section 1 of the Kansas Constitution Bill of Rights given same effect as the Equal Protection Clause of the Fourteenth Amendment); State v. Next Door Cinema Corp., 225 Kan. 112, 115, 587 P.2d 326 (1978) (Fourteenth Amendment due process standard applies to state due process challenge under Section 10 of the Kansas Constitution Bill of Rights). As such, we find federal authority on the subject persuasive. Robinson's claim is both legally and factually suspect. First, the majority of federal courts have rejected the view that defendants have a constitutional right to case-specific mitigation questioning during voir dire. United States v. Tipton, 90 F.3d 861, 879 (4th Cir. 1996) (no error in refusing to allow detailed questioning during voir dire concerning specific mitigating factors), cert. denied 520 U.S. 1253 (1997); United States v. McCullah, 76 F.3d 1087, 1113-14 (10th Cir. 1996) (Morgan requires questioning during voir dire regarding whether jurors would automatically impose the death penalty and does not require specific questioning regarding mitigating factors), cert. denied 520 U.S. 1213 (1997); Wilson, 493 F. Supp. 2d at 405 (allowing voir dire on specific types of mitigationPage 165 or aggravation evidence does "not serve the goal of uncovering impermissible bias, but only beg[s] follow-up questions that trend toward stake-out or pre-commitment questions"). Numerous state courts have adopted the same view. People v. Jackson, 182 Ill. 2d 30, 61-62, 695 N.E.2d 391 (1998) (trial court properly refused to ask case-specific questions regarding aggravating and mitigating circumstances; abstract questions regarding jurors' ability to consider both sentencing options satisfied constitutional scrutiny); Evans v. State, 333 Md. 660, 675-77, 637 A.2d 117 (1994) (refusal to allow case-specific questioning on aggravating circumstances consistent with Morgan); Holland v. State, 705 So. 2d 307, 338-39 (Miss. 1997) (jurors cannot be asked to give weight to aggravators during voir dire); Witter v. State, 112 Nev. 908, 915-16, 921 P.2d 886 (1996) (case-specific questions regarding statutory aggravator would have improperly staked out jurors and were not required under Morgan or Witherspoon v. Illinois, 391 U.S. 510, 519-23, 88 S. Ct. 1770, 20 L. Ed. 2d 776 [1968]), cert. denied 520 U.S. 1217 (1997), abrogated on other grounds by Nunnery v. State, 127 Nev. Adv. Op. 69, 263 P.3d 235 (2011); State v. Fletcher, 500 S.E.2d 668, 679 (N.C. 1998) (voir dire questions comparing aggravating and mitigating circumstances improper); State v. Wilson, 74 Ohio St. 3d 381, 386-87, 659 N.E.2d 292 (1996) (Morgan does not require voir dire on specific mitigating circumstances), cert. denied 519 U.S. 845 (1996); Plantz v. State, 1994 OK CR 33, 876 P.2d 268, 279 (Okla. Crim. App. 1994) (trial court properly limited the defense's voir dire on what jurors would consider as mitigation); State v. Hill, 331 S.C. 94, 103-04, 501 S.E.2d 122 (1998) (Morgan does not require voir dire on specific mitigating circumstances). Second, Robinson's characterization of Judge Anderson's rulings as a blanket prohibition on case-specific mitigation questioning is unsupported factually. Robinson highlights Judge Anderson's rulings sustaining the State's objections to defense counsel'sPage 166 questioning of Jurors 115 and 271. In both instances, the district judge prevented defense counsel from asking whether certain types of mitigation would outweigh aggravating circumstances and warrant a life sentence, i.e., staking out the jurors. Judge Anderson clarified that it was appropriate to ask panelists whether they would meaningfully consider a defendant's background, for example, as mitigation, but when defense counsel also asked the prospective juror to compare it to aggravating circumstances and decide whether the mitigation evidence would warrant a life sentence, the inquiry improperly staked out the panelists. These rulings are consistent with the majority of federal and state authority. They also survive scrutiny under the minority view that disclosure of and limited questioning on highly inflammatory case-specific facts may be necessary to identify mitigation-impaired jurors. See, e.g., Carasi, 44 Cal. 4th at 1285-87 (Constitutional requirements satisfied where trial court discloses case-specific facts to jurors before asking if they would automatically vote for life or death.). Judge Anderson allowed the defense to ask panelists if they would consider certain categories of mitigation, and he also allowed the defense to disclose case-specific facts to panelists and inquire if they would still consider mitigation evidence in light of such facts. Robinson relies on United States v. Fell, 372 F. Supp. 2d 766 (D. Vt. 2005), in support of his claim of constitutional error. However, Fell merely recognized that "rather than reject all case-specific questions, a trial court should allow such questions to be asked when they are reasonably directed toward discovering juror bias." 372 F. Supp. 2d at 771. Here, Judge Anderson did not reject all case-specific questions, and nothing in Fell suggests the balance Judge Anderson struck in his rulings violated Robinson's rights under state or federal law. See State v. Kreutzer, 928 S.W.2d 854, 864-65 (Mo. 1996) (court properly limited questioning on specific facts that sought a commitment from jurors)

Outcome: The outcome of this appeal is a testament to Judge Anderson's diligence and commitment to Robinson's fair trial rights. The caution he exercised and the preventative measures he employed were well planned and reasonably calculated to mitigate the risk of extraneous factors influencing the outcome of the guilt phase and penalty phase proceedings. These efforts have facilitated our determination that the sentence of death was not "imposed under the influence of passion, prejudice or any other arbitrary factor"; that the State's lone aggravating circumstance existed; and that Robinson's mitigating circumstances were insufficient to outweigh it. See K.S.A. 21-4627(c)(2). In sum, we affirm Robinson's capital murder conviction charged in Count II. We reverse his capital murder conviction charged in Count III and his first-degree murder conviction charged in Count V as unconstitutionally multiplicitous with the capital murder conviction in Count II. All remaining convictions are affirmed. We affirm Robinson's death sentence under his capital murder conviction in Count II. We vacate only that portion of Robinson's sentence designating certain of his crimes sexually motivated and remand so that the trial court can correct the journal entry. Affirmed in part, reversed in part, vacated in part, and remanded with directions.

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