State of Kansas v. KYLE TREVOR FLACK

Ottawa, Kansas, criminal defense lawyer presented the Defendant charged with first-degree murder, second-degree murder and felony possession of a firearm.



In 2013, Andrew Stout and two friends, including Steven White, lived at Stout's

house in rural Franklin County. Flack, another friend of Stout's, occasionally spent time

there. Flack brought a shotgun with him everywhere, usually keeping it in a black duffel

bag, and even slept with it nearby. Stout was dating K.B. and intended for the friends to

move out by May 1, so she and her 18-month-old daughter, L.B., could move in.

After not hearing from Stout, on May 6, some concerned friends went to his home

to look for him. While checking an outbuilding near the house, they discovered a body

under a tarp, later identified as White. They called 911. Investigators found two more

bodies in the house, later identified as Stout and K.B. The investigators suspected Flack,

who they located in Emporia at a friend's apartment. Officers arrested him shortly after

midnight on May 8, and read him his Miranda rights. They searched the Emporia

apartment, finding a black duffel bag. It contained a shotgun cleaning kit, a roll of duct

tape, and zip ties.

Flack provided his versions of events to detectives twice after his arrest. His story

evolved during those interviews. The first started around 3:30 a.m. on May 8 in Emporia.

By that time, officers had identified White's body in the outbuilding but not the two in the

master bedroom. They considered L.B., the child, to be missing.

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First interview

In what the State depicts as Flack's first of eight versions of events, he claimed to

last see Stout, K.B., and L.B. on April 27 at Stout's house. He said Stout and K.B.

planned to go bowling after Flack and Stout bought cigarettes. Flack claimed they

separated in Pomona, where his friend, Kenneth Douglas, picked him up and drove him

to Emporia.

As details emerged, so did inconsistencies. Flack said he and Stout went to Ottawa

before Pomona. Stout dropped him off at the Pomona Dollar General, and Flack then

went to a nearby cemetery with two women, who later took him to Ottawa. From there,

his stepbrother picked him up, and he slept on the stepbrother's couch that night. He did

nothing the next day, April 28, other than walk around Pomona.

Then, Flack said he went to Emporia on April 29. But before going, his stepfather

dropped him off at Stout's house, where he played video games for a half hour. At that

time, some people stopped by looking for Stout. The stepfather returned and took him to

the Pomona Dollar General, where Douglas picked him up to go to Emporia. Flack said

he stayed with Douglas while there, and he bought a new cellphone after Douglas' kids

broke his old one. He later changed that story, saying he broke the phone himself. He

acknowledged speaking to Stout's mother by both phone and text during this time.

Without prompting, Flack mentioned his shotgun, claiming Stout kept Flack's

1300 Remington in his bedroom closet. He also mentioned buying "PDX Defender"

shotgun shells from Wal-Mart a few months earlier.

Flack also claimed Stout sold marijuana, and every resident at Stout's house used

drugs. When describing White, he said White brought "tweakers" (methamphetamine

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users) to Stout's and that made Stout nervous. The last time Flack saw him, White "was

fuckin' out of his mind, like been up too long, like you could see his eyes all fucking

black and sunk in." Flack got along with White, but he would not call him his "best

friend."

Flack's second version began after Detective Tammy Alexander confronted him

with other witness statements. She told Flack that Douglas denied his kids broke the

phone and said he picked up Flack in Emporia, not Pomona. Alexander told Flack the

victims were shot with a shotgun, and that "Defender" shotgun shells were at the scene;

she noted K.B.'s car was found in Emporia, where Flack had been.

Flack eventually said he was in Emporia to sell drugs. He sold "dope"

(methamphetamine) to a group of Mexicans known as the South Side Lobos. He also

claimed to work for "Omar," a bald-headed Mexican with a 13 tattooed on his chest,

whom he had met in prison. Omar, in turn, introduced Stout to "Chewie," so Chewie

could supply Stout with marijuana for dealing. Omar drove him to Emporia, and from

there Douglas picked him up. Flack appeared to be explaining why he lied about the

place where he met Douglas and attempting to align his story with Douglas'.

Flack then mentioned going to Stout's on April 29 or 30. Finding the door locked

and no one home, he walked to the outbuilding, where he noticed something unnatural

because the dog's bowl was outside and windows left open. In the outbuilding, he saw a

foot hanging out from a tarp. Not knowing what to do, he left the residence.

The conversation returned to Omar, Chewie, and Flack's Emporia business. He

described delivering drugs for Omar right after being dropped off in Emporia. He said

Omar gave him a car, telling him he could use it if needed. Seeing the car's license plate,

Flack told Alexander that in "[t]hat moment I knew it was my ass," because he realized it

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was K.B.'s car. Even though he did not think it could be proven and did not know why

Omar would want to kill Stout, he said, "I guess they did it, but I don't know."

During questioning, Alexander showed Flack a mugshot and asked if he knew the

person. His answer was unclear. Alexander later testified the photo was of a longdeceased person named Omar who had been arrested in Emporia but had never been in

the Hutchison prison while Flack was there. At the end of the Emporia interview,

Alexander asked what happened to L.B. Flack told her "they . . . took the kid," and "the

dude could be a child molester." Officers then transported Flack to Ottawa, where he

rested and ate.

Second interview

The next day in Ottawa, Flack's interview began his third version. In this iteration,

he claimed Omar and Chewie killed Stout and K.B. while Flack was at the house. He did

not see L.B. that day. The murders happened a day or two before the people stopped by

Stout's and found Flack at the house alone.

On the day of the murders, Flack went to Stout's with Omar and Chewie, who

went in, while he stayed outside. Upon hearing a gunshot, he became frightened and fled.

Flack saw Omar and Chewie carry duffel bags from the house. Flack contacted his

stepfather for transportation. Flack spent time in Ottawa and Pomona before going back

to Stout's, getting K.B.'s car, and driving it to Emporia.

Later in the interview, Flack's fourth version emerged, placing himself inside the

house during the murders. According to this account, Omar, Chewie, and Flack were at

Stout's because Stout owed Omar money. All three went into the house, and, once inside,

Omar and Chewie entered Stout's bedroom with Stout and shut the door. Flack heard two

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gunshots and ran out. Outside, he heard additional gunfire. Seeking cover under the front

porch, he witnessed Omar leaving with drugs and a shotgun. After Omar and Chewie left,

Flack discovered Stout's lifeless body in the bedroom under a pile of clothes. He then

took K.B.'s keys from her purse, walked to the outbuilding, and noticed another body

under a tarp. He took K.B.'s car to Ottawa, called Douglas to plan to visit Emporia, and

drove K.B.'s car to Emporia a day or two later.

Up to this point, Flack had not described White's death. That changed with his

fifth version, in which he claimed a "skinny Mexican" killed White. Based on this

version, the day White died, he met with Omar, Chewie, and the Mexican in Ottawa and

they all drove to Stout's. Omar and the Mexican went inside where Stout, K.B., and

White were. Flack and Chewie stayed outside. When Omar and the other man came back

outside, everything seemed fine. Flack thought they would leave, but Omar asked about

guns. Flack brought his shotgun outside, and the group took turns shooting it. White

came out and joined in.

After White fired the gun, he handed it to the Mexican. While the others chatted,

White and the Mexican went to the outbuilding. Flack heard a gunshot. The Mexican

came out and went into the house with Chewie. Three more gunshots were fired. The two

men came back out with a duffel bag, keys, and a wallet. They then drove back to

Ottawa, leaving Flack with K.B.'s car. Omar told him to get rid of the car.

In his sixth version, Flack told detectives he and Stout shot White in mid-April. He

claimed Stout and White argued one day about White living there rent-free. Later that

evening, Stout told Flack he did not know what to do about White. Flack told him, "[J]ust

shoot him." Stout replied, "[I]f I do that[,] I'll have to bury him." Flack told Detective

Jeremi Thompson, "[T]hat's when the joking stopped." The next day, Flack and Stout

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discussed the situation again. Responding to Stout's worry, Flack told him to "just do

whatever you need to do" and that he had Stout's "back."

Not long after that, Stout asked White if he had gotten a job yet, which led to more

bickering. White went outside. Stout grabbed Flack's shotgun, and he and Flack followed

White. Stout shot White, who was in front of a car in the outbuilding. Stout gave Flack

the shotgun. Flack shot White again, which killed him. After hiding the body under a

tarp, the two went inside the house and pondered next steps while smoking marijuana.

Flack's seventh version addressed Stout's murder. Flack said after White's murder,

he got paranoid. He called Omar to see if Omar could help him leave the area. Omar

agreed but insisted on Stout returning the fronted drugs and money first. As a result,

Omar and Chewie came to Stout's to settle up. Once there, Omar and Stout began

arguing. Eventually, Omar shot Stout twice in the back. Flack claimed Omar shot Stout

two more times and then beat him with the shotgun. During the shooting, K.B. laid on the

bed with her hands tied behind her back.

Either Omar or Chewie—Flack could not remember who—thought Flack looked

stressed by what had happened, so they gave him money to buy marijuana. When he

came back, Flack found Stout dead under the clothing pile. He told the detectives Omar

gave him the shotgun and said to get rid of it. He said he broke it down and threw it into a

dumpster in Emporia.

In his eighth version, Flack described what happened to K.B. and L.B. When

Omar killed Stout, K.B. tried to run out of the room. Chewie told Flack to grab her, so he

did. Flack found zip ties in his bag, and Chewie gave him a bandana to silence K.B.

Meanwhile, L.B. entered the room. Chewie took K.B. to the living room, where he raped

her.

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Afterward, Chewie brought K.B. back to the bedroom and forced her to lie face

down on the floor. He shot K.B. with the shotgun. Chewie rolled her over next to Stout.

He and Omar started throwing clothes on the bodies. Then L.B. walked toward her

mother. Chewie shot L.B. in the back and put her into a small suitcase he found in the

bedroom. Omar and Chewie took the suitcase, drugs, and money to the car and left. They

told Flack it was "his problem" to get rid of K.B.'s car and the shotgun. Sitting on the

porch, he called his brother to figure out whether to call the police or run. He drove to

Emporia and stayed with Douglas for a few days.

The interview ended when Flack requested an attorney.

Post-interview investigation

Investigators followed up on Flack's claims he met "Omar" in prison. They

reviewed lists of inmates overlapping his time in prison, producing a few leads, but none

were "Omar." They also reviewed his phone records, identifying most calls and who was

on the other end. No calls were connected to "Omar" or "Chewie."

Emporia's city recycling center found a shotgun receiver and magazine in the trash

and notified police. Forensic testing showed they were from the same gun that fired the

shotgun shells discovered at Stout's.

On May 11, an Osage County sheriff's deputy found debris on a creek bank that

led to locating L.B.'s body, which was contained in a partially submerged black suitcase.

Cell tower data for Flack's phone established that from May 1 until the morning of

May 3, his phone did not move from the general area of Stout's house. Around 10:40

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a.m., May 3, there was a single call attributed to his phone that registered on two towers,

showing Flack was about a mile-and-a-half from where police found L.B.'s body. Later

on May 3, the phone began using towers around Emporia. While there, Flack bought a

new phone, and the data showed him moving around Emporia on May 6 and May 7.

In mid-August, Flack's mother met him in jail, and the visit was recorded. Flack

told his mother, "I'm gonna end up gettin' a lotta time outta this" and "I'm not guilty of all

of it but I'm guilty." Flack also revealed he lied to police: "[D]own the line they're gonna

ask me questions like . . . who else was involved . . . . And unfortunately . . . they didn't

believe my fuckin' story. I tried tellin' 'em . . . some bullshit but they didn't—uh, they

already had so much evidence I guess."

Criminal proceedings

The State charged Flack with the capital murder of K.B. and L.B. in the same

course of conduct, first-degree murder of Stout, first-degree murder of White, criminal

possession of a firearm, and misdemeanor sexual battery of K.B. At arraignment, the

State filed notice of its intent to seek the death penalty based on five aggravators: (1)

Flack was previously convicted of attempted second-degree murder; (2) he knowingly or

purposefully killed more than one person; (3) he committed the crime to avoid or prevent

lawful arrest or prosecution; (4) he killed K.B. in an especially heinous, atrocious, or

cruel manner; and (5) he killed K.B. as a potential witness against him.

During the trial's guilt phase, the State's evidence included what is outlined above.

Its theory was that the murders occurred in large part as Flack described, but it was he,

rather than "Omar" or "Chewie," who performed the acts. Flack did not testify. The jury

found him guilty on all counts except misdemeanor sexual battery. The court accepted the

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verdicts, and the State moved for a separate sentencing proceeding for the jury to

determine whether to impose a death sentence.

During the penalty phase, the State relied on its guilt-phase evidence, as well as

additional evidence. To show K.B. suffered additional mental anguish from being unable

to see, as she was not wearing her glasses at the time of her murder, the State presented

testimony—showing K.B. always needed glasses to see—and surveillance footage of

K.B. wearing glasses on the presumed date of her death. The State also introduced

evidence demonstrating Flack's previous conviction for attempted second-degree murder,

along with the journal entry for his previous conviction.

In mitigation, Flack again did not testify, instead presenting several witnesses,

including an expert on how prisoners might acclimate to prison life; a prison work

supervisor whom Flack successfully worked with in prison; Flack's parole officer, who

knew of no violations he committed since being paroled; and a supervisor at Ottawa

Sanitation, who described Flack as a good employee. He also presented evidence

showing Flack's horrific childhood of neglect and abuse. His friends and family testified

how their lives would be affected if Flack were to receive a death sentence.

Other witnesses—many of whom were experts in mental illness and its

treatment—testified about Flack's mental health struggles, including depression, anxiety,

and hallucinations. His diagnoses include major depressive disorder, schizoaffective

disorder, anxiety disorder, and antisocial personality disorder. His mental health struggles

plagued him in various ways, even to the date of trial, and would likely continue, though

less so in a structured prison environment.

The jury found the second and fourth aggravating factors existed: Flack

knowingly or purposefully murdered K.B. and L.B, and he killed K.B. in an especially

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heinous, atrocious, or cruel manner. It unanimously sentenced him to death. The judge

found "that the aggravating factors totally outweighed any mitigating factors that were

provided and the evidence supports the imposition of the death penalty in this particular

case." See K.S.A. 2012 Supp. 21-6617(f). The court imposed the death penalty.

Flack directly appeals to this court. Jurisdiction is proper. K.S.A. 2022 Supp. 21-

6619(a) (permitting a death sentence to automatic review by and appeal to Supreme

Court).

SUPPRESSION OF FLACK'S POLICE INTERVIEWS

Before both the preliminary hearing and trial, the State sought to admit Flack's

custodial statements to police. The defense argued against admission, claiming he

invoked his right to counsel. The court overruled his objections. Flack now argues he

invoked his right to silence through his repeated requests to be taken to jail, requiring

suppression of anything that followed.

Additional facts

When the State moved to admit Flack's custodial statements for the preliminary

hearing, it submitted testimony from the detectives who interviewed Flack. The court

found the statements voluntary. It also found his alleged requests for counsel were

equivocal and did not require the detectives to end the interview. It underscored the point

by noting Flack knew what he had to do to end the Ottawa interview by plainly stating he

wanted to talk to his attorney. This, the court held, was a clear communication the

detectives "honored."

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At trial, a newly assigned judge took up the renewed motion to admit the custodial

statements for trial purposes. The State presented its witnesses again. Detective

Alexander testified she advised Flack of his Miranda rights at the first interview in

Emporia and had him sign a Miranda form. The transcript reflects his agreement to speak

to the officers:

"[Alexander]: . . . Before you're asked any questions you must be advised and

understand your rights. Number one, you have the right to remain silent. Number two,

anything you say may be used against you in a court of law. Number three, you have the

right to talk to a lawyer and have him with you while you've being questioned. Number

four, if you cannot afford to hire a lawyer, one will be appointed to represent you before

questioning if you wish. Number five, you can decide at any time to exercise these rights

and . . . not answer any questions or make any statements. . . .

"[Flack]: I have read or had read to me a statement of the rights listed above. I

understand what the rights are and I am willing to answer questions before talking to a

lawyer. I do not want a lawyer present during questioning. I understand and know what I

am doing. No promises nor threats of any kind have been made to me and no pressure or

coercion of any kind has been used against me and this statement has been made by me

voluntarily.

"[Alexander]: If you agree to that, I'll have you sign it. All right, Kyle, you said

. . . that you were pissed off. You wanna talk to me about that?

"[Flack]: Yeah.

"[Alexander]: What are you pissed off about?

"[Flack]: 'Cause I wanna know what happened to my friend.'" (Emphases

added.)

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Alexander testified she did not perceive any of his statements during the Emporia

interview as invoking his rights. She agreed that a suspect saying, "[T]ake me to jail[.]

I'm done, I'm tired of you asking the same questions," was different from asking for a

lawyer.

Detective Thompson testified he did not perceive Flack's statement—"'Should I

get a lawyer honestly?'"—as a request for an attorney. Instead, he took it as asking

Thompson's "opinion on what he should do." Thompson told Flack he "could not give

him legal advice." And when Flack told Thompson, "I can't tell you no more, so either do

whatever you do or I need an attorney or something because I can't tell you what I don't

fucking know," the detective took it as an "ultimatum" when Flack became frustrated

with questioning. He testified that was a consistent pattern throughout questioning:

"[A]nytime we began asking questions in regard to [L.B.], he became upset. Visibly his

face would turn red. He would clinch his fists, a couple times he hit the table."

Thompson noted the Ottawa interview ended when Flack said he could not talk to

the detective anymore and wanted his attorney. This remark, Thompson viewed, was

different because Flack's earlier mentions of an attorney were followed up by him quickly

saying he wanted to help and wanted to talk to the detectives.

The court admitted the custodial statements over the defense objection, finding

them voluntary. It also determined Flack's statements, "'[s]hould I get a lawyer

honestly?'" and "either do whatever you do or I need an attorney . . . because I can't tell

you what I don't know," were equivocal and did not invoke the right to counsel.

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Preservation

Flack now frames his remarks—i.e., demanding to be taken to jail—as an

invocation of his right to remain silent rather than the right to counsel. Generally, "[a]

party may not object to the introduction of testimony on one ground at trial and assert

another ground on appeal." State v. Green, 315 Kan. 178, 183, 505 P.3d 377 (2022). But

in death penalty cases, K.S.A. 2022 Supp. 21-6619(b) mandates that "we consider any

errors the parties raise on appeal, whether preserved for review or not." State v. Cheever,

295 Kan. 229, 241, 284 P.3d 1007 (2012), vacated and remanded on other grounds 571

U.S. 87, 134 S. Ct. 596, 187 L. Ed. 2d 519 (2013).

Standard of review

We are at a bit of a disadvantage in this appeal. Had Flack argued the right-toremain-silent issue before the district court, we would apply a bifurcated standard of

review. See State v. Aguirre, 301 Kan. 950, 954-55, 349 P.3d 1245 (2015) (district court's

factual finding reviewed for substantial competent evidence and its legal conclusion de

novo). But he did not, and the district court's factual findings about voluntariness and

invocation of his right to counsel minimally assist our appellate review. Regardless, the

record includes the interviews' video clips and transcripts, so we can proceed. See State v.

Kleypas, 272 Kan. 894, Syl. ¶ 5, 40 P.3d 139 (2001) (Kleypas I) ("When the facts

material to a decision of the court on a motion to suppress evidence are not in dispute, the

question of whether to suppress becomes a question of law. An appellate court's scope of

review on questions of law is unlimited."), overruled in part on other grounds by State v.

Marsh, 278 Kan. 520, 102 P.3d 445 (2004), rev'd on other grounds by 548 U.S. 163, 169-

73, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006); see also State v. Hanke, 307 Kan. 823,

827, 415 P.3d 966 (2018) (When the material facts supporting a district court's decision

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on a motion to suppress evidence are not in dispute, the ultimate question of whether to

suppress is a question of law over which an appellate court has unlimited review.).

Discussion

An accused's right to remain silent during a custodial police interview arises under

both the Fifth Amendment to the United States Constitution and section 10 of the Kansas

Constitution Bill of Rights. Aguirre, 301 Kan. at 954. A suspect's invocation of the "'right

to remain silent must be scrupulously honored and cuts off further interrogation.'" 301

Kan. at 954. But law enforcement officers' duty to "scrupulously honor" a suspect's

decision to invoke their right requires the suspect's clear communication without any

ambiguity or equivocation. 301 Kan. at 957. Such an invocation requires context, as "an

invocation that is ambiguous by itself may be unambiguous when considered in

conjunction with the statements or events preceding it." United States v. Cordier, 224 F.

Supp. 3d 835, 840 (D.S.D. 2016) (relying on Smith v. Illinois, 469 U.S. 91, 105 S. Ct.

490, 83 L. Ed. 2d 488 [1984]).

Another difficulty arises because Flack does not rely on any single statement as

the invocation of his right. Instead, he argues various statements to take him to jail

aggregated unambiguously to invoke his right to remain silent. He says his "intention to

end the questioning was equally clear as he became progressively more insistent that the

questioning stop and that he be taken to jail." But "it is not his intent that matters; it is

whether his statement would have been unambiguous to a reasonable officer." Lopez v.

Janda, 742 Fed. Appx. 211, 214 (9th Cir. 2018) (unpublished opinion). In other words,

the issue is whether his communication was unambiguous to a reasonable officer, not just

him. See Aguirre, 301 Kan. at 957 (a reasonable officer's understanding matters).

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Going back to the record, Flack made his remarks over about 45 minutes, with

most falling during an 18-minute span, when he grew increasingly agitated as detectives

were hesitant to believe him and countered his story with other evidence. He grew

particularly angry when they pressed him about the child's location, despite him denying

he knew anything. We address each comment below with its relevant context.

His first remark expresses his frustration at the detectives' refusal to believe him.

"[Alexander]: . . . We have your dad who's sayin' something totally different

than what you did.

"[Flack]: . . . What did he supposedly say that's different than me?

. . . .

"[Alexander]: That all the times you're sayin' you were with him is not the case.

"[Flack]: All right, whatever, so apparently we're at a stalemate so do I put these

back on and you take me somewhere or what's the deal?" (Emphasis added.)

This plainly fails to invoke a right to remain silent. Flack merely acknowledges his

version differed from his father's, and the detectives were free to not believe him. His

second comment was no different.

"I didn't do it at all. Think I'd kill my fuckin' friends? Kidnapping some fuckin'

baby, take me to jail. . . . Put these motherfuckers on me, take me where you need to do

. . . . But I didn't kill my fuckin' friends. I didn't kill them fuckin' people and I didn't

fuckin' take no baby." (Emphasis added.)

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Like the first statement, Flack simply told Alexander she could believe he killed

the victims, claiming his innocence. His requests to be taken to jail after an impasse in

questioning were too ambiguous to invoke the right to silence. See, e.g., State v. Speed,

265 Kan. 26, 37, 961 P.2d 13 (1998) ("'And since we're not getting anywhere I just ask

you guys to go ahead and get this over with and go ahead and lock me up and let me go

and deal with Sedgwick County, I'm ready to go to Sedgwick County, let's go.'"); Bullitt

v. Commonwealth, 595 S.W.3d 106, 116-17 (Ky. 2019) (holding the defendant's

statement—"[I]f I'm going to jail, I'm saying, let's go, you know, that's all I'm saying, sir.

I'm innocent, I'm innocent."—did not invoke the right to silence).

His next three comments followed that same pattern, and all convey he lacked an

answer for the detective.

"[Alexander]: Where would we go to find [L.B.]?

"[Flack]: How the fuck should I know?

"[Alexander]: 'Cause you're the only one that does.

"[Flack]: You know what? [Third comment] Put these on.

"[Alexander]: You're the only—

"[Flack]: Hey—no—

"[Alexander]: —one that knows.

"[Flack]: —I ain't. I keep fuckin' tellin' you I don't know where the fuckin' baby

is.

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. . . .

"[Alexander]: Who do we talk to?

. . . .

"[Flack]: How the—I do not know. . . . I only speak one fuckin' language here. I

don't know where that baby is. I don't know what happened at that fuckin' house. But

apparently you guys got it all sewed up. So do whatever we're doin'. Because I can keep

tellin' ya the same fuckin' thing and you're gonna keep fuckin' the same thing. . . .

"[Alexander]: Where was she left?

"[Flack]: I don't fuckin' know. [Fourth comment] Goddamn, quit—

. . . .

"[Alexander]: . . . Who the fuck do we talk to, Kyle?

"[Flack]: I don't fuckin' know. You know what? [Fifth comment] Wrap these up,

take me to fuckin' jail because obviously you're just gonna keep fuckin' goin' so I can't

give ya information I don't fuckin' have so do what you do." (Emphases added.)

Flack got heated and made these comments as Alexander asked about the child's

whereabouts. The third remark was a dramatic gesture, not a substantive cutting off of

questioning. The fourth was so brief; it was inscrutable. And the fifth appears to be

another "take me to jail" statement, "because . . . I can't give ya information I don't

fuckin' have so do what you do." (Emphases added.) Flack was communicating if the

officers keep asking questions he could not answer, they should just charge him. But,

taken together or separately, he does not unambiguously invoke his right to remain silent.

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A few minutes later, the detectives encountered strong resistance when asking

Flack why he was in Emporia. In this context, Flack made his sixth alleged invocation:

"You wanna . . . fuckin' take me to jail, charge me, whatever, I—we done sat here and

fuckin' talked about it, okay? It's that simple." But again, he did not clearly state to stop

the interview. Instead, he expressed frustration the officers were unwilling to trust him.

The final four remarks occurred when Alexander asked for detail about his

Emporia business involving "some Mexicans."

"[Alexander]: Who were you selling dope to?

"[Flack]: Some Mexicans.

"[Alexander]: What are their names?

"[Flack]: I don't know their fuckin' names.

"[Alexander]: Where do they live?

"[Flack]: I don't know where they live. I meet 'em on the fuckin' south side, at

fuckin' at Saint Pablo Park.

"[Alexander]: Okay what do they drive?

"[Flack]: [Seventh comment] Take me to jail.

"[Alexander]: What do they drive?

"[Flack]: Drive—[Eighth comment] take me to jail man. . . .

"[Alexander]: What are their phone numbers?

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"[Flack]: [Ninth comment] Take me to jail.

"[Alexander]: Kyle, this is your opportunity to help yourself.

"[Flack]: How am I helpin' myself? You made your mind up.

"[Detective Bob Moews]: No we haven't. That's why we're tryin' to ask you

about these people.

"[Flack]: What do you want me to tell you? A bunch of fuckin' Mexicans.

They're called SSLs, South Side Lobos. . . .

"[Alexander]: What do you sell them?

"[Flack]: Meth. . . .

"[Alexander]: How much was this time?

"[Flack]: Two pounds.

. . . .

"[Alexander]: Who do you deliver for?

"[Flack]: [Tenth comment] Take me to jail. . . .

"[Alexander]: Okay, Kyle let's help yourself, okay?

"[Flack]: There is no help myself. . . .

. . . .

22

"[Alexander]: All right, then let's—help out, okay?

"[Flack]: I don't know the fuckin' people. . . . [T]hey just contact me, tell me to

pick it up." (Emphases added.)

Flack's comments here—"What do you want me to tell you?"—and his

statement—"I don't know the fuckin' people"—lead to a reasonable inference Flack

meant "I don't know," rather than invoking his right to remain silent. As the State

correctly argues, his claimed invocations were "amenable to a variety of interpretations"

or "an expression of frustration and anger," "a recognition of his difficult predicament,"

"a hyperbolic effort to bolster his own credibility and convince the detectives that he was

telling the truth," and "a negotiating tactic . . . intended to shape the investigator's

interrogation more favorably to him." In context, these comments show Flack believed

the questioning about what happened at Stout's house was irrelevant, rather than

exercising a constitutional right. He simply claimed the detectives had already made up

their minds about his involvement in these deaths, including their belief he could help

them find the child.

Under the circumstances, Flack's "take me to jail" comments lead to multiple

interpretations—rendering his communication unclear. Flack had experience with police

interviews; read the Miranda form, which stated with particularity "you have the right to

remain silent," and "you can decide at any time to exercise these rights and . . . not

answer any questions or make any statements"; affirmatively stated he understood his

rights; and told the detectives he would answer their questions.

We hold Flack did not invoke his right to remain silent by repeatedly suggesting

he be taken to jail. Isolated or combined, his statements did not unambiguously and

unequivocally assert his right to silence. See People v. Davis, 46 Cal. 4th 539, 587-88, 94

23

Cal. Rptr. 3d 322, 208 P.3d 78 (2009) (holding defendant's statement—"'Well then book

me and let's get a lawyer and let's go for it, you know'"—was a challenge to interrogators

that defendant employed as interrogation technique, not a means to invoke right to

counsel or silence; contrasting these comments with statements later in interrogation,

"'get me a lawyer'" and "'it's over and [he was] done'" answering questions, that

constituted a valid invocation); Ridley v. State, 290 Ga. 798, 801-02, 725 S.E.2d 223

(2012) (holding "take me on to jail" did not unequivocally invoke the right to silence);

State v. Waloke, 835 N.W.2d 105, 112 (S.D. 2013) (rejecting the defendant invoked her

right to silence by stating, "officers should just take her to jail" as she did not explicitly

say she wanted to remain silent or did not want to speak with police anymore); State v.

Cummings, 357 Wis. 2d 1, 24, 850 N.W.2d 915 (2014) (holding "'take me to my cell.

Why waste your time?'" in context not unequivocal invocation); Kirk v. Carroll, 243 F.

Supp. 2d 125, 132 (D. Del. 2003) (denying habeas relief, reasoning Delaware state court

conclusions that, "'Just take me away, please. Take me away,'" and "'Just take me the

fuck away,'" were not clear invocations of right to silence was not contrary to clearly

established federal law); Bird v. Brigano, 295 Fed. Appx. 36, 38 (6th Cir. 2008)

(unpublished opinion) (analyzing two exchanges during interview, first Bird said "'there's

no sense me sitting here trying to say what happened with me . . . because as usual, when

it comes to Derrick Bird, he's guilty'" and then stood up and said, "'You take me in; get

booked, man,'" and second in response to detective explaining this is your chance to talk

Bird said, "'Everything's right there in the paper. I'm done talking about it'"; holding

neither were unequivocal invocations of right to remain silent when viewed in context).

The district court properly admitted his custodial statements.

24

FLACK'S RIGHT TO PRESENT A DEFENSE

Throughout Flack's case, defense counsel expressed concern they would not be

prepared for trial. That concern became especially acute after his original counsel

withdrew in 2015. In response, the court continued the proceedings until the following

spring. Despite that, the defense requested another continuance and repeated such

requests through the pretrial proceedings.

Now, on appeal, Flack asserts the district court's scheduling orders violated his

Sixth Amendment due process right to present a defense, his corresponding rights under

sections 5 and 10 of the Kansas Constitution Bill of Rights, and finally his statutory rights

under K.S.A. 22-3406 (reasonable time to prepare for trial) and K.S.A. 22-3401

(continuances for good cause). From this, we discern two lines for analysis. First, he

statutorily argues the district court abused its discretion by denying persistent

continuance requests. Second, he constitutionally asserts a due process denial under the

federal and state Constitutions. We reject these claims.

Additional facts

Flack's court-appointed defense team changed during pretrial when his initial lead

attorney withdrew in July 2015 and had to be replaced. Flack moved to continue the trial,

claiming the defense will not be prepared for a September trial and asked to postpone

until next year. The court granted the motion and continued the trial to February 22,

2016.

In November 2015, defense counsel filed a second motion to continue trial.

Counsel argued the team's difficulty replacing the original attorney created a deficiency

that could compromise Flack's right to counsel. The team further noted it lacked

25

sufficient time to review discovery and the complete investigation based on ABA

Guidelines. See American Bar Association, American Bar Association Guidelines for the

Appointment and Performance of Defense Counsel in Death Penalty Cases, 31 Hofstra L.

Rev. 913, 920 (2003). The team indicated it was still developing its mitigation case. It

had identified family members central to Flack's "social history" but had not yet

interviewed them; some were out of state, while others were unwilling to meet with

defense counsel. It had hired experts in childhood development, forensic psychiatry, and

prison adjustment, but the interviews were pending. And it was still collecting school,

medical, and psychiatric records. Finally, the team said its heavy caseloads were already

hard to manage and would be compounded by the holidays.

The court heard the motion in late November ex parte and in camera. It

acknowledged the team's difficulties but pointed out the case had been pending for about

two years. Expressing frustration with the apparent lack of progress, it denied the request

without the State's input as it was skeptical more time would materially aid the defense.

In January 2016, the defense renewed its motion, which was again heard by the

court ex parte, in camera. Defense counsel reiterated the same concerns but highlighted

the need for a neuropsychologist to examine Flack and testify during the penalty phase.

The court denied the motion and pushed the defense to retain an expert. It asked the

defense to file a new continuance motion "to clarify a little more succinctly the particular

issues that prohibit you in proceeding." It said it would revisit the issue the next week.

When voir dire began the following week, the defense filed its third continuance

motion. The court heard the motion in camera after that day's questioning. Defense

counsel reiterated their concerns and noted the defense team had lost its administrative

support. The court systematically worked through the concerns, focusing especially on

the efforts to retain experts. It said, "[C]ertain issues . . . should have been taken care of

26

quite [some time] ago." It perceived the defense's concerns as mainly being mitigation

preparation and asked the defense to push forward over the two weeks remaining before

the scheduled opening statements. It also advised the defense to continue preparing its

mitigation case during the guilt phase.

Toward the end of the week, the court returned to the continuance motion. By that

time, the defense had retained a neuropsychologist to begin work within a few weeks and

would take about a week to finish. The parties discussed a plan to push back the guilt

phase to accommodate the expert and proposed the court complete voir dire and conduct

jury selection by February 17. The guilt phase would be pushed back to March 7, and the

penalty phase to March 28. The court agreed, and the trial proceeded on that schedule.

But when the trial began, defense counsel asked for further postponement, saying only

"[w]e believe we've litigated this issue thoroughly." The court denied the request.

Statutory challenge—a reasonable time to prepare for trial

We review continuance denials for abuse of discretion. A court abuses its

discretion when its action is unreasonable or based on an error of law or fact. The party

asserting an abuse of discretion must demonstrate it. State v. Hillard, 315 Kan. 732, 760,

511 P.3d 883 (2022). Here, Flack does not claim the district court erred based on an error

of law or fact; our focus is whether the district court erred by acting unreasonably.

K.S.A. 22-3401 requires all persons charged with a crime to be tried without

unnecessary delay and, at the same time, allows a district court to continue proceedings

when good cause is shown. In addition, K.S.A. 22-3406 entitles a defendant to "a

reasonable time to prepare for trial." Flack alleges he was denied a reasonable time to

prepare his case.

27

The ABA Guidelines thoroughly outline recommendations for defense counsel's

duties in all aspects of death penalty cases. Flack relies almost exclusively on the

guidelines and argues those obligations made his case especially time consuming,

justifying his requested continuances. Generally, capital cases have "extraordinary

complexity and demands" compared to noncapital cases. ABA Guidelines, 31 Hofstra L.

Rev. at 921. For example, capital cases increase defense counsel's obligations to

investigate mitigators. See generally 31 Hofstra L. Rev. at 924-28. In addition, counsel

should "at all stages of the case . . . make every appropriate effort to establish a

relationship of trust with the client, and should maintain close contact with the client."

ABA Guideline 10.5. Counsel also must "conduct thorough and independent

investigations relating to the issues of both guilt and penalty." ABA Guideline 10.7(A).

And counsel must consider and assert all potential legal claims at both the guilt and

penalty phases and each claim's costs and benefits. ABA Guideline 10.8.

The ABA Guidelines are a relevant guidepost for evaluating an ineffective

assistance of counsel claim in a capital case, but they are not "coextensive with

constitutional requirements." State v. Cheatham, 296 Kan. 417, 433, 292 P.3d 318

(2013). The guidelines and their comments are useful to gauge what is "a reasonable time

to prepare for trial" under K.S.A. 22-3406, and how a district court should exercise

discretion when deciding whether to grant a continuance. The concern is not whether

counsel satisfied the guidelines, but rather whether, in considering various circumstances

presented in a particular case, including the guidelines, the district court gave the defense

reasonable time to prepare for trial. Granted, the guidelines can contextualize the

problems facing capital defense counsel, but caselaw ultimately governs whether a

continuance denial rises to an abuse of discretion.

In State v. Robinson, 303 Kan. 11, 363 P.3d 875 (2015), disapproved of on other

grounds by State v. Cheever, 306 Kan. 760, 402 P.3d 1126 (2017), for example, we found

28

no abuse of discretion in a district court's denial of continuances in a capital murder case

after comparing it to other similar cases. See 303 Kan. at 92-93 (listing cases). There, we

acknowledged retained counsel's withdrawal "certainly increased appointed counsel's

workload and responsibility" but noted "they were not starting from scratch." 303 Kan. at

92. At the time of the withdrawal, counsel had been working for seven months. And the

district judge granted Robinson a continuance, giving newly appointed counsel another

seven months to prepare. "Appointed counsel also had the benefit of the preparation

[prior counsel] had done over the course of nearly 2 years." 303 Kan. at 92. The Robinson

court held "the district judge properly exercised his lawful discretion by refusing requests

for a second continuance to prepare the guilt phase defense," reasoning a reasonable factfinder could have agreed with that ruling. 303 Kan. at 93; see also State v. Green, 315

Kan. 178, 179-80, 505 P.3d 377 (2022) ("A court abuses its discretion if its action . . . 'is

. . . unreasonable, i.e., if no reasonable person would have taken the view adopted by the

trial court.'").

In Flack's case, almost two years and 10 months elapsed between his initial

counsel entering an appearance and trial. Nearly two years passed between his second

counsel entering an appearance and trial, and almost a full year passed between his third

counsel entering her appearance and trial. Initial and second counsel worked together for

about one year and three months, and the remaining counsel worked together for about

250 days before trial after initial counsel retired in July 2015.

The first continuance request relied on the ABA Guidelines and focused on initial

counsel's withdrawal, remaining counsel's other caseload and inexperience in capital

cases, the volume of discovery to review, and the need to retain expert witnesses. The

court granted the continuance, mostly based on the original counsel's withdrawal.

29

Flack requested a second continuance so counsel could provide Flack "with the

high-quality legal representation contemplated under prevailing Constitutional and

professional standards." The motion again cited the ABA Guidelines and highlighted

defense counsel's independent duty to investigate. The defense noted it had recently

received "20,000 pages and 500 discs" of discovery and "more than 100 scientific

reports" from the State. They were also waiting on their own experts' reports. The court

deferred ruling and asked the defense to push forward and keep it apprised of problems as

they arose.

The third continuance remained much the same as the second. The defense filed it

at the court's request during voir dire to reflect the previously raised issues' status. The

defense was still reviewing and synthesizing discovery and conducting its investigation.

But the most pressing issue was securing a neuropsychologist, which the defense did on

February 4. The court, with the State's agreement, pushed the trial's start date from

February 22 to March 7 to allow the expert to evaluate Flack.

We discern no abuse of discretion in denying the second and third continuance

requests. As in Robinson, Flack's initial counsel was a single member of a three-counsel

team. He left second counsel with over a year on the case and a third counsel who joined

the team a few months earlier. Similarly, original counsel's withdrawal did not require the

team to start from scratch. Recognizing second counsel could not just pick up where

original counsel left off, the court granted a continuance of several months. As to the

second request, the court pushed the defense to make progress and pointedly questioned

what aspects were challenging. Over the next months, the outstanding tasks narrowed,

even as the defense continued to press for postponement. The largest obstacle, needing a

neuropsychologist, became clear as trial approached, and the court granted a short

continuance.

30

Throughout this process, the record reflects the court seriously considered the

defense's concerns and worked to address them as they arose. It reasonably handled the

case and did not abuse its discretion.

Constitutional challenge—right to present a defense

Flack argues the denial of his second and third continuance requests violated his

right to present a defense under the Sixth Amendment to the United States Constitution

and under sections 5 and 10 of the Kansas Constitution Bill of Rights. We reject these

arguments.

The Sixth Amendment states: "[T]he accused shall enjoy the right to a speedy and

public trial, by an impartial jury . . . ; to be confronted with the witnesses against him; to

have compulsory process for obtaining witnesses in his favor, and to have the Assistance

of Counsel for his defence." Section 5 declares: "The right of trial by jury shall be

inviolate." And section 10 "allow[s]" the accused to

"appear and defend in person, or by counsel; to demand the nature and cause of the

accusation against him; to meet the witness face to face, and to have compulsory process

to compel the attendance of the witnesses in his behalf, and a speedy public trial by an

impartial jury . . . . No person shall be a witness against himself, or be twice put in

jeopardy for the same offense."

The phrase "right to present a defense" is a blanket term for a collection of a

defendant's rights, including a right to present evidence on his or her own behalf. See

State v. Carr, 300 Kan. 1, 207-08, 331 P.3d 544 (2014) (R. Carr I) (discussing nature of

"right to present a defense," focusing on rules for excluding evidence and right to present

theory of defense), rev'd and remanded on other grounds 577 U.S. 108, 136 S. Ct. 633,

31

193 L. Ed. 2d 535 (2016); United States v. Markey, 393 F.3d 1132, 1135 (10th Cir. 2004)

(a defendant's "right to present a defense" refers to the collective rights "to testify, present

witnesses in his own defense, and to cross-examine witnesses against him" rooted in the

Fifth and Sixth Amendments). In some contexts, a continuance denial may implicate

rights under the umbrella of "right to present a defense." See Morris v. Slappy, 461 U.S.

1, 11-12, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983) ("[A]rbitrary 'insistence upon

expeditiousness in the face of a justifiable request for delay' violates the right to the

assistance of counsel.").

The United States Supreme Court provides a "continuance is traditionally within

the discretion of the trial judge." Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 11

L. Ed. 2d 921 (1964). When a request is reasonable, a continuance denial may

"myopic[ally] insist[] upon expeditiousness . . . render[ing] the right to defend with

counsel an empty formality." 376 U.S. at 589. The Court conceded, "There are no

mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate

[the accused's constitutional rights]," but it noted, "The answer must be found in the

circumstances present in every case, particularly in the reasons presented to the trial

judge at the time the request is denied." 376 U.S. at 589.

We review a continuance denial's possible interference with the right to present a

defense de novo. See Robinson, 303 Kan. at 85. Like the Ungar Court found the answer

in the circumstances, we examine various factors present in a particular case. In State v.

Anthony, 257 Kan. 1003, 898 P.2d 1109 (1995), a defendant contended the trial court

denied him his right to retain chosen counsel by failing to grant a continuance so that his

retained counsel could prepare for his case. When rejecting his constitutional claim, the

Anthony court considered several factors, including whether other continuances have

been granted; whether legitimate reasons were shown to postpone trial; and whether

denial of the continuance would prejudice the defendant. The Anthony court held the trial

32

court did not abuse its discretion in denying a continuance in which the sole reason for

the continuance was to permit new counsel to enter his appearance. 257 Kan. at 1019.

Here, the trial began some eight months after his original counsel withdrew, and Flack

proceeded with the same appointed counsel team he had all along. Moreover, the district

court gave counsel reasonable time to prepare a capital case given the defense team's

relative continuity and the total time available.

We hold the district court's handling of continuance requests did not violate

Flack's Sixth Amendment right to present a defense or his rights under sections 5 and 10

of the Kansas Constitution Bill of Rights.

DENIAL OF FOR-CAUSE CHALLENGES TO SITTING JURORS

Throughout voir dire, the district court denied several defense for-cause challenges

to selected jury members. These challenges questioned prospective jurors' predisposition

to the death penalty. Some challenged members joined the 20 jurors and alternates who

heard the case, and some of those joined the 12 who convicted Flack and sentenced him

to death. On appeal, Flack argues the district court committed reversible error by denying

his challenges. Again, we disagree.

Additional facts

When voir dire began, the court separated prospective jurors into six panels. It

questioned two panels per day over nine days to reduce the initial group from which the

parties could exercise peremptory challenges. Each party received 20 peremptory

challenges to produce a final jury of 20, including eight alternates.

33

During peremptory challenges, defense counsel asked for "extra strikes" because

the court denied so many of the defense's for-cause challenges. The court ruled this was

premature since the defense had not yet exhausted all of its peremptory strikes. After

exercising its seventeenth peremptory challenge, the defense renewed its request for more

strikes. The State opposed this for two reasons. First, the defense still had some

peremptory strikes. Second, procedurally it was unclear where the new strikes would

come from because alternate jurors were necessary. The court denied the request,

reasoning the defense had already struck the only juror who was arguably "automatic

death." The defense then formally objected to the 20 selected jurors' composition. The

court randomly selected alternate jurors but did not disclose to the jury who it selected

until deliberations.

When trial began, the court released three jurors after each raised an issue,

bringing the jury down to 17. Before deliberations, the court named the alternates, and

the 12 primary jurors deliberated and ultimately entered guilty verdicts.

Prior to the penalty phase, the court conducted a second voir dire at the defense's

pretrial request to determine whether any jurors, including the alternates, had reached an

opinion on a death sentence. The jurors were questioned individually, outside the

presence of the others. The court asked five questions and then allowed follow-up

questions by the State and defense.

Juror J.B.'s responses during questioning raised concerns when he expressed

reluctance to change his mind about imposing the death penalty. While claiming he

would follow the law and consider all mitigating circumstances, his skepticism persisted.

After questioning the other jurors, the defense asked to remove two potential jurors,

including J.B. Given J.B.'s role as part of the 12-member jury that convicted Flack, the

court removed J.B. But it retained the other juror as being an alternate.

34

On appeal, Flack lists 18 potential jurors denied a for-cause challenge. But Flack

used peremptory challenges to remove 16 of those 18.

Standard of review

We review for-cause juror challenges for an abuse of discretion because the trial

judge is better positioned to make the ruling. Robinson, 303 Kan. at 154. "Appellate

courts have traditionally accorded a great deal of deference to a trial court's ruling on a

juror challenge for cause." State v. Miller, 308 Kan. 1119, 1138, 427 P.3d 907 (2018).

Discussion

K.S.A. 22-3410(1) permits a party to "challenge any prospective juror for cause."

Among the nine grounds listed in K.S.A. 22-3410(2) is: "(i) His state of mind with

reference to the case or any of the parties is such that the court determines there is doubt

that he can act impartially and without prejudice to the substantial rights of any party." In

death penalty cases, prospective jurors may be excluded when their views on the death

penalty "would 'prevent or substantially impair the performance of his duties as a juror.'"

Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985). This

applies whether the challenge is directed at death-leaning or life-leaning jurors. R. Carr I,

300 Kan. 1, Syl. ¶ 20. The pertinent question for our appellate review is not whether we

agree with the district judge's ruling but, instead, whether the record fairly supports its

ruling. Robinson, 303 Kan. at 155.

Of the 18 jurors Flack discusses, only M.F. and J.H. ended up as jurors. And as the

State correctly notes, the relevant question is whether the seated jurors prejudiced Flack.

See Miller, 308 Kan. at 1138 (failing to excuse a juror for cause requires conviction

35

reversal only when the defendant demonstrates he or she was prejudiced as a result).

Even if a defendant was compelled to use peremptory challenges "to correct erroneous

for-cause rulings," it is a nonissue absent the defendant showing the sitting jury was

prejudiced. 308 Kan. at 1139. Flack, as the party asserting the error, bears the burden of

establishing the denial of a for-cause challenge constituted an abuse of discretion and

resulted in prejudice. 308 Kan. at 1138.

Juror M.F.

During the State's initial voir dire, the prosecutor asked M.F. about her general

views on the death penalty. In the past, M.F. strongly supported the death penalty without

much knowledge. But after working for a judge who opposed it, she reevaluated her

stance. She said the judge told her that "many people are in prison that later they're found

not guilty." She then noted, "I need to be open to hearing all of the information and

understanding the whole story before I can say strongly one way or the other."

During defense questioning, M.F. said she would consider factors such as the

degree of the childhood abuse or the mental illness, as well as a person's adaptability to

prison, as potential mitigating circumstances. But she "need[ed] more information to

make a decision." Counsel further asked about her shifting death penalty views. She

reiterated, "I don't feel strongly one way or the other about the death penalty. But it

definitely is going to have to be very clear [that the defendant is guilty.]"

In her questionnaire, M.F. suggested childhood experience "plays a huge role" but

should not affect capital sentencing. She believed individuals must take responsibility for

their choices and must not blame others. M.F. noted she would consider factors "more

serious than [abuse or unloved]" necessary to warrant capital punishment.

36

The defense challenged M.F. for cause, focusing on her questionnaire response

suggesting the death penalty was appropriate in a multiple victim case "if there's

absolutely no question about [the] person's guilt." She "equivocate[d]" in her written

responses about her beliefs and opinions on the death penalty, which defense counsel

claimed made it "hard to draw out any information what her thoughts are." The defense

characterized her responses as "it depends." Counsel argued M.F. conveyed believing

people must take personal responsibility for their actions created a "mitigation

impairment with her." Ultimately, "there's a doubt that she could be impartial."

The court rejected this, reasoning M.F. appeared to be more favorable to the

defense than some jurors the defense previously challenged. M.F. affirmed she had not

formed an opinion on Flack's guilt from media or pretrial sources. The court emphasized

her evolving beliefs about the death penalty and her "conscientious" approach, expressing

faith in her ability to be fair, impartial, and law-abiding at sentencing.

In his brief, Flack argues M.F. dismissed the importance of extreme childhood

experiences and said mercy would play no role in her penalty decision. He contends her

stance, even after agreeing to follow the law, is "devastating" to a fair penalty trial, as her

"willingness to follow the law does not prevent long held biases from affecting a

verdict."

But contrary to Flack's contention, during voir dire, M.F. consistently expressed

she could not definitively answer how various factors would weigh in her decisionmaking process without knowing more. She clarified her questionnaire response,

explaining that while she would not be swayed by typical childhood traumas, she would

consider more serious circumstances. The record shows M.F. was open to mitigation

evidence, and her reservation about childhood experiences pertains more to their abstract

persuasiveness rather than a complete rejection.

37

Finally, Flack seemingly argues a juror is biased if he or she is unwilling to rely on

the nebulous concept of mercy alone for mitigation. But he cites no support for this. As

Justice Scalia once noted, "what one juror might consider mitigating another might not.

And of course the ultimate question whether mitigating circumstances outweigh

aggravating circumstances is mostly a question of mercy—the quality of which, as we

know, is not strained." Kansas v. Carr, 577 U.S. 108, 119, 136 S. Ct. 633, 193 L. Ed. 2d

535 (2016). So even if M.F. said "mercy"—a concept she equated with "pity" during voir

dire—should not be considered on her questionnaire, she remained willing to consider the

various circumstances in Flack's case before reaching a decision.

Rather than showing a preformed bias favoring the death penalty, M.F.'s voir dire

responses consistently reflected a willingness to wait and see the evidence before

deciding, which is exactly what a juror should do. The court scrutinized her qualifications

and outlined its reasons why she was a qualified juror. As it pointed out, given her

hesitation about the death penalty, if anything, M.F. was a favorable defense juror. It was

neither error nor an abuse of discretion for the court to deny this challenge.

Juror J.H.

During voir dire, J.H. reiterated a neutral view on the death penalty, expressing a

commitment to base his decision on the case's facts and the court's instructions. He

acknowledged "there's no rehabilitation" for some people but noted sometimes "people

get into situations" and there are "so many hypothetical situations out there." J.H.

recognized the weighty responsibility of imposing the death penalty, underscoring the

need for certainty in such decisions.

38

On his questionnaire, J.H. indicated a belief that mercy should not play a role in

sentencing. And when asked whether he believed in an "eye for an eye," his answer was,

"Let the punishment fit the crime." During voir dire, when questioned about his "eye for

an eye" response, he explained he could envision "a hypothetical situation" in which a

crime is "so horrific" that he could support the death penalty. But he acknowledged the

death penalty is not suitable for every murder case, although it is "there for a reason" and

there are situations in which it can be used. J.H. admitted that until he learned the juror's

role during this process, he had not deeply considered his stance on the death penalty.

Following the conclusion of J.H.'s panel, defense counsel challenged him for cause

based on his questionnaire responses. Counsel interpreted J.H.'s "eye for an eye" response

as potentially shifting the burden to the defense to "prove . . . that life without the

possibility of parole was deserved." The court rejected this challenge, finding J.H.'s

responses indicated he has not yet made up his mind one way or the other and

characterizing him as "middle of the road" on the death penalty. The court found no

reason to doubt his fairness and impartiality during the guilt phase, and that he conveyed

a willingness to consider the mitigating circumstances if the case reached the penalty

phase.

On appeal, Flack claims the district court abused its discretion by denying his forcause challenge to J.H., because of his questionnaire responses: "Let the punishment fit

the crime," and mercy should not be a factor in his decision-making. Flack continues that

J.H. "harbor[ed] an unacceptable bias on a matter crucial for a fair proceeding," even if

he agreed to follow the law.

Nevertheless, like M.F., the record establishes J.H. would listen to the evidence

and decide the case on the facts and law. And we hold the district court did not abuse its

discretion in denying these challenges.

39

Jurors not challenged for cause

Besides M.F. and J.H., Flack argues three other seated jurors were similarly

biased: J.S., C.C., and G.B. He asserts both J.S. and C.C. expressed their belief that

childhood experiences and mercy were irrelevant considerations for determining

punishment, citing only their questionnaire responses. For J.S. and C.C., Flack adds that

although each agreed to consider childhood experiences during voir dire, the prosecution

led them to agree only to "consider" mitigators, without committing to "meaningful

consideration," potentially prejudicing the defense.

As for J.S., the defense questioning was cursory. When asked about his thoughts

on the death penalty, he replied he could impose it in some cases depending on the

evidence. Similarly, when asked about his starting position for or against the death

penalty, he stated he did not have an opinion until he considered the evidence. Defense

counsel asked each juror if they could "consider mercy for that guilty murder"; J.S.

simply replied, "Yes." Counsel did not follow up. In fact, his response to most questions

was a simple yes or no. And he said he would follow and apply the law. When asked

about mitigating factors, he answered he would consider the evidence whether "the

person really . . . [was] aware of what he was doing."

The State asked C.C. to elaborate on her questionnaire responses about the effect

of childhood experiences. She elucidated upbringing may not always determine the

outcome, but "a loving, caring home" increases the likelihood of the individuals "turning

out to be better people." Despite this, she acknowledged she had written that "people are

responsible for their actions." The State followed by asking whether she could consider

childhood experiences as mitigating factors, C.C. replied people "have to be accountable

40

for [their actions]" but she "would consider aggravating and mitigating" factors and

"weigh them up" in her decision-making process.

When questioned by defense counsel, C.C. acknowledged she placed greater

importance on the circumstances of killing in the context of aggravating and mitigating

considerations. She confirmed "the background of a person" would not matter to her. But

she clarified a commitment to fairness and honesty in weighing these factors. After

further questioning, C.C. agreed she would give the defense's mitigators weight, consider

them, and "truly give [them] meaningful consideration."

As for G.B., Flack contends he "expressed strong biases in favor of the death

penalty, writing that he definitely favored the death penalty, if the murder of a mother

and child were proven beyond a reasonable doubt." G.B. did not think childhood

experiences were relevant to capital punishment, as there was "'no excuse for capital

murder.'" Flack claims the "upshot" of G.B.'s agreement to "consider" childhood

experiences after saying they were not "relevant" on his questionnaire was "that he would

consider them but not give them relevance."

On his questionnaire, G.B. acknowledged the role of upbringing in adult behavior

but maintained it did not excuse capital murder. The State asked whether his position

changed after he understood the process for imposing the death penalty; G.B. said he

would consider any mitigating circumstances he was instructed to consider. Defense

counsel gave G.B. a hypothetical of a conviction with various aggravators. Counsel asked

how jurors should view the death penalty before factoring in any mitigators. G.B.

answered, "You have to look at the mitigators to get it on the scale and the aggravators

would have to outweigh the mitigators." Counsel characterized his questionnaire response

about the likelihood of imposing the death penalty for the premeditated capital murder of

a woman and child as "almost automatic." But G.B. clarified that was not what he had

41

meant, "[i]t depends on all the evidence presented." G.B. also noted that after he learned

"how the system works," he could consider childhood experiences as a mitigating

circumstance.

The State, of course, did not have a chance to rehabilitate the jurors because Flack

did not challenge them during the trial. Likewise, the court could not make a record for

appellate review on each juror's ability to be fair and impartial. Thus, Flack's failure

burdens our analysis.

Flack's cursory argument about these jurors' prejudices focuses on their limited

responses and matter-of-course agreement to apply the law as instructed. But the record

establishes trial counsel never probed deeper into the concerns appellate counsel now

raises. Nothing shows these jurors were improperly prejudiced or biased against Flack.

The district court conducted voir dire carefully and cautiously, addressing the defense's

concerns seriously. The follow-up voir dire questioning either clarified or rehabilitated

each juror's positions, so the court could reasonably conclude these jurors would be fair

and impartial. We find no error.

GUILT PHASE PROSECUTORIAL ERROR

Flack asserts three instances of guilt-phase prosecutorial error that, individually

and collectively, warrant conviction reversal. First, he claims the State's repeated use of

the expression "level[ing] the scales" during voir dire to describe the jury's role at

sentencing negated the presumption of life in Kansas. Second, he argues the State's

mention of Mother's Day during opening statements to describe the discovery of L.B.'s

body was inflammatory and meant to provoke juror sympathy. Third, he claims a

baseball analogy during the State's closing rebuttal argument gave an incorrect reasonable

doubt definition. We disagree.

42

Standard of review

We review prosecutorial error claims in two steps: error and prejudice. First, we

determine whether the alleged acts "'fall outside the wide latitude afforded prosecutors to

conduct the State's case.'" State v. Blansett, 309 Kan. 401, 412, 435 P.3d 1136 (2019).

Second, if we find error, we then "'determine whether the error prejudiced the defendant's

due process rights to a fair trial.'" 309 Kan. at 412. In the second step, we apply the

constitutional harmlessness standard laid out in Chapman v. California, 386 U.S. 18, 87

S. Ct. 824, 17 L. Ed. 2d 705 (1967), which demands the State show beyond a reasonable

doubt that the prosecutorial error did not affect the trial's outcome in light of the entire

record. In other words, the question is whether there is no reasonable possibility that the

error contributed to the verdict. Blansett, 309 Kan. at 412.

Leveling the scales

Before each voir dire panel, the State consistently described the transition from the

guilt phase to the penalty phase by using the colloquialism "level[ing] the scales." In one

panel, for example, the prosecutor told jurors they would once again hear the evidence

and follow the judge's instructions. And based on the evidence and the law, the jury

would determine whether the sentence should be life without the possibility of parole or

the death penalty. The prosecutor illustrated the "concept of the process" as: "You have a

scale, you level the scale. . . . Then you consider the circumstances."

These included the statutory aggravating circumstances the State had to prove

beyond a reasonable doubt on one side and the mitigating circumstances, which need not

be proved beyond a reasonable doubt, on the other. The prosecutor told the panel, "The

weighing of circumstance is an individual determination" "based upon your own life

43

experiences, and your values." The prosecutor concluded if "[t]he aggravators outweigh

the mitigators, imposition of the death penalty. If the mitigators outweigh the

aggravators, life without the possibility of parole. If they're equal, imposition of the death

penalty." The prosecutor used a similar description with each panel.

In Kansas, our statutory scheme for imposing the death penalty requires a

sentencing jury to find beyond a reasonable doubt at least one statutory aggravating

circumstance and, "further, that the existence of such aggravating circumstances is not

outweighed by any mitigating circumstances which are found to exist." K.S.A. 2022

Supp. 21-6617(e). Under this scheme, if the aggravating circumstances and mitigating

circumstances are in "equipoise," as we have termed it, the sentence is death. Kansas v.

Marsh, 548 U.S. 163, 179, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006).

In Marsh, the defendant argued the equipoise provision "establishes an

unconstitutional presumption in favor of death." 548 U.S. at 166-67. But the Court

rejected that argument and held it was constitutionally permissible for an equipoise

weighing to result in a death sentence. In reaching that conclusion, the Court stated our

"sentencing system is dominated by the presumption that life imprisonment is the

appropriate sentence for a capital conviction" because it requires a life sentence if the

State fails to meet its burden to prove an aggravating circumstance. 548 U.S. at 178.

Flack argues the presumption of life the Court found "dominated" our system means the

"jury does not start with level scales." He asserts that because "'level scales' is a more

colloquial term for equipoise," the prosecutor's language "with every jury panel, and thus

with every seated juror," "primed the jury to start from equipoise rather than the proper

presumption of life."

We agree with Flack's premise that our capital sentencing scheme includes a

presumption of life. But we do not agree with his conclusion that the prosecutor's

44

"level[ing] the scales" phrasing contradicted that presumption or misstated the law. The

"default" sentence after a capital conviction is a life sentence without the possibility of

parole. And that default continues until the State proves, and the jury finds, an

aggravating circumstance beyond a reasonable doubt. It is only at that point the weighing

process or "scales" come into play. The prosecutor's analogy did not misinform the jury

and imply a presumption of death. Rather, it conveyed just the opposite: that the guilty

verdict itself carried no weight in sentencing deliberations.

We hold the prosecutor's description of the deliberative process accurately

explained the State's burden to prove an aggravating circumstance and the weighing

process that follows. The prosecutor's comments were not error.

Prosecutor's reference to Mother's Day

The State's opening statement made a single reference to Mother's Day before

describing law enforcement's discovery of L.B.'s body: "In just a few hours it will be

Mother's Day. It's May 11th, 2013. And at this point in the evening the sun has set,

darkness has fallen, and there's a group of officers and they're huddled together on a

bridge." Flack argues the fact it was almost Mother's Day was immaterial and meant to

inflame the jurors' sympathies. We disagree.

Prosecutors have wide latitude when crafting opening and closing statements, so

long as their statements "'accurately reflect the evidence, accurately state the law, and

cannot be "intended to inflame the passions or prejudices of the jury or to divert the jury

from its duty to decide the case based on the evidence and the controlling law."'" State v.

Bodine, 313 Kan. 378, 406, 486 P.3d 551 (2021). When deciding whether a prosecutor's

statement falls outside the wide latitude given, we consider "'the context in which the

statement was made, rather than analyzing the statement in isolation.'" 313 Kan. at 407.

45

In State v. Henry, 273 Kan. 608, 640, 44 P.3d 466 (2002), the court determined a

prosecutor's comment to "'think about Mother's Day yesterday, and her mom how she

must have felt. Now [the victim] will never have a chance to be a mother, this young

professional sharp, security conscious woman . . . .'" The Henry court noted, "The

prosecutor's reference to the mother's grief and the introduction of the mother's testimony

was not relevant to whether the defendant was afflicted by mental disease or defect at the

time of the alleged crimes. The prosecutor clearly intended to inflame the passion and

prejudice of the jury." 273 Kan. at 641; cf. State v. Chandler, 307 Kan. 657, 690, 414

P.3d 713 (2018) (prosecutor stated defendant "'robbed her own children of their father'"

and elicited sympathy for the children).

But the prosecutor's reference to Mother's Day here is distinguishable from Henry.

The prosecutor was painting a scene describing law enforcement's discovery of L.B.'s

body that included many details not necessary to the case, such as describing the cool

spring evening and use of flashlights. The only reference to Mother's Day was followed

by 11 days of testimony and evidence, so its alleged appeal to passion seems overblown.

The State never mentioned it again. Nor did it ever imply finding L.B.'s body just before

Mother's Day was any worse or more tragic than any other day. The comment was within

the wide latitude given to prosecutors in crafting an opening statement and not error.

Baseball analogy

Flack's final guilt-phase prosecutorial error challenge is to a Chicago Cubs

analogy the prosecutor used in rebuttal closing argument. The prosecutor stated:

"We've not asked you to ignore anything. What we've asked you to do is look at

the totality, look at all of it. When you consider the defendant's actions before the crime,

46

during the crime, after the crime. When you consider the defendant's words, his

statements about what happened. And then you take that and you consider other witness

observations, the physical and scientific evidence, when you look at all of that, all of that

leads to one conclusion. It's him. It's no one else. It's simply him. No matter how many

times, no matter how many ways, the defendant's version that there were other people

involved is simply not supported by evidence.

"You know in terms of possibility, every February I'm a happy man. I'm a happy

man because on February 15th it's the start of spring training and as a lifelong Chicago

Cubs fan, I am filled with hope because it is possible, it is possible that this could be the

Cubs year. But inevitably, inevitably sometimes by June, sometimes late August, it is no

longer possible that it's going to be the Cubs year. I'll keep my fingers crossed in terms of

the season. I'll keep superstitions and I'll have to go spit in the river now or something.

But there's always possibilities, but there comes a point, just like in baseball that at some

point in the season it's no longer possible that our team is going to win the pennant or our

team is going to go to the World Series.

"There comes a point when it is not possible and it's not possible because it's not

supported by hard evidence. And the hard evidence, the circumstantial evidence here, all

overwhelmingly points to one person and one person alone."

Flack argues this analogy improperly sought to define reasonable doubt akin to the

puzzle analogy disapproved of in State v. Sherman, 305 Kan. 88, 115-18, 378 P.3d 1060

(2016). Again, we disagree.

In Sherman, the State showed a PowerPoint slide depicting Mount Rushmore with

Theodore Roosevelt's face removed. The slide contained the question, "'Do you have a

REASONABLE DOUBT this is Mt. Rushmore??'" and, "'Even though you can't see all

four figures!!'" 305 Kan. at 96. We disapproved because this analogy "improperly

equated a juror's prior knowledge about the picture being displayed to his or her 'life

experience.'" 305 Kan. at 116. It inappropriately "foster[ed] the illusion that the jurors

47

already know the full picture of the case they are hearing and are simply looking for

pieces of evidence to match it." 305 Kan. at 116. Contrary to that implication, "we insist

that jurors have minimal to no prior knowledge of a case precisely to prevent them from

seeking evidence to confirm a preconceived narrative and conclusion." 305 Kan. at 116.

Flack argues the baseball analogy just substitutes baseball wins and losses for

pieces of a puzzle. He argues the prosecutor was telling the jury it did not need to see the

full season play out and could turn off the TV and assume the worst "based on their

knowledge of how such things usually go." But one obvious problem with his argument

is that the analogy does not attempt to describe reasonable doubt, let alone define it. The

prosecution does not mention reasonable doubt until later, when it still does not try to

define it.

Based on the context, this permissibly appealed to the jury's common sense to

evaluate the weaknesses in Flack's case. See State v. Butler, 307 Kan. 831, 867-68, 416

P.3d 116 (2018) (permissible for prosecution to say the defendant's version of events was

ridiculous, not believable). The prosecutor specifically mentioned Flack's claim that more

people were involved and used baseball to argue the evidence does not support that. He

seems to have been saying that at some point, based on how a baseball season works, a

team might have so many losses it simply cannot win the season—it is not possible to get

to the World Series. By analogy, the prosecutor pointed out there was more than enough

contrary evidence to show Flack's version was impossible. We hold this was not error.

We find no prosecutorial error during the trial's guilt phase.

48

PENALTY-PHASE PROSECUTORIAL ERROR

Flack alleges three prosecutorial errors that occurred in the penalty-phase closing

arguments. He claims the prosecutor erred by (1) repeatedly asking the jury to consider,

"What is justice?" (2) stating facts not in evidence when he implied Flack could access

mental health treatment in prison and stated Flack's family would be "healed" regardless

of the sentence, and (3) improperly interjecting opinion into the case by suggesting as a

"seasoned prosecutor" he knew the death penalty was appropriate here. We hold no error

occurred.

Standard of review

Our standard of review for prosecutorial error claims in the penalty phase largely

remains unchanged from the guilt phase, although, in a capital murder trial, a prosecutor

has a "'heightened duty'" to refrain from committing error due to "'the life and death

nature of the proceedings.'" State v. Kleypas, 305 Kan. 224, 315, 382 P.3d 373 (2016)

(Kleypas II). If there are multiple prosecutorial errors, the inquiry "'is whether the total

effect of the cumulative [errors] found to exist, viewed in light of the record as a whole,

had little, if any, likelihood [or any reasonable possibility] of changing the jury's ultimate

conclusion regarding the weight of the aggravating and mitigating circumstances.'" 305

Kan. at 315.

"What is justice?"

Flack challenges the prosecutor repeatedly asking, "What is justice?" during

opening and closing statements. His opening statement began and ended with this theme:

49

"The penalty phase, it's a narrow band of cases in Kansas that require this

litigation. There has been a capital murder conviction. The elected law enforcement

official from this county, Mr. [Prosecutor], has decided that twelve well-vetted jurors

from the county where the crime occurred should decide this: What is justice? What is

justice?

. . . .

"The core issue comes down to this: Once the arguments are over, you're in the

jury room, deliberations have begun, the foreperson receives the instructions.

"The question will become: Abiding by the instructions that you're given,

considering the facts and the circumstances that you have found to exist, each of you will

have to ask yourself, what is appropriate justice?

"The evidence will show . . . a twenty-one year old mother that before the trigger

was pulled, and the contents of a PDX round tore through her brain, the evidence will

show that she was stripped from the waist down. The evidence will show that she's

unable to hold those who are around her because her hands are tied, bound behind her

back.

"The evidence will show that she is unable to verbalize to those who are around

her because her mouth is gagged. The evidence will show that she is unable to clearly see

what is around her because her glasses have been taken off.

"The evidence will show that all she's left with is this: She can feel, smell, and

hear. She can feel the carpet on her face. She can feel the air on her naked legs and

buttocks. She is breathing the air in that master bedroom. And she is hearing the

footsteps, the footsteps of those around her. The words and the sounds of those around

her. What is appropriate justice? What is appropriate justice?

"The evidence will show that [K.B.'s] eighteen month old child, [L.B.], standing

by her dead mother's body. The evidence will show that the trigger was pulled and the

50

contents of that PDX round tore through her small torso. What is appropriate justice?

What is appropriate justice?

"Life without the possibility of parole, imposition of the death penalty? It is for

you to decide." (Emphases added.)

At the end of the State's pre-rebuttal closing, the prosecutor briefly returned to this

theme:

"The core issue in this case, abiding by the instructions given to you, considering

the facts and the circumstance that you have found to exist. Each of you will have to ask

. . . yourself this: What is appropriate justice? What is appropriate justice? A 21 year

old mother shot in the back of the head, followed by her 18 month old child shot in the

back. You have to make a decision, what is appropriate justice? What is appropriate

justice? Imposition of the death penalty? Life without the possibility of parole? That

decision is for you to make." (Emphases added.)

Flack compares these comments to disapproved prosecutorial appeals to justice

and sympathy. See, e.g., State v. Holt, 300 Kan. 985, 996-99, 336 P.3d 312 (2014). Flack

argues "the prosecutor was clearly asking, 'What is justice for them?'" The State counters

he takes the comments out of context—the prosecutor correctly set forth the penalty

phase procedures, and he never asked the jury to return a death verdict or argued it would

be appropriate. Even so, Flack asserts the comments "distracted the jury" from its duty to

decide the case on the facts and the law, as given by the judge.

We disagree. In Holt, we determined a prosecutor erred by "stating that the jury

has the 'privilege . . . to right a wrong,' and '[y]ou and only you can right the wrong that

the defendant has committed in taking a young man's life.'" Holt, 300 Kan. at 999. The

remarks were "akin to asking the jury to administer justice for the victim" rather than "a

general appeal for justice." 300 Kan. at 999. And we noted the prosecutor "'divert[ed] the

51

jury from the evidence so as to obtain a conviction based upon sympathy for the victim.'"

300 Kan. at 998.

Our pre-Holt caselaw similarly distinguished between a general appeal for justice

and an appeal for a jury to do justice for the criminal victims, although these cases

generally declined to draw a bright line. See, e.g., State v. Britt, 295 Kan. 1018, 1030-31,

287 P.3d 905 (2012) (prosecutor's request for the jury to "'do the right thing, here, find

him guilty'" was "more aptly characterized as a general appeal for justice that was not

explicitly tied to the community or the victim"); State v. Simmons, 292 Kan. 406, 419,

254 P.3d 97 (2011) ("[A] prosecutor commits misconduct during closing argument when,

in effect, he or she asks the jury to base its deliberations on sympathy for the victim or

victim's family or to otherwise argue the impact of a crime on a victim or victim's

family."); State v. Martinez, 290 Kan. 992, 1015, 236 P.3d 481 (2010) (prosecutor's

"comment urging the jury to tell A.G. 'she did the right thing' by reporting the incident"

was improper "because it appealed to the jurors' parental instincts and diverted their

attention from the evidence and the law"); State v. Nguyen, 285 Kan. 418, 425-26, 172

P.3d 1165 (2007) (noting a possible "distinction when the argument is asking for justice

for the specific victim" but speculating that "[p]erhaps the touchstone is whether the

argument seeks to divert the jury from the evidence" with "sympathy for the victim"; in

any event, a prosecutorial request for justice is permissible where "the prosecutor's

argument was largely evidence based, notwithstanding an underlying promotion of

awareness for the victim" "coupled with the admonition against sympathy and

prejudice"); State v. Ruff, 252 Kan. 625, 631-36, 847 P.2d 1258 (1993) (prosecutorial

exhortation for the jury to "'not allow this conduct to be tolerated in our county'"

constituted reversible prosecutorial misconduct).

Likewise, the post-Holt cases continue to recognize potential prosecutorial error

by improperly eliciting sympathy. See, e.g., State v. Gallegos, 313 Kan. 262, 276, 485

52

P.3d 622 (2021) (prosecutor's statements permissible because they did not appeal to jury's

sympathy, did not ask the jury to place itself in the victim's position, and did not ask for

justice for the victim); Chandler, 307 Kan. at 690 (comment urging for conviction

because "'she robbed her own children of their father and his fianc[ée]'" erroneous). But

here, the prosecutor was not arguing for a conviction; the jury already returned a guilty

verdict. Nor did the prosecutor ever directly ask the jury to return a death sentence or

suggest that such a sentence was appropriate.

Indeed, the prosecutor began opening arguments with the facially neutral

statement that "twelve well-vetted jurors from the county where the crime occurred

should decide this: What is justice?" And the prosecutor concluded his pre-rebuttal

closing on a similar open-ended note: "You have to make a decision, what is appropriate

justice? What is appropriate justice? Imposition of the death penalty? Life without the

possibility of parole? That decision is for you to make." Flack's prosecutor did not ask for

justice for the victims—he acceptably told the jurors their job was to determine a just

sentence.

Mental health treatment and family healing

Flack next argues the prosecutor erred by commenting on facts outside the

evidence when he "implied to the jury" Flack would receive mental health treatment and

his family "would be 'healed' if he were sentenced to death." Flack asserts no evidence

shows that. But these characterizations are not entirely accurate:

"Over this time you've seen the sadness. Sadness can also be healing, healing.

Because there's something about a case like this that when you expose bad things to the

light, there's healing. There's healing.

53

"You know, for the healing for the Flack family, that can occur whether there's

the long journey towards execution or the long journey towards natural death. That

healing doesn't stop with whatever your decision is. And during that journey hopefully

Mr. Flack will get the treatment that he needs to address his mental health issues."

"A prosecutor is prohibited from arguing facts not in evidence, but generally has

wide latitude to make arguments based on reasonable inferences from the evidence

presented at trial." State v. Novotny, 297 Kan. 1174, 1189, 307 P.3d 1278 (2013). Here,

Flack advances little argument beyond pointing to the statements themselves and offering

conclusions, and he cites just one case, Chandler, 307 Kan. 657. But in Chandler, a

prosecutor committed reversible error when she told the jury a nonexistent protection

from abuse order had been filed against the defendant and repeatedly hammered that

fabricated fact during her closing. 307 Kan. at 678-84. That case hardly supports Flack.

Flack's characterizations are overstated. First, the prosecutor's mental health

comments presented only hope and desire, not fact, when he said, "[H]opefully Mr. Flack

will get the treatment that he needs to address his mental health." (Emphasis added.) He

did not tell the jury Flack would receive mental health treatment, nor did he even suggest

it was likely. And as the State points out, the record supports a reasonable inference that

mental health treatment might be available based on testimony Flack previously received

it in jail and prison. Second, the prosecutor's statements about Flack's family did not

promise healing, just that whatever healing they may experience would happen during

"the long journey towards execution or . . . natural death" and that "healing doesn't stop"

no matter the jury's decision. At most, this statement tried to convince the jury that

sympathy for Flack's family should not weigh heavily in its deliberations.

We hold neither statement was erroneous. The prosecutor did not impermissibly

state facts outside of evidence during closing.

54

Self-reference as "seasoned prosecutor" and suggesting, "If not this case, what case?"

Finally, Flack claims the prosecutor improperly bolstered himself as a "seasoned

prosecutor" and offered his opinion that this case warranted the death penalty. The State

counters the prosecutor properly requested jurors determine an appropriate sentence

given the facts, instructions, and weight of mitigating and aggravating circumstances. The

prosecutor said:

"I ask you to take [Defense]'s argument into consideration. And I hope after all

this that the attorneys in this case have represented our professional best.

"At the end of it, it comes down to what is justice? What is justice? Taking into

account all of the instructions, abiding by those instructions, looking at all the facts and

circumstances you found to exist.

"There is a dead 21 year old mother shot in the back of the head, bound and

gagged with her 18 month old daughter in that room. Then there's that 18 month old

daughter that is shot in the back. These cases are difficult on everyone. The question is,

what is justice for that scenario? For the facts and circumstances that you've seen here,

what is justice?

"The State of Kansas, the death penalty. If not this case, what case?"

Our law is clear: In the context of witness credibility, a prosecutor expressing an

opinion is a form of unsworn, unchecked testimony rather than commentary on the

evidence. State v. Pabst, 268 Kan. 501, 510, 996 P.2d 321 (2000). This tracks Rule 3.4(e)

of the Kansas Rules of Professional Conduct: "A lawyer shall not . . . state a personal

opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil

55

litigant or the guilt or innocence of an accused." KRPC 3.4(e) (2023 Kan. S. Ct. R. at

394).

Flack mischaracterizes the nature and intent of the prosecutor's words. First, while

the prosecutor mentioned his experience as a "seasoned prosecutor," he did so during voir

dire and penalty-phase closing. During voir dire, the prosecutor asked one of the panels if

anyone was nervous. When three of the six raised their hands, he said, "[A]s you can tell

by the color of my hair, I'm a seasoned prosecutor and I've handled capital murder death

penalty cases before, also homicide cases, but I still get nervous." This statement's

purpose was simply to relax nervous jurors.

Second, the prosecutor used the phrase "seasoned prosecutor" during the penaltyphase closing colloquially to remark on his age, not to tell jurors to trust his judgment

over their own. After discussing the weighing process instruction, he said, "So you know,

at this point as a prosecutor and as you can see I'm a seasoned prosecutor, been around

awhile. I usually . . . zoom back in to the key place." Here, the "key place" was the master

bedroom where the bodies were found. But the prosecutor really wanted "to zoom in on

the courtroom," calling for the jurors to consider the presented facts and law.

Neither statement related to his separate query, "If not this case, what case?"

during penalty-phase closing. The logical leap is too large to conclude combining these

unrelated statements told the jury the prosecutor had seen a lot of cases and felt this one

was deathworthy. His comments were made far apart and separately. Their combined

effect was not error.

That said, it is possible the "if not this case" comment alone is error. As Flack

points out, at least two other jurisdictions have held similar comments to be error. The

56

Oklahoma Court of Criminal Appeals disapproved of a problematic prosecutor who had

run afoul of the court:

"[T]he prosecutor improperly pleaded with the jury to do justice 'and the only way you

can do that is bring back a sentence of death.' He also told the jury 'If this isn't a death

penalty case, what is?' It is error for a prosecutor . . . state his personal opinion as to the

appropriateness of the death penalty." (Emphasis added.) Torres v. State, 962 P.2d 3, 18

(Okla. Crim. App. 1998).

Although Torres does not give more context for the nearly identical statement, the

court ultimately ruled the statement along with the prosecutor's other errors were

harmless. 962 P.2d at 18.

Flack's second case, stemming from a Missouri habeas corpus petition, required

vacating the defendant's death sentence. There, the prosecutor spoke his opinion:

"I've been a prosecutor for ten years and I've never asked a jury for a death penalty, but I

can tell you in all candor, I've never seen a man who deserved it more than [the

defendant]. By returning your verdict in this case . . . that either means that you believe

beyond a reasonable doubt that he pulled the trigger, or that he had the frame of mind

that's consistent with pulling the trigger, and I submit to you, that [the defendant] did pull

the trigger, and didn't pull it once, but pulled it twice—executed an innocent man in cold

blood.

"So, where do we go from there? I say to you that I never saw a man who

deserved it more and I say that to you in complete sincerity, and it's my job, as I see it, to

tell you that." Newlon v. Armontrout, 693 F. Supp. 799, 804 (W.D. Mo. 1988), aff'd 885

F.2d 1328 (8th Cir. 1989).

57

The Newlon court held the prosecutor discussing declining to seek the death

penalty until this case was improper, especially when the death penalty statutes were

unconstitutional for much of that period. Newlon, 693 F. Supp. at 804-05. The Newlon

prosecutor continued that theme but added several more erroneous statements. He

emphasized he was the "'top law enforcement officer of the [c]ounty,'" compared the

defendant to infamous mass-murderers, personalized analogies to jurors defending their

own children, referenced war and courage, insinuated all murder should be punished with

death, and reassured jurors appellate review follows any death sentence. 693 F. Supp. at

808. In combination, the jury faced a "relentless, focused, uncorrected argument based on

fear, premised on facts not in evidence, and calculated to remove reason and

responsibility from the sentencing process." 693 F. Supp. at 808.

By contrast, the prosecutorial remark here, taken in context, permissibly and

simply requested jurors to accurately perform their jobs by following their instructions.

The prosecutor did not commit error.

HEINOUS, ATROCIOUS, OR CRUEL AGGRAVATING CIRCUMSTANCE

The State charged Flack with capital murder based on the "intentional and

premeditated killing of more than one person as a part of the same act or transaction or in

two or more acts or transactions connected together or constituting parts of a common

scheme or course of conduct." K.S.A. 2012 Supp. 21-5401(a)(6). The instruction for

capital murder required the jury to find Flack "purposefully killed [K.B.] and L.B." The

State's notice of intent to seek the death penalty included the aggravator: "The defendant,

as to [K.B.], committed the crime in an especially heinous, atrocious, or cruel manner"

following K.S.A. 2012 Supp. 21-6624(f)'s exact language. (Emphasis added.)

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Flack argues the heinous manner aggravator is limited to "the crime," while the

version of capital murder he was convicted of required multiple killings, so the State had

to allege and prove he killed both K.B. and L.B. in a heinous manner. We disagree. The

statutory scheme does not require this.

Standard of review

To the extent this issue requires statutory interpretation, it presents a question of

law subject to unlimited review. If the statutory language is plain and unambiguous, we

apply the language as written. State v. Dinkel, 314 Kan. 146, 155, 495 P.3d 402 (2021).

Discussion

Flack equates the State's notice of intent to seek the death penalty with a charging

document. He cites State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016), to support his

claim the State needed to "charge" the heinous aggravator as to both K.B. and L.B. In

Dunn, we identified "three possible types of charging document insufficiency a criminal

defendant may challenge." 304 Kan. at 815. First, a charging document must meet "the

Kansas constitutional minimums of correct court and correct territory." 304 Kan. at

815. Second, it must allege "facts about the intent and action on the part of the defendant

that, if proved beyond a reasonable doubt, would constitute violation of a Kansas

criminal statute." 304 Kan. at 815. Third, it must satisfy "federal and state constitutional

standards for due process and notice, such that the defendant has an opportunity to meet

and answer the State's evidence and prevent double jeopardy." 304 Kan. at 815. The type

of deficiency determines the available remedies for each. 304 Kan. at 816-17.

Flack argues his claim falls within the second and third categories: The State

"failed to state facts that constitute a Kansas crime" and "the defective charge denied

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[him] due process." Before discussing Dunn, and what it means here, we note the process

for pursuing the death penalty differs from charging the underlying crime of capital

murder. That distinction is critical to understanding Dunn's limitations.

In setting the second category's framework—charging the underlying crime of

capital murder—the Dunn court noted K.S.A. 22-3201(b) requires a charging document

to "state 'essential facts' constituting the crime charged." 304 Kan. at 811. The statute

emphasizes "'facts' rather than 'elements.'" 304 Kan. at 811. "A Kansas charging

document should be regarded as sufficient . . . when it has alleged facts that would

establish the defendant's commission of a crime recognized in Kansas." 304 Kan. at 811-

12.

To determine whether the alleged facts constitute a Kansas crime, we use the

crime's statutory definition to determine if the factual allegations, if proved beyond a

reasonable doubt, would justify a guilty verdict. 304 Kan. at 812. The State charged Flack

under K.S.A. 2012 Supp. 21-5401(a)(6) with the "intentional and premeditated killing of

more than one person as a part of the same act or transaction or in two or more acts or

transactions connected together or constituting parts of a common scheme or course of

conduct." The capital murder's definition does not include aggravating circumstances.

Those are instead set forth in the death sentence procedure statutes, applicable only after

the State obtains a conviction for capital murder.

K.S.A. 2022 Supp. 21-6617(a) governs the State's requirements to give a written

notice of its intent to seek the death penalty. If the prosecutor fails to give the notice and

the defendant is convicted of capital murder, the sentence will be life imprisonment

without the possibility of parole, and death penalty cannot be imposed. K.S.A. 2022

Supp. 21-6617(a).

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But the notice of intent is not the State's only obligation. The State must also

provide the defendant notice of all aggravating factor evidence it plans to use. See K.S.A.

2022 Supp. 21-6617(c). Notably, the subsection (c) notice does not need to be provided at

the same time as the subsection (a) notice. Kleypas I, 272 Kan. at 979. The Kleypas I

court distinguished between the two notice requirements. The notice of intent allows the

defendant to begin their preparation for trial as it serves notice that the case will indeed

be a death penalty case, thus allowing them to make choices regarding the retention of

counsel, plea bargaining, and preparation of mitigating factors. 272 Kan. at 979-80. On

the other hand, the subsection (c) notice permits, but does not require, the State to give

notice of aggravating circumstances. See K.S.A. 2022 Supp. 21-6617(c) ("Only such

evidence of aggravating circumstances as the state has made known to the defendant

prior to the sentencing proceeding shall be admissible."). The State need only give such

notice "within a reasonable time prior to trial to allow the defendant an opportunity to

prepare to defend against the aggravating circumstances." Kleypas I, 272 Kan. at 980.

Flack's claim the State must prove he killed both K.B. and L.B. in a heinous

manner does not neatly fit the charging deficiency paradigm under Dunn; it more closely

resembles an evidence sufficiency claim. The State met both statutory notice

requirements about its intent to seek the death penalty and its intended aggravating factor

evidence. Neither statutes nor caselaw supports such a claim.

K.S.A. 2022 Supp. 21-6624 sets out the aggravating circumstances available for

capital murder:

"(a) The defendant was previously convicted of a felony in which the defendant

inflicted great bodily harm, disfigurement, dismemberment or death on another.

"(b) The defendant knowingly or purposely killed or created a great risk of death

to more than one person.

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"(c) The defendant committed the crime for the defendant's self or another for the

purpose of receiving money or any other thing of monetary value.

"(d) The defendant authorized or employed another person to commit the crime.

"(e) The defendant committed the crime in order to avoid or prevent a lawful

arrest or prosecution.

"(f) The defendant committed the crime in an especially heinous, atrocious or

cruel manner. A finding that the victim was aware of such victim's fate or had conscious

pain and suffering as a result of the physical trauma that resulted in the victim's death is

not necessary to find that the manner in which the defendant killed the victim was

especially heinous, atrocious or cruel. Conduct which is heinous, atrocious or cruel may

include, but is not limited to:

(1) Prior stalking of or criminal threats to the victim;

(2) preparation or planning, indicating an intention that the killing was meant to

be especially heinous, atrocious or cruel;

(3) infliction of mental anguish or physical abuse before the victim's death;

(4) torture of the victim;

(5) continuous acts of violence begun before or continuing after the killing;

(6) desecration of the victim's body in a manner indicating a particular depravity

of mind, either during or following the killing; or

(7) any other conduct the trier of fact expressly finds is especially heinous.

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"(g) The defendant committed the crime while serving a sentence of

imprisonment on conviction of a felony.

"(h) The victim was killed while engaging in, or because of the victim's

performance or prospective performance of, the victim's duties as a witness in a criminal

proceeding."

Flack correctly states the heinous manner aggravator applies to "the crime," not

the crime's elements, but his conclusion that each killing in a multiple-killing capital

murder must have been committed heinously does not necessarily follow.

As readily seen, the aggravating circumstances apply to various subjects—such as

"the defendant," "the crime," and "the victim"—between subsections. Subsection (f)

defines the heinous manner aggravator with both "the crime" and "the victim." It provides

a nonexhaustive list of circumstances a jury may find heinous including conduct

concurrent with the act of killing or conduct not necessarily concurrent with a killing,

such as prior stalking and planning or preparation. K.S.A. 2022 Supp. 21-6624(f)(1)-(2).

Finally, subsection (f) encompasses a catchall provision of "any other conduct" the jury

"expressly finds is especially heinous." K.S.A. 2022 Supp. 21-6624(f)(7).

So, rather than requiring the heinous manner aggravator apply to each killing, the

statute instead focuses on whether "the crime" in total was committed in a heinous

manner. Nothing in the statute supports Flack's reading. Under our death penalty scheme,

any finding of an aggravating circumstance, not outweighed by mitigating circumstances,

is sufficient to sentence the defendant to death. K.S.A. 2022 Supp. 21-6617(e). The

scheme does not assign weight to the number of aggravating circumstances; the finding

of such a circumstance merely triggers the weighing process.

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The State alleged the heinous manner circumstance and gave Flack notice about its

intended evidence to prove the circumstance specifically related to Flack killing K.B.

Imposing a death sentence here did not deprive Flack of due process.

JURY INSTRUCTIONS: SENTENCING PROCEEDING AND DUTY-TO-REACH-VERDICT

Flack challenges two jury instructions from the penalty phase. He argues the first

penalty-phase instruction that informed jurors a guilty verdict would be followed by a

separate sentencing proceeding erroneously implied the jury would not be responsible for

sentencing. He also contests the verdict form alleging it told jurors they had to reach a

unanimous decision to give him a life sentence.

Standard of review

We review jury instructions under a three-step framework. First, we determine if

the issue was properly preserved below. Second, we consider the claim's merits to decide

whether error occurred below. At this step, we consider if the challenged instruction was

legally and factually appropriate. We exercise unlimited review of the entire record and

view the evidence in the light most favorable to the requesting party. Finally, if there was

error, we examine if the error was harmless. State v. Gleason, 305 Kan. 794, 800-01, 388

P.3d 101 (2017); Kleypas II, 305 Kan. at 305-06.

Discussion

The first instruction told the jury that "when a defendant has been found guilty of

capital murder, a separate sentencing proceeding shall be conducted to determine whether

the defendant shall be sentenced to death." (Emphasis added.) At trial, Flack requested to

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replace "shall" with "may" because it implies "the jury was not ultimately responsible

for" sentencing. The court declined, and before us Flack raises the argument again.

There may be a grain of truth to Flack's claim in that a penalty phase is not needed

if the State does not seek the death penalty. See K.S.A. 2022 Supp. 21-6617(a) (requiring

the State give written notice within seven days of arraignment it intends to seek the death

penalty). Otherwise, a person convicted of capital murder receives a life sentence. But his

desired language misstates the law because a person can only be sentenced to death if a

jury makes the necessary findings. Changing "shall" to "may" could lead the jury to

believe the State had another procedural option to obtain a death sentence, and "the

uncorrected suggestion that the responsibility for any ultimate determination of death will

rest with others presents an intolerable danger." Caldwell v. Mississippi, 472 U.S. 320,

333, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985).

Whether a separate sentencing proceeding happens in every capital case or only

after the State decides to pursue that option, the given instruction here fairly stated the

law and did not mislead the jury.

Next, at the penalty phase's conclusion, the court instructed the jury on completing

the verdict form, explaining, "[I]f one or more jurors are not persuaded beyond a

reasonable doubt that aggravating circumstances are not outweighed by mitigating

circumstances, then you shall sign the appropriate alternative verdict form indicating the

jury is unable to reach a unanimous verdict sentencing the defendant to death."

(Emphasis added.) The verdict form provided two options: (1) the standard and

necessary findings to impose a death sentence with space to note applicable aggravating

factors, and (2) "We, the jury . . . state that we are unable to reach a unanimous verdict

sentencing the defendant to death." (Emphasis added.) Over Flack's objection the "unable

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to" language implied jurors must reach a unanimous verdict for or against the death

sentence, the court declined to replace "unable" with "did not."

His suggested language advances a novel reading of the death penalty sentencing

statutes. K.S.A. 2022 Supp. 21-6617(e) provides:

"If, by unanimous vote, the jury finds beyond a reasonable doubt that one or

more of the aggravating circumstances . . . exist and, further, that the existence of such

aggravating circumstances is not outweighed by any mitigating circumstances which are

found to exist, the defendant shall be sentenced to death; otherwise, the defendant shall

be sentenced to life without the possibility of parole. The jury, if its verdict is a

unanimous recommendation of a sentence of death, shall designate in writing, signed by

the foreman of the jury, the statutory aggravating circumstances which it found beyond a

reasonable doubt. If, after a reasonable time for deliberation, the jury is unable to reach

a verdict, the judge shall dismiss the jury and impose a sentence of life without the

possibility of parole." (Emphases added.)

According to Flack, the third sentence conflicts with the first. He argues,

"Sentence one says that the inability to agree is a life verdict; sentence three seems to say

the inability to agree is not a verdict at all." But even if Flack's suggested conflict exists,

his preferred interpretation does not materially differ from the Kleypas I court's

understanding of the statute. In Kleypas I, the court held a sentencing verdict form

stating, "'We, the jury . . . unanimously determine that a sentence as provided by law be

imposed by the Court,'" misled the jury it must reach a unanimous verdict. Kleypas I, 272

Kan. at 1062. K.S.A. 2022 Supp. 21-6617's predecessor "does not require the jury to

unanimously conclude that a death sentence is unwarranted in order to sentence the

defendant to a punishment other than death; rather, the jury must only fail to unanimously

conclude beyond a reasonable doubt that a death sentence is warranted." 272 Kan. at

1062.

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Flack correctly notes the jury is not under a duty to reach a unanimous verdict, but

he fails to establish the given instruction might lead jurors to believe such a duty existed.

The instruction and verdict form accurately state the law and could not have misled the

jury. See State v. Sims, 308 Kan. 1488, 1505, 431 P.3d 288 (2018) (jury instructions

reviewed "together as a whole," not in isolation). The instruction informed the jury the

sentence would be life without parole if it could not reach a verdict, and the verdict form

provided an option to state it could not reach a unanimous verdict of death. Nothing

implied it must reach a unanimous decision to impose a life sentence.

EIGHTH AMENDMENT CHALLENGE

Flack raises a categorical Eighth Amendment challenge to his death sentence, even

though he acknowledges we recently addressed and rejected nearly identical claims in

Kleypas II, 305 Kan. at 328, 337, and State v. Kahler, 307 Kan. 374, 406, 409, 410 P.3d

105 (2018). In both cases, counsel compared the mentally ill to intellectually disabled

people to establish they are less culpable for their crimes. Flack reiterates those

arguments without adding anything materially different from prior cases, so Kleypas II

controls. We see no reason to revisit its holding.

SECTIONS 1 AND 5 OF THE KANSAS CONSTITUTION BILL OF RIGHTS

Flack challenges the death penalty's constitutionality under section 1 of the Kansas

Constitution Bill of Rights. We addressed the same issue in State v. Carr, 314 Kan. 615,

625-26, 502 P.3d 546 (2022) (R. Carr II), and State v. Carr, 314 Kan. 744, 753, 502 P.3d

511 (2022). In those cases, we characterized the argument as contending "section 1

protects the right to life, and Kansas' capital sentencing scheme unconstitutionally

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infringes upon this right." R. Carr II, 314 Kan. at 627. We rejected that argument,

holding:

"The historical record reflects the framers did not intend the term 'inalienable' in

section 1 of the Kansas Constitution Bill of Rights to be construed as 'absolute' and

'nonforfeitable.' Instead, a careful reading of section 1, coupled with the transcripts of the

convention debate, demonstrates that the term 'inalienable' refers only to one's ability to

transfer his or her right or interest to another person. Though inalienable, the framers

viewed the natural rights guaranteed within this section to be forfeitable in civil society.

So construed, the framers did not intend for section 1 to impede or limit the State's

authority to punish individuals for their criminal conduct." 314 Kan. 615, Syl. ¶ 4.

Additionally, Flack attacked the death penalty under section 5 of the Kansas

Constitution Bill of Rights. R. Carr II also addressed that issue, as a "constitutional

challenge to the practice of 'death qualifying' juries in Kansas—the process of removing

prospective jurors for cause . . . when their conscientious objection to capital punishment

substantially impairs their ability to fulfill the oath and obligations of a juror." 314 Kan.

at 645. We rejected that argument, holding:

"[B]oth the plain meaning and historical record confirm that a 'jury' is defined as a group

comprised of persons who will determine issues of fact and return a decision based on the

evidence and in accordance with the law as instructed. Death qualification . . . removes

only those prospective jurors who cannot fulfill these obligations due to conscientious

objection to the death penalty, i.e., the statute authorizes removal of those prospective

jurors excluded from the constitutional definition of a 'jury.' Thus, death qualification

facilitates the very jury trial right guaranteed by section 5. Moreover, when the Kansas

Constitution was adopted in 1859, the common law did not preclude, and in fact

authorized, this procedure. For these reasons, we hold that death qualification under

K.S.A. 22-3410 does not violate section 5." 314 Kan. at 653.

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Flack offers no new authority or argument warranting revisiting of R. Carr II.

CUMULATIVE ERROR

Based on our rulings, the cumulative error doctrine has no application. State v.

Sieg, 315 Kan. 526, 536, 509 P.3d 535 (2022).

We affirm Flack's convictions and sentence. No errors warrant reversal of his

convictions or sentence. We conclude "the evidence supports the findings that" one or more aggravating circumstances "existed and that any mitigating circumstances were insufficient to outweigh the aggravating circumstances." See K.S.A. 2022 Supp. 21-

6619(c)(2). We also conclude the jury imposed the death sentence without "the influence of passion, prejudice or any other arbitrary factor." See K.S.A. 2022 Supp. 21-6619(c)(1