1 IN THE SUPREME COURT OF THE STATE OF KANSAS

N o. 115,964

S TATE OF K ANSAS , Appellee
,

v

.
K YLE T REVOR F LACK , Appellant

.

SYLLABUS BY THE COURT

1. When the facts material to a decision on a motion to suppress evidence are not in dispute, the inquiry on appeal becomes a question of law.

2. Whether a defendant's repeated statement s during a custodial interview to " [t] ake me to jail" constitute an unambiguous invocation of the right to remain silent depends on
the ir context.

3. T he ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases are a relevant guidepost for evaluat ing an ineffective assistance of counsel claim in a capital case, b ut they are not coextensive with constitutional requirements.2

4. Appellate court s 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.
T he party asserting an abuse of discretion must demonstrate it.

5. Appellate courts traditionally accord deference to a trial court's ruling on a juror challenge for cause.

6. The State may allege the crime of capital murder was committed in a " heinous, atrocious, or cruel " manner with respect to any single victim of a capital murder
conviction whe n the conviction is predicated on the killing of more than one person. There is nothing in the statute suggesting that each individual killing must be shown to
have been committed in a heinous manner.

Appeal from Franklin District Court; E RIC W. G ODDERZ , judge. Oral argument held January 31, 2022. Opinion filed January 19 , 202 4

. Affirmed.

Clayton J. Perkins , of Capital Appellate Defender Office, argued the cause, and Meryl Carver

Allmond , of the same office, and Debra J. Wilson and Reid T. Nelson , of Capital Appeals and Conflicts
Office
, w ere with him on the briefs for appellant.

Kristafer R. Ailslieger , deputy solicitor general, and Natalie Chalmers , assistant solicitor general, argued the cause, and Jodi Litfin , assistant solicitor general, and Derek Schmidt , attorney general, w ere with them on the briefs for appellee.

Alice Craig , of Lawrence, was on the brief for amici curiae Midwest Innocence Project, joined by Witness to Innocence and Floyd Bledsoe.3

P ER C URIAM : A jury convicted Kyle Flack of capital murder
, first

- degree murder,
second

- degree murder, and criminal possession of a firearm. In a separate proceeding, it
sentenced him to death after finding two aggravating factors that were not outweighed by mitigating circumstances. On direct appeal, Flack raises numerous issues. W e affirm his
conviction s and the sentence.

F ACTUAL AND P ROCEDURAL B ACKGROUND

In 2013, And rew 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 br ought 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.

A f ter 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, the y discovered a body under a tarp , later identified as White. The y called 911. I nvestigators found two more
bodies in the house , later identified as Stout and K.B

. The investigators suspected Fla c k,
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 th os e 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.4

F irst interview

In what the State depicts as Flack's first of eight version s 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 the y 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 . B ut 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
, claim ing 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" ( methamphetamine5

users ) to Stout' s and that made Stout nervous. The last time Flack saw him
, White " was f uck in' out of his mind, like been up too long, like you could see his eyes all f uck ing 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 pick ed 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
, who m 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 t he door locked
and no one home , he walked to the outbuilding , where h e noticed some thing unnatural because the dog's bowl was outside and windows left open. In the outbuilding, he saw a foot hangin g out from a tarp. N ot know ing what to do
, he left the residence.

T he 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 it6

was K.B.'s car

. Even though h e did not think it could be prove n 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 . H is answer was unclear. Alexander later testified the photo was of a long

deceased 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." O fficers then transported Flack to Ottawa, where he
rested and ate.

S econd 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. H e did not see L.B. that day. T he 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 step father 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
, plac ing himself in side 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 in to the house, and, once inside,
Omar and Chewie entered Stout's bedroom with Stout and shut the door. Flack heard two7

gunshots and ran out. O utside, 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
, walk ed to the outbuilding
, and noticed a nother body under a tarp

. H e 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 t o 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, t he 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. W hen 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 . T hree more gunshots were fired

. The two

men came back out with a duffel bag, keys, and a wallet. They the n drove back to Ottawa , l ea ving 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 Stout8

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 grab bed 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 , t he two went inside the house and pondered next steps while smoking marijuana.

Flack's seventh version addressed Stout's murder. Flack said a fter White's murder,
he g ot paranoid. He called Omar to see if Omar could help him leave the area. Omar agreed but insisted on Stout return ing 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 in to a dumpster in Emporia.

In his eighth version, Flack described what happened to K.B. and L.B. W hen
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.9

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

. H e and Omar started throwing clothes on the bodies. Then L.B. walk ed 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

por ch, h e called his brother to figure out whether to call the police or run. He drove to Emporia and stay ed with Douglas for a few days.

The interview ended when Flack requested an attorney.

Post

- interview investigation

I nvestigators followed up on Flack's claims he met "Omar" in prison. They reviewed lists of inmates overlapp ing his time in prison, produc ing a few leads
, bu t none

were "Omar

. " They also reviewed his phone records
, identif ying most calls and who was
on the other end

. N o 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.

C ell 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 10:4010

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. L ater 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 f

uck in' story. I tried tellin' 'em .

. . some bulls hit 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 aggravat ors : (1)
Flack was previous ly convicted of attempted second

- degree murder ; (2) he knowing ly or purposeful ly killed more than one person ; (3) he committed the crime to avoid or prevent lawful arrest or prosecutio n; (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 includ ed 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

. T he jury
found him guilty on all counts except misdemeanor sexual battery

. T he court accepted the11

verdicts
, and the State moved for a separate sentencing proceeding for the jury to determine whether to impose a death sentence.

During th e 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. T he 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 present ing several witnesses, including a n expert on how prisoners might acclimate to prison life ; a prison work supervisor who m 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 f riends 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 diagnose s include major depressive disorder, schizoaffective disorder, anxiety disorder, and antisocial personality disorder. His mental health struggles plague d him in various ways, even to the date of trial, and would likely continue, though less so in a structured prison environment.

T he jury found the second and fourth aggravating factors existed: Flack knowing ly or purposeful ly murdered K.B. and L.B
, and he killed K.B. in an especially12

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 appeal s 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)

.

S UPPRESSION OF F LACK ' S P OLICE I NTERVIEWS

Before both the preliminary hearing and trial, t he State sought to admit Flack's
custodial statements to police

. T he 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 t he State moved to admit Flack's custodial statements for the preliminary hearing , it submitted testimony from the detectives who interviewed Flack. T he 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 th e detectives " honored. "13

A t 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. T he 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 r epresent you before questioning if you wish. Number five , you can decide at any time to exercise these r ights
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.)14

Alexander testified she did not perceive any of his statements during the Emporia
interview as invo king 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, h e took it as asking Thompson's " opinion on what he should do. " Thompson told Flack he " could not give him legal advice. " And w hen 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
f uck ing 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.

T he 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.15

Preservation

Flack now frames his remarks

— i.e., demanding to be taken to jail

— as a n invocation of his right to remain silent rather than the right to counsel

. G enerally, "[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

- to

remain

- silent issue before the district court , we would appl y 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 minimal ly assist our appellate review. Reg ardless, 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 decision16

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 arise s 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 communicat ion without any ambiguity or equivocation. 301 Kan. at 957. Such an invocation req uires 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 unambiguous ly to invo ke 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 office r." Lopez v.
Janda , 742 F ed . 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 95 7 (a reasona ble officer's understanding matters)

.17

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

His first remark express es his frustration at the detective s' refus al 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.)

T his plainly fails to invo ke a right to remain silent

. Flack merely acknowledg es his version differed from his father's, and the detectives were free to not believe hi m

. 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.)18

L ike the first statement , Flack simply told Alexander she could believe he killed
the victims
, claim ing his innocence. His request s to be taken to jail after a n impasse in questioning were too ambiguous to inv oke 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 invo ke 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.19 . . . .

"[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' thin g and you're gonna keep fuckin' the same thing. . . .

"[Alexander]: Where was she left?

"[Flack]: I don't fuckin' know. [Forth 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 . T he third remark was a dramatic gesture, not a substantive cut ting off of questioning. The fourth was so brief ; it was inscrutable. And t he 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 ask ing questions he could not answer, the y should just charge him

. But , taken together or separately, he does not unambiguous ly invo ke his right to remain silent

.20

A few minutes later
, the detectives encounter ed strong resistance when asking Flack why he was in Emporia. I n this context
, Flack made his sixth alleged invocation:

" You wanna . . . f

uck in' take me to jail, charge me, whatever, I

— we done sat here and
f uck in' talked about it, okay? It's that simple. " But a gain, he did not clearly state to stop the interview

. Instead, he expressed frustration the officer s 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?21 "[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 reasonabl e infer ence 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 inter pretations "

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. " I n context, these comments show Flack believed
th e 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 the ir belief he could help
them find the child

.

Under the circumstances, Flack's "t ake me to jail " comments lead to multiple interpretations

—

rendering his communication un clear

. Flack had experience with police
interviews ; read the Miranda fo r m , 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 statement s " ; 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 silen t by repeatedly suggest ing he be taken to jail. I solat ed or combined, his statements did not unambiguous ly and unequivocal ly assert his right to silence. See People v. Davis , 46 Cal. 4th 539, 587

- 88, 9423

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 unequivocal ly invo ke the right to silence );
State v. Waloke , 835 N.W.2d 105, 112 (S.D. 2013) (re jecting 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 F ed . 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 Derri c k Bird, he ' s guilty '" and then stood up and said
, "' Y ou 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

n either were unequivocal invocations of right to remain silen t when viewed in context)

.

The district court properly admitted h is custodial statements

.24 F LACK ' S R IGHT TO P RESENT A D EFENSE

Throughout Flack's case, defense counsel expressed concern they would not be prepared for trial. Th at concern became especially acute after his original counsel
withdrew in 2015. In response , the court continu ed the proceedings until the following spring. Despite th at , the defense requested another continuance and repeated such requests through the pretrial proceedings.

Now, on appeal, Flack asserts the district court's scheduling orders violat ed 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, h e
statutor il y argues the district court abused its discretion by denying persistent
continuance requests. Second, h e constitutional ly assert s a due process denial under the
federal and state Constitution s

. W e reject the se claim s

.

Additional f

acts

Flack's court

- appointed defense team changed during pretrial w hen 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 continu ed the trial to February 22,
2016.

In November 2015, defense counsel filed a second motion to continue trial.
Counsel argued t he team's difficulty replacing the original attorney create d a deficiency
that could compromise Flack's right to coun se l. The team further noted it lacked25

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). T he team indicate d it was still developing its mitigation case. It had identified family members central to Flack's "social history" but had not yet interview ed them ; s ome 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 holiday s

.

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. E xpress ing frustrat ion with the apparent lack of progress , it denied the request without the S tate '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 v oir dire began the following week
, the defense filed its third continuance
motion

. T he court heard the motion in camera after that day's questioning . Defense
counsel reiterated the ir 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 of26

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 prepar ing 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 w hen the trial began, defense counsel asked for further postponement , saying only "[w]e believe we've litigated this issue thoroughly." The court denied the re quest.

Statutory c hallenge

— 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. T he 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 continu e 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

g uidelines and argues t h o se obligations made his case especially time consuming, justif ying his requested continuances. Generally, capital cases have "extraordinary complexity and demands" compared to noncapital case s

. 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 Guideli ne 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.

T he ABA Guidelines are a relevant guidepost for evaluat ing an ineffective assistance of counsel claim in a capital case , b ut they are not " coextensive with constitutional requirements." State v. Cheatham , 296 Kan. 417, 433, 292 P.3d 318 (2013)

. The g uidelines and their comment s are useful to gauge what is " a reasonable time to prepare for trial" under K.S.A. 22

- 3406 , a nd 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, t he g uideline s can context ualize the problems fac ing capital defense counsel, but caselaw ulti mately 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 found28

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, w e 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, g i v ing newly appoint ed 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 fact

finder 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 enter ing an appearance and trial. Nearly two years passed between his second
counsel enter ing an appearance and trial, and almost a full year passed between his third
counsel enter ing her appearance and trial. I nitial and second counsel worked together for
about one year and three months
, and the remaining counsel worked together for about 250 days before trial a fter 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 ruli ng 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 raise d 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

. T he 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 s econd 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. R ecogniz ing second counsel c ould 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

. Ov er the next months, the outstanding tasks narrow ed
,

even as the defense continued to press for postponement

. T he largest obstacle
, need ing a neuropsychologist
, became clear a s trial approached, and the court granted a short
continuance.30

Throughout th is process, the record reflects the court seriously considered the
defense's concerns and worked to address th em as they arose. It reasonably handled the
case and did not abuse its discretion.

Constitutional c hallenge

— r ight to p resent a d efense

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 State s Constitution
and under sections 5 and 10 of the Kansas Constitution Bill of Rights. We reject the se argument s

.

The Sixth Amendment states: " [T] he accuse d 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 defen c e ." 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 twi ce put in jeopardy for the same offense."

The phras e "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). I n 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 expeditious ness 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]
, " b ut 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 constitutiona l 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 trial32

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 F lack 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 t he district court's handling of continuance requests did not violate Flack's Sixth Amendment right to present a defense or his rights under section s 5 and 10 of the Kansas Constitution Bill of Rights.

D ENIAL OF F OR

- C AUSE C HALLENGES TO S ITTING J URORS

Throughout voir dire, the district court denied several defense for

- cause challenges

to selected jury members

. The se challenge s questioned prospective juror s' predispo sition 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 f

acts

When voir dire began , the court separated prospective jurors into six panels . It questioned two panels per day over nine day s to reduce the initial group from which the parties could exercise peremptory challenges. E ach 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. T he court ruled this was premature since the defense had not yet exhausted all of its peremptory strikes. After
exercis ing its seventeenth peremptory challenge, t he defense renewed its request for more strikes. The State opposed this for two reasons. First, the defense still had some peremptory strikes. Second, procedural ly it was unclear where the new strikes would
come from because alternate jurors were ne cessary

. The court denied the request , reasoning the defense had already struck the only juror who was arguably "automatic
dea th

. " Th e d efense 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
, br inging 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, t he 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 other s . 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 skeptic ism persisted

. After questioning the other jurors, the defense asked to remove two potential jurors, including J.B. G iven 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 th o se 18

.

Standard of r eview

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, p rospective jurors may be excluded whe n their view s on the death penalty " would 'prevent or substantially impair the performance of his du ties as a juror.'" Wainwright v. Witt , 469 U.S. 412, 424, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985). Th is 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. A nd a s 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 conviction35

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

. B ut she "need [ed] more information to
make a decision." C ounsel 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 suggest ing 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 mad e 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 mu st 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 agree ing 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 c ontrary to Flack's contention , during voir dire
, M.F. consistently expressed she could not definitively answer how various factors would weigh in her decision

making 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 persuasive ness rather than a complete rejection

.37

Finally, Flack seemingly argues a juror is biased if he or she is u nwilling to rely on the nebulous concept of mercy alone for mitigation. But h e cite s 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." K

ansas v. Carr , 577 U.S. 108, 119, 136 S. Ct. 633, 193 L. Ed. 2d 535 (2016). So e ven 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. A s 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 instruct ions . He acknowledged "there's no rehabilitation" for some people b ut 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
, " h is answer was, "Let the punishment fit the crime." During voir dire, w hen 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 acknowledge d 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 pen alty.

Following the conclusion of J.H.'s panel, defense counsel challenged him for cause
based on his questionnaire responses. C ounsel interpreted J.H.'s "eye for an eye" response

as potentially shift ing 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
characteriz ing him as "middle of the road" on the death penalty. The court found no

re ason to doubt his fair ness and impartial ity 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 for

cause challenge to J.H., because of his questionnaire responses: "Let the punish ment 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., t he record establishes J.H. would listen to the evidence
and decide the case on the facts and law. And w e hold the district court did not abuse its
discretion in denying th ese challenge s

.39

Jurors n ot c hallenged for c ause

Besides M. F . and J.H., Flack argues three other seated jurors were similarly biased: J.S., C.C., and G.B. He asserts b oth J.S. and C.C. expressed their belief that childhood experiences and mercy were ir relevant considerations for determining punishment
, cit ing only the ir 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 prejudic ing 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 depend ing 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

w as 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, s he 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 accountable40

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

" weigh them up" in her decision

- making process.

When questioned by d efense 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

s he clarified a commitment to fair ness and honest y in weighing these factors. After further questioning, C.C. agreed she would give the defense's mitigators weight
, consider
the m , 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 p unishment, 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 t hem but not give them relevance."

O n 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.

answer ed, "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 impos ing 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 had41

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.

T he State , of course, did not have a chance to rehabilitate the jurors b ecause Flack did not challenge the m 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 the se jurors' prejudice s focuses on the ir 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. N othing shows these jurors were improperly prejudiced or biased against Flack.
The district court conducted voir dire careful ly and cautious ly
, addressing the defense's concerns seriously. The follow

- up voir dire questioning either clarified or reha bilitated each juror's positions , so t he court could reasonabl y conclu de these jurors w ould be fair and impartial. We find no error.

G UILT P HASE P ROSECUTORIAL E RROR

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 statement s to describ e the discovery of L.B.'s body was inflammatory and meant to provoke juror sympathy. Third, he claims a b aseball analogy during the State's closing rebuttal argument gave an incorrect reasonable
doubt definition. We disagree.42

Standard of r eview

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 th e 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 s cales

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 b ased 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."

The se 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 life43

experiences, and your values." The prosecutor concluded i f "[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 , 54 8 U.S. 163, 17 9 , 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 th at 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 s entence 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 b ecause "'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 . B ut we do not agree with his conclusion that the prosecutor's44

"level[ing] the scales" phrasing contradict ed th at presumption or misstate d the law. The "default" sentence after a cap ital 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 p resumption of death. Rather, it conveyed just the opposite : that the guilty verdict itself carried no weight in sentencing deliberations.

We hold t he prosecutor's description of the deliberative process accurately explained the State's burden to prove an aggravating circumstance and the weighing process that follow s

. The prosecutor's comments were not error.

Prosecutor's r eference 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). W hen deciding whether a prosecutor's
statement fall s outside the wide latitude given, we consider " ' the contex t 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. N ow [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 t o 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. T he only reference to Mother's Day was followed by 11 days of testimony and evidence , so its alleged appeal to passion seems overblown

. T he State never mentioned it again. Nor did it ever impl y 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 a nalogy

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 t hat 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 b e 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 depict ing 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 jurors47

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. C ontrary 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 substitut es 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 de scribe reasonable doubt , let alone define it . The prosecution does not mention reasonable doubt until later
, when it still does n ot try to define it.

Based on the context, this permissibl y appeal ed to the jury's common sense to evaluat e 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 argu e 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 simpl y cannot win the season

— it is not possible to get to the World Series. By analogy, the prosecutor point ed out there was more than enough contrary evidence to show Flack's version was impossible. We hold t h is was not error.

W e find no prosecutorial error during the trial's guilt phase

.48 P ENALTY

- P HASE P ROSECUTORIAL E RROR

Flack alleg es three prosecutorial errors that occurred in the penalty

- phase closing arguments. H e claims the prosecutor erred by (1) repeatedly asking the jury to consider,
"What is justice ?" (2) stat ing facts not in evidence when he impl ied Flack could access mental health treatment in prison and stat ed Flack's family would be "healed" regardless
of the sentence
, and (3) improperly interject ing opinion into the case by suggesting a s a "seasoned prosecutor" he kn e w th e death penalty was appropriate here

. We hold no error
occurred.

Standard of r eview

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, t he 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
conclusio n regarding the weight of the aggravating and mitigating circumstances.'" 305
Kan. at 315.

" What i s j ustice ?"

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
unabl e 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
foot steps, 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 the50

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 pa role? That decision is for you to make." (Emphases added.)

Flack compares the se 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

— t he prosecutor correctly set forth the penalty phase procedure s , and he never asked the jury to return a death verdict or argue d 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. T he 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 w e noted the prosecutor "'divert [ed] the51

jury from the evidence so as to obtain a conviction based upon sympathy for the victim.'"
300 Kan. at 99 8

.

Our pre

- Holt caselaw similarly distin guished 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 inst incts 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, notwithstandin g 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 improper ly eliciting sympathy. See , e.g., State v. Gallegos , 313 Kan. 262, 276, 48552

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
h ere, 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 retu rn 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 si milar 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 j ustice for the victims

—he acceptably told the jurors their job w as to determine a just

sentence.

Mental h ealth t reatment and f amily h ealing

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 characterization s 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. Fl ack 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 t old 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 support s Flack

.

Flack's characterizations are overstated. First, the prosecutor 's mental health comments presented only hope and desire, no t 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 w as 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 heal ing
, 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 deci sion . 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 erron eous

. The prosecutor did not impermissibly state facts outside of evidence during closing.54

Self

- reference as " s easoned p rosecutor" and s uggesting
, "If n ot t his c ase , w hat c ase ?"

Finally, Flack claim s 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 request ed jurors determine an appropriate sentence given the facts, instructions, and weigh t 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 i s 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: I n the context of witness credibility
, a prosecutor expressi ng 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 civil55

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 h andled capital murder death penalty cases before, also homicide cases, but I still get nervous ." Th is statement 's

purpose was simply to relax nervous jurors.

Second, t he prosecutor use d the phrase "seasoned prosecutor" during the penalty

phase closing colloquially to remark on his age , not to tell jur ors 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, t he "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 relat ed to his separate query , "If not this case, what case?" during penalty

- phase closing. The logical leap is too large to conclude combining the se 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. The56

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, b ut pulled it twice

— execut ed 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. T he Newlon prosecutor continued that theme but added several more erroneous statements. He emphasized h e was the "'top law enforcement officer of the [c]ounty,'" compar ed the
defendant to infamous mass

- murder er s, 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 follow s 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 prosecutor ial remark here, taken in context, permissibl y and simply requested jurors to accurately perform their jobs by following their instructions. The prosecutor did not commit error.

H EINOUS , A TROCIOUS , OR C RUEL A GGRAVATING C IRCUMSTANCE

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
sche me 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. 20 1 2 Supp. 21

- 6624(f) 's exact language. (Emphasis added.)58

Flack argues the heinous manner aggravator is limited to "the crime
, " while t he 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 r eview

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 constitut ional 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 denied59

[him] due process." B efore discussing Dunn , and what it mean s here , we note the process for pursuing the death penalty differ s 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 constitut e 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 cou rse 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 prosecut or 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).60

But t he notice of intent is not the State's only obligation. T he 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 allow s the defendant to begin their preparation for trial as it serves notice that th e case will indeed
be a death penalty case, thus allowing the m 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." K leypas 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 support s 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.61 "(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.62 "(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 correct ly states the heinous manner aggravator applies to "the crime
, " not the crime's elements
, b ut his conclusion that each killing in a multiple

- killing capital
murder must have been committed heinous ly does not necessarily follow.

As readily seen, the aggravating circumstances apply to var ious subjects

— such as "the defendant," "the crime," and "the victim"

— between subsections. Subsection (f)
defin es the heinous manner aggravator with both "the crime" and "the victim

. " It provides

a nonexhaustive list of circumstances a jury may find heinous includ ing 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 requir ing 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,

a ny 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)

. T he
scheme does not assign weight to the number of aggravating circumstances ; t he finding of such a circumstance merely triggers the weighing process.63

The State alleged the heinous manner circumstance and gave Flack notice about its
intended evidence to prove the circumstance specifically related to Flack kill ing K.B. Imposing a death sentence here did not deprive Flack of due process.

J URY I NSTRUCTION S : S ENTENCING P ROCEEDING AND D UTY

- TO

- R EACH

- V ERDICT

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 errone ously 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 r eview

We review jury instruction s 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 to64

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) (r equir ing the State give written notice within seven days of arraignment it inten ds to seek the death penalty ) . Otherwise, a person convicted of capital murder receive s 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 " t h e 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 deci des to pursue that option, the given instruction here fairly stated the
law and did not mislead the jur y

.

Next, a t the penalty phase 's conclusion , the court instruct ed the jury on complet ing
the verdict form
, explain ing
, " [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 "unable65

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 suggest ed 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, signe d 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.)

A ccording to Flack , the third sentence conflicts with the first . He argues,
"S entence 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 e ven 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 d oubt that a death sentence is warranted." 272 Kan. at
1062.66

Flack correct ly notes the jury is not under a duty to reach a unanimous verdict
, b ut he fails to establish the given instruction might lead jurors to believe such a duty existed.
T he 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

. N othing impl ied it must reach a unanimous decision to impose a life sentence.

E IGHTH A MENDMENT C HALLENGE

Flack raises a categorical Eighth Amendment challenge to his death sentence , even though h e 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. W e see no reason to revisit its holding.

S ECTION S 1 AND 5 OF THE K ANSAS C ONSTITUTION B ILL OF R IGHTS

Flack challenge s 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 unconstitutionally67

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 transcrip ts 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 fo rfeitable 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 th at 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 d eath qualification under
K.S.A. 22

- 3410 does not violate section 5." 314 Kan. at 653.68

Flack offers no new authority or argument warrant ing revisiting of R. Carr II

.

C UMULATIVE E RROR

Based on our rulings , the cumulative error doctrine has no application

. State v. Sieg , 315 Kan. 526, 53 6 , 509 P.3d 535 (2022).

C ONCLUSION

We affirm Flack's convictions and sentence. N o 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).

* * *

S TEGALL , J., concurring: I concur with the majority's decision to affirm Flack's
conviction s and sentence. I depart, however, from the majority's application of section 1
of the Kansas Constitution Bill of Rights in the death penalty context. In my view, our court continues to be wrong by declaring that criminal defendants have no protections
under section 1. See State v. Carr , 314 Kan. 744, 782

- 83, 502 P.3d 511 (2022) (Stegall, J., concurring) ("[T]he majority makes it explicit that a criminal defendant has no section 1 protections at all. Indeed, according to the majori ty, 'the state's power to punish' is limited only by 'due process' and 'cruel or unusual' provisions which 'do not arise under section 1.'")
, cert

. denied 143 S. Ct. 5 84 (2023)

.69

Instead, I have consistently argued that properly understood, section 1 provides a substantive check on the police power of the state

— including the power to kill its own
citizens. See Hodes & Nauser, MDs, P.A. v. Schmidt , 309 Kan. 610, 742, 440 P.3d 461 (2019) (Stegall, J., dissenting). To effectuate that check on state police power, I articulated the judicial test

— rooted in our history and precedent

— courts should apply to any section 1 challenge. 309 Kan. at 767 (Stegall , J., dissenting).

But here, as in Carr , "[t]he lower courts have not inquired into the [police power test], the parties have not briefed the issue, and this court has declined to take it up."
Carr , 314 Kan. at 783 (Stegall, J., concurring). It is true that Flack has at least gestured toward applying the appropriate section 1 police power test I set forth in Hodes . But he has not made any substantive argument beyond a few conclusory statements
, and the record below is entirely void of any findings that might support his claim . In a future case, I am open to considering the constitutionality of the Kansas death penalty under section 1's limit on state police powers. But doing so would require an actual showing based on something more substantial than Flack has provided to demon strate that our death penalty is not reasonably related to the furtherance of the common good.

So as before, given "the monumental consequences of the state's exercise of this most final, most irreversible, and most grave use of power

— killing a human person

— I am left with a profound and unshakable disquiet about our court's blessing upon these

proce dures." 314 Kan. at 783 (Stegall, J., concurring). And because I cannot "presume our death penalty is not reasonably related to the furtherance or protection of the common good

— or that it is otherwise arbitrary, irrational, or discriminatory .

. . I am lef t with no option other than to concur in the judgment." 314 Kan. at 784 (Stegall, J., concurring).70 * * *

W ILSON , J. , concurring in part and dissenting in part: The majority finds ambiguity in Kyle Flack ' s many attempts to invoke his Fifth Amendment right to silence during his interview with police in the early morning hours of May 8, 2013. I cannot agree. Taken collectively, I would hold Flack ' s final four statements constitute an unequivocal invocation of his right to silence

— an invocation which his interrogators failed to scrupulously honor. Because I view the admission of Flack ' s post

- invocation statements to be prejudicial to his convictions for the murders of Andrew Stout and
Steven White, I would reverse those convictions and remand for a new trial. And while I
believe the evidence of Flack ' s guilt for his capital murder charge was robust enough to prevent reversal of that conviction, I cannot conclude that the admission of Flack ' s statements was harmless as to his sentence of death. Thus, for the reasons below, I respectfully concur in part in the result and dissent in part.

O ur test here is ostensibly an objective one: " whether a reasonable police officer under the circumstances would understand the suspect ' s statement as an assertion of a
Miranda right. " State v. Aguirre , 301 Kan. 950, 957, 349 P.3d 1245 (2015). As the majority notes, despite Flack's failure to frame this issue under the right to silence at trial,
we can still consider it under K.S.A. 2022 Supp. 21

- 6619(b). Slip op. at 14

- 15. Further,

e ven without testimony on the specifics of Flack's statements , the record before us
contains the best evidence available in the form of the interview video. We know the time and place of this interview; we can assess for ourselves Flack ' s tone and manner, as well
as the detectives ' varied responses to his at

- issue statements.

More importantly, the facts before us also reveal that the investigators ' key
concern in the interview was " finding [L.B.], " who was still missing then and might

— for71

all they knew then

— still have been alive. This concern can be readily divined from
interviewers ' questions themselves: the first thing Alexander asked Flack was " if he knew where [L.B.] was located. "

I mention this not because the officers ' subjective understanding of Flack ' s statements matters to our analysis

— it does not

— but to provide context for their responses to those statements. To put a finer point on it, their uncertainty over L.B. ' s fate quashed all incentive for the detectives to treat any statement as an invocation of the right to silence. In other words, the detectives effectively wore blinders of incomprehension when presented with Flack ' s repeated statements because they wanted to prolong the interview; they wanted Flack ' s statements to be ambiguous.

This is why the detectives ' subjective understanding of Flack ' s invocations is, and must be, irrelevant to whether Flack invoked his right to silence. Anyone can appreciate
the detectives ' concern for finding L.B. For all they knew at the beginning of the interview, she might still have been alive, and Flack might have been the key to bringing her to safety. But as an appellate court, we must concentrate on the statements Flack
made and on whether a reasonable officer would understand that Flack was exercis ing his constitutional right to stop the inquiry by invoking his right to remain silent. The officers '
understandable concern for L.B. does not lessen their responsibility to Flack. But this concern necessarily colors the detectives ' responses to Flack ' s statements, including the alleged invocations here. Thus, we must consider what Flack said

— and the
circumstances in which he said it

— to conclude whether a reasonable officer would have understood him to be invoking his right to silence.72

Flack ' s final four statements, collectively, were clear and unequivocal.

Flack points to several statements as attempted invocations of his right to silence. I agree with the majority that most of Flack's earlier statements were ambiguous for the reasons discussed in the majority opinion. Slip op. at 16

- 19 . But I cannot agree that
Flack ' s final four " take me to jail " statements

— the ones the majority labels as Flack's seventh through tenth

— were ambiguous. Slip op. at 19

- 22. Among other possible interpretations, the majority suggests that
, " In context, these comments show Flack
be lieved the questioning about what happened at Stout ' s house was irrelevant, rather than exercising a constitutional right ." Slip op. at 22. It further reads Flack's statements as showing that Flack " 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 "

— and, thus, Flack was not invoking his right to silence. Slip op. at 22.

But while the cold words of the transcript may lend credence to the majority's position that Flack might have meant any number of things, the way Flack said them

— along with their repetition

— clarifies any ambiguity, in my view. And although an appellate opinion cannot entirely convey the nuanced audiovisual information presented in the videos of Flack's interrogation, that information is at least as important i n establishing the context and meaning of Flack's words as the words themselves. To clarify the bas is for my dissent, then, a bit of additional description is needed.

As the majority notes, Flack made his final four " take me to jail " comments during a portion of questioning about the identities of his violent, drug

- related contacts in Emporia. Slip op. at 19

- 22. At first, a s the detective began to explore Flack ' s involvement with these contacts, Flack abruptly said, " Take me to jail ," and looked down at his lap. The detective asked a question. Flack did not respond, but only said
, " Take me to jail. " The detective asked another question. Flack again only said
, " Take me to jail. " This time,73

there was silence for several seconds. At this point, I believe Flack ' s intent to invoke his right to remain silent became clear. Even so, the detectives again asked more questions. After answering a couple of them, Flack again said, " Take me to jail. " This time he crossed his arms and put his head down on the table. He clearly wanted to stop the
interview.

The worst of Flack ' s self

- incriminating statements followed.

These last four statements of
, " Take me to jail ," lacked some of the accompanying phrases held elsewhere to render similar statements ambiguous, and their exact repetition in the face of several different questions underscored what was, in my view, a clear intent
to cut off the interview. Cf. People v. Jackson , 1 Cal. 5th 269, 336

- 41, 205 Cal. Rptr. 3d
386 , 376 P.3d 528 (2016) ( " Man just take me to jail man. I don ' t wanna talk no more ,"

was clear and unambiguous

. ); State v. Jang , 359 N.J. Super. 85, 90, 819 A.2d 9 (App. Div. 2003) ( Defendant's statement
, "' I don ' t want to talk anymore. Take me to jail ,'"
terminated the interview

. ). Any alternative interpretations of these statements strains credulity , in my view : if Flack meant anything besides " take me to jail, " he would have said as much during one of his repetitions of the phrase. That he did not crystalizes the clear and unambiguous meaning of his words and their necessary implication: terminate the interview by taking him to jail. Unlike the majority, I thus believe Flack's statements collectively made his meaning clear. I cannot support the majority's speculation as to
Flack's mea ning, that is, that he was merely expressing his belief about the irrelevance of the detectives' line of questioning.

The State claims that Flack's earlier, ambiguous responses taint the meaning of his later ones. But we have soundly rejected such arguments in the past, and I would do so again here. Cf. State v. Walker , 304 Kan. 441, 456, 372 P.3d 1147 (2016) (earlier ambiguous statements did not undermine the clarity of a later set of statements that74

"[c] ollectively . . . would have made it clear to reasonable law enforcement officers " that a suspect was invoking his Fifth Amendment right to silence). As I have written, Flack's
words

— and, perhaps more critically, how he said them

— rendered his meaning perfectly
clear to a reasonable officer.

The majority also finds ambiguity in two of Flack's responses

— "What do you want me to tell you?" and
, "I don't know the f uck in' people"

— which, the majority, claims, " lead to a reasonable inference Flack meant 'I don't know,' rather than invoking his right to remain silent." Slip op. at 21

- 22 . But the majority's reliance on these
statements is flawed. Flack made the first statement between his ninth and tenth attempted invocations, and he made the second one after his tenth and final attempted
invocation. Sl ip op. at 2 1

- 2 2 . In my view, Flack had already made his meaning clear, at the very latest, by his ninth overall statement: the penultimate "take me to jail" comment. Statements made after an invocation cannot be used to retroactively "cast doubt on the adequacy" of that invocation, as the majority attempts to do now. E.g., Smith v. Illinois
, 469 U.S. 91, 98

- 99, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984) . " In other words, if the interrogators simply ignore the suspect ' s invocation of rights and continue to ask questions, the suspect ' s compliance with the further questioning does not invalidate or render equivocal the prior invocation of rights. " Aguirre , 301 Kan. at 958 . Thus, I am troubled by the majority's efforts to retroactively interpret Flack's "take me to jail" statements by relying on his later responses.

In evaluating the clarity of an alleged invocation of the right to silence, words matter. Context matters. Magic words are not required. Emspak v. United States
, 349 U.S. 190, 194, 75 S. Ct. 687, 99 L. Ed. 997 (1955). When we speak of what a " reasonable
officer " would have understood, we are referring to an individual of ordinary intelligence possessed of ordinary linguistic comprehension skills. We are not speaking of individuals who, for one reason or another, can apply the principles of arcane philosophies and75

lexical sophistry to divine ambiguity where, in any ordinary conversation, there would be none. A reasonable officer is not one motivated to find ambiguity no matter where or how his goal finds quarter. This latter category naturally includes professional investigators who may be motivated to remain, and thus do remain in the face of all evide nce to the contrary, doggedly " uncertain " about a suspect ' s meaning

— particularly those guided by the best of intentions, such as the urgent need to locate a missing ch ild and bring her safely home. See, e.g., Sadeghi, Hung Up on Semantics: A Critique of Davis v. United States, 23 Hastings Const. L.Q. 313, 336 (1995) ( " Perhaps the most troubling aspect of
the threshold

- of

- clarity approach is that it leaves the fox guarding the henhouse. The police have little incentive to find that a statement was a clear invocation of rights. " ).

Yet law enforcement officers, prosecutors, and courts alike have shown over and over their own mastery of speculative mental gymnastics where a suspect may be invoking the right to silence or the right to counsel, but not " clearly so. " See generally 2 LaFave, Israel, King & Kerr, Criminal Procedure § 6.9(g), n.184

- 85 (4th ed.) (cataloging many cases finding ambiguity in " even a statement which itself appears to amount to an assertion of the right to remain silent "

— including the outright refusal to speak). N or do
courts consider silence itself

— which a layperson might reasonably view as perhaps the purest indication that a suspect is invoking the right to silence

— to be a clear and unambiguous invocation of the right to silence. E.g., Evans v. Demosthenes , 902 F. Supp.
1253 , 1259

- 60 (D. Nev. 1995), aff ' d 98 F.3d 1174 (9th Cir. 1996). Some of these exercises in linguistic contortionism pass beyond the point of parody. See, e.g., State v.
Demesme , 228 So. 3d 1206 , 1206

- 07 (La. 2017) (Crichton, J., concurring) (fin ding ambiguity in the phrase "' if y ' all, this is how I feel, if y ' all think I did it, I know that I
didn ' t do it so why don ' t you just give me a lawyer dog cause this is not what ' s up '"
because " the defendant ' s ambiguous and equivocal reference to a ' lawyer dog ' does not
constitute an invocation of counsel that warrants termination of the interview " ).76

Thus, despite the ostensibly objective, non

- talismanic standard we purport to apply, " On the whole, courts have set a high threshold for explicit invocation, but it remains unclear what exactly a suspect must say or do to explicitly invoke silence. " Rushin, Rethinking Miranda : The Post

- Arrest Right to Silence , 99 Cal. L. Rev. 151, 168 (2011). One is forced to wonder, despite a plethora of caselaw to the contrary, whether magic words are required, and even whether the magic words must be followed with

actua l silence before a suspect clearly and unambiguously invokes the right to silence under the Fifth Amendment. See, e.g., Gee, Invoking the Right to Counsel and Right to
Remain Silent: It '

s Just Not That Clear , 32 Miss. C. L. Rev. 69, 81

- 82 (2013) ( " As the
erosion of Miranda continues with each subsequent Supreme Court term, the limitations placed on both ambiguous requests for counsel under Davis and the right to silence under Berghuis seem destined to remain in place, or perhaps become even more narrow. " ). The very meaning of the words " clearly and unambiguously " strains, cracks, and sometimes breaks under the burden we place upon it. This case exemplifies this deterioration.

In other areas of police investigation, courts often give weight

— if not total
deference

— to an officer ' s deductions, instincts, training, and experience. See, e.g., State
v. Cash , 313 Kan. 121, 133, 483 P.3d 1047 (2021) ( " deference " given to officer ' s testimony that " in her training and experience a Crown Royal bag ' more often than not ' contains drug paraphernalia " for purposes of reasonable suspicion); State v. Jones , 300 Kan. 630, 647

- 48 , 333 P.3d 886 (2014) (recognizing " some deference " to an officer ' s training and experience in assessing reasonable suspicion based on suspicious driving, but still agreeing " with the district judge that the officer acted on a hunch, not reasonable suspicion " ); State v. Moore , 283 Kan. 344, 359

- 60, 1 54 P.3d 1 (2007) (giving

" appropriate deference to the opinions of a particular law enforcement officer on the scene who, with thousands of traffic stops, is highly experienced in roadside searches and seizures and determinations of reasonable suspicion " while cautioning against " a total, or substantial, deference to law enforcement ' s opinion concerning the presence of77

reasonable suspicion " ); State v. Wonders , 263 Kan. 582, 598, 600, 952 P.2d 1351 (1998) (trial court considered officer ' s training and experience in finding probable cause to believe a bulge in a suspect ' s pocket was marijuana, but recognizing " that experienced, knowledgeable law enforcement officers know the ' magic words ' to be related when their searches and seizures are challenged " ). Yet in the arena of the Fifth Amendment, courts constructively infantilize officers by imputing to them a basic lack of language comprehension. Moreover, our legal framework provides little incentive for officers to
exercise caution in the face of a possible invocation

— anything besides a precise
recitation of some court

- approved legal formula. After all, if a court can divine any ambiguity at all in a suspect ' s statements, it will reward an o fficer ' s constructive

" uncertainty " over any language that does not contain a precise invocation incantation. In other words, we have created a system under which officers have little reason not to gamble by refusing to scrupulously honor an invocation

— unless , that is, it is expressed through a set of specific legal magic words.

Here, a reasonable detective could not have understood Flack ' s repeated identical

" take me to jail " statements to mean anything besides a request to terminate the interview
and " take [him] to jail. " The majority ' s alternative view

— that Flack ' s responses could be interpreted as merely bemoaning the futility of the detectives ' line of questioning

— appears strained to me. " We should not seek ambiguity where none exists " to sanction detectives' continued questioning in the face of an invocation of the right to s ilence. Cf.
U. S. Fid. & Guar. Co. v. W. Cas. & Sur. Co. , 195 Kan. 603, 605, 408 P.2d 596 (1965) (refusing to invoke the rule of liberal construction when an insurance policy used unambiguous language). Flack repeated his precise request to be taken to jail over and over; I cannot view such exact repetition as anything other than an attempt to terminate
the conversation.78

Thus, i n my view, Flack did what he needed to do to invoke his right to silence under the Fifth Amendment. An invocation need not be perfect

— and Flack ' s was not

— but Flack ' s meaning should have been clear to his interviewers all the same. The detectives failed to scrupulously honor that invocation, and thus the district court erred in failing to suppress his statements.

This failure also extends to the statements Flack made during the second interview, which the prosecution used to develop its theory of the case. As we have said,

" Based on Miranda and [ Michigan v. Mosley , 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975)], if a defendant invokes his or her right to remain silent, the interrogation must stop immediately and the right must be scrupulously honored. This does not mean an interrogation resumed at a later tim e is invalidated if the defendant knowingly and voluntarily waived the right to be silent at this later time and the
defendant ' s right to be silent was scrupulously honored while it was invoked. " State v.
Robinson
, 261 Kan. 865, 887

- 88, 934 P.2d 38 (1997).

In Aguirre , the court considered " whether the police could obtain a valid Miranda rights waiver at a subsequent interrogation after refusing to honor an invocation of those rights at the first interview. " 301 Kan. at 961. The Aguirre majority found that the defendant attempted to invoke his Miranda rights and cease questioning in an initial interview, but that detectives failed to scrupulously honor that invocation. This, the majority concluded, meant that Aguirre ' s statements in the first interview should have been suppressed. In considering Aguirre ' s statements at a followup interview, the majority applied a two

- part analysis previously set forth in State v. Matson , 260 Kan. 366, 374, 921 P.2d 790 (1996), and State v. Mattox , 280 Kan. 473, 481, 124 P.3d 6 (2005):79

" [T]he validity of a Miranda waiver, after a suspect has previously invoked those rights, depends on whether ' the accused (a) initiated further discussions with the police and (b) knowingly and intelligently waived the previously asserted right. ' The State failed the
Matson test by reinitiating the second interrogation. [Citations omitted.] " Aguirre , 301
Kan. at 961.

Thus, the court concluded, " Under that circumstance, the police were constrained, if not prohibited, from reinitiating questioning " and " the statements obtained in the second interview should have been suppressed, as well. " Aguirre , 301 Kan. at 961

- 62.

Here, detectives did not stop their questioning after Flack ' s invocation. Instead, they continued to try to convince Flack to " help us find this baby " by zeroing in on the

" Mexicans " or " South Side " South Side Lo b os " he had mentioned. And while the second interview began about fourteen

- and

- a

- half hours after the first interview ended

— an interlude in which Flack was offered three meals and " a place to rest "

— and while Flack was given fresh Miranda warnings at the outset of the second interview, detectives, not Flack, initiated the second interview. Thus, Flack ' s state ments in the second interview should have also been suppressed.

Harmlessness

— Guilt Phase

I turn next to the harmlessness of the district court ' s error.

" When a defendant ' s constitutional rights have been violated, the State must

' carry the burden of proving " beyond a reasonable doubt that the error complained of

. . . did not affect the outcome of the trial in light of the entire record, i.e., proves there is no reasonable possibility that the error affected the verdict. "'" Walker , 304 Kan. at 457.80

I begin with the error ' s effect on the guilt phase of Flack ' s trial, beginning with his conviction for the killing of White.

White ' s Killing

During his second interview, Flack admitted that he and Stout killed White together, each of them shooting White once with a shotgun. Flack further admitted to covering White ' s body with a tarp and leaving it in the outbuilding for more than a week. As the prosecutor emphasized during closing arguments, evidence suggested that White died from two gunshot wounds, each caused by PDX Home Defender shotgun rounds. In his pre

- " invocation " statements, Flack admitted purchasing Defender rounds for his shotgun.

The shotgun that was partially recovered from the Emporia recycling center

— which contained a mixed DNA profile from at least three people, of whom Flack could not be excluded as the major contributor

— fired at least one of the shell casings found in the outbuilding where White was killed. Evidence also suggested that this same we apon fired the five shell casings recovered from the residence ' s master bedroom, where the bodies of Stout and K.B. were found and where (based on bloodstains) evidence suggested L.B . was shot. The weapon was a 12

- gauge " pump action " shotgun that required a discrete action to eject a spent round and chamber a new round before each individual shot could be fired. Evidence suggested that Flack owned a 12

- gauge pump action shotgun that he kept at Stout ' s property, of which he was " proud. " One witness
noted that Flack " had [the shotgun] with him everywhere he went " and that he had even slept next to it at times. In his pre

- " invocation " statements, Flack admitted that he owned

a " Remington 1300. "81

In closing arguments, the prosecutor noted the lack of forensic evidence of a struggle surrounding White ' s death and highlighted evidence suggesting White was shot in the outbuilding. The prosecutor also emphasized Flack ' s own statement:

" And consider finally the defendant ' s own description of that particular incident. I shot him, he dies. He indicated to law enforcement, I shot him and at the time I shot him, he claims Andrew Stout shot him first, but he indicates that I shot him, he was still
alive when I shot him and he d ies. Those are the defendant ' s own words. "

But while the evidence suggests that White was killed in the outbuilding on Stout ' s property, possibly with the shotgun partially recovered from the Emporia dump, major uncertainties exist surrounding the timing and circumstances of White ' s killing. White was last seen alive on April 20, 2013. As Flack points out, jurors heard testimony that several individuals were at the residence around this time, including Joseph Berger, brothers Andrew and Rocky Helm
, Dylan Phillips, Stout, and Flack, among others. Som e of these guests fired weapons at Stout ' s property

— a " good shooting spot. " Jurors also heard testimony that White and Stout " butted heads often. "

The State highlights evidence that Flack " discouraged " his friends from contacting
the authorities about White ' s disappearance. The State highlights circumstantial evidence suggesting that Flack killed Stout, L.B., and K.B., which further implies that Flack also killed White; as the State puts it, Flack " was the only person of that group to walk away
from the residence alive. " But while this may be a reasonable extrapolation, it does not
establish no reasonable possibility that Flack ' s confession to killing White affected the jury ' s verdict. In particular, the killing of White stands apart in both time and place from the killings of Stout, K.B., and L.B., who were all killed several days after White and inside the residence, rather than the outbuilding. In my view, the forensic evid ence suggesting Flack ' s guilt is not overwhelming enough to overcome the prejudicial effect of82

his direct confession to White ' s murder. Thus, I would reverse his conviction for White ' s murder and remand for a new trial.

Stout ' s Killing

Stout was shot four times with a shotgun, including once in the back. Shell casing evidence suggested that the shotgun that was partially recovered from an Emporia recycling center was used in the killing of White, Stout, K.B., and L.B. While Stout was
found in the same bedroom as K.B. ' s body (where L.B. was also likely shot), the evidence suggests he was killed at least a few days before them

— between April 28 and 30, 2013, rather than between May 1 and May 5.

Surveillance camera evidence established that Flack accompanied Stout on a trip to Ottawa on April 28. On that trip, Stout wore the same shirt in which he ultimately died. Circumstantial evidence suggests that Flack further accompanied Stout to Emporia,
al though the surveillance camera evidence is less clear on this point. Yet this evidence still does not directly place Flack at Stout ' s residence at the time of Stout ' s killing, although it may suggest that he was still with Stout at that time. Additionally, Flack ' s fingerprints were present on items in the bedroom where Stout and K.B. were found. Evidence also placed Flack at Stout ' s residence around and after the time Stout was likely killed, and Flack made false statements to others concerning Stout ' s whereabouts after
Stout ' s death. For instance, when Phillips stopped by on April 29, he met only Flack, who told him that Stout was running errands before work.

Unlike White ' s killing, little evidence supported the presence of other individuals
at the residence

— other than Flack

— during the timeframe of Stout ' s killing. Flack ' s brief
admits that evidence existed to establish Flack ' s presence at the house after Stout ' s death, that Flack made false statements about seeing Stout after he would have been dead, and83

that Flack " disposed of the shotgun used to shoot Mr. Stout. " But Flack points out that

— other than his statements

— there is no evidence he was present at the precise time of
Stout ' s death, much less that he was the shooter. While that much could be inferred from
his later actions

— not the least of which was remaining at the house afterward

— any such inferences cannot overcome the prejudicial impact of the admission of his statements, including his admission that he was present at the time of Stout ' s death. Add itionally, while circumstantial evidence could support the inference that Flack was using Stout ' s phone after his death, that inference could not then support a new inference that, therefore, Flack was Stout ' s killer. Cf. State v. Colson , 312 Kan. 739, 750, 480 P.3d 167 (2021 ) (inference stacking is prohibited). Moreover, any error resulting from the
admission of Flack ' s statements vis

- à

- vis the killing of White

— to which he admitted

— would also infect the jury ' s (otherwise justifiable) inference that Flack was, in fact,
Stout ' s killer. That the jury ultimately convicted Flack of second

- degree murder for
Stout ' s death further suggests some uncertainty about the circumsta nces of this killing, though I do not propose to read the tea leaves of the jury ' s verdict.

Consequently, while the circumstantial evidence supported Flack ' s conviction for
Stout ' s murder, it is not overwhelming enough to rule out all reasonable possibility that
the erroneous admission of Flack ' s statements affected the jury ' s verdict. Thus, I would
also reverse Flack ' s conviction for Stout ' s murder and remand for a new trial.

The Killing of L.B. and K.B.

In closing, the prosecutor focused heavily on forensic evidence to establish that L.B. and K.B. were killed close in time to one another. But the prosecutor asked jurors to

" consider his words to law enforcement " :84

" He was correctly able to inform law enforcement what the order of death was. Steven White first, Andrew Stout second, [K.B.] third, [L.B.] last. There ' s only one way that you
know that. There ' s only one way. You were there and you did it.

" He correctly knew the location of the bodies. He knew that Steven White was in the outbuilding. He knew that Andrew Stout was in the corner. He knew that [K.B.] was
buried near the bed. Now he claims he didn ' t know where [L.B.] was, but he did indicate that she was in a suitcase and that she was wrapped in a blanket. He also correctly described the [s]tate of [K.B.] ' s body, her clothing or lack thereof.

" Now in the defendant ' s statements to law enforcement there were at least eight versions and there are significant inconsistencies between each of the versions. It ' s for you to judge and determine and assess the credibility of all those different versions and
what inconsistencies there are.

" But the inconsistencies all have something in common. They are designed to take the focus and responsibility off of the defendant. It ' s always, you know, Andrew shot Steven White. Oh, Omar and Chewie, they ' re the ones that shot Andrew Stout and [K.B.] and [L.B.]. I was just there. He puts himself there during the murders but he ' s always got a little bit less of a responsibility. Yet he has all these details and there ' s all this evidence that all points to one person and one person alone, the defendant. "

In my view, the circumstantial evidence here appears strong enough to eliminate any reasonable possibility that the prosecutor ' s insinuation that Flack had " all these
details " affected the jury ' s verdict. Unlike the killing of White and Stout, the evidence surrounding the deaths of L.B. and K.B. effectively rules out any lesser degrees of homicide beyond premeditated first

- degree murder. K.B. was gagged, naked from the waist down, and had her hands bound behind her back with zip ties at the time of her
deat h. She was shot in the back of the neck by a shotgun while prone or kneeling on the ground. Her body was later turned face up and she was covered with a pile of clothes. After the clothes were placed atop K.B. ' s body, 18

- month

- old L.B. was shot in the back85

with a shotgun while facing the direction of her mother ' s body. Forensic evidence about
the contents of K.B. ' s and L.B. ' s stomachs further suggests that both were killed on the afternoon of May 1, 2013.

Moreover, the circumstantial evidence supporting a finding that Flack was directly involved in the killing of L.B. and K.B. is stronger than that supporting his convictions for the killing of White and Stout. For instance, cell phone data suggested that Fl ack was likely present at the residence on May 1 and May 2, 2013. On May 3, 2013, cell phone data suggested that Flack began the day at the residence, then moved within a mile

- and

- a

half from the place where L.B. ' s body was found, and then traveled to Empo ria, where his phone remained. Flack subsequently got a new phone.

A little after 5 p.m. on May 7, 2013, cameras captured images of an individual driving K.B. ' s car to an apartment parking lot near 12th and East streets in Emporia. The driver got out and th re w away a bag from the car into a nearby dumpster. The bag contained items belonging to K.B. and L.B., including L.B. ' s baby blanket. Douglas picked Flack up from the parking lot of Do

- B ' s restaurant sometime after 5 p.m. on the evening of May 7, 2013; this parking lot would have been very close to the parking lot
where K.B. ' s car was left. Circumstantial evidence thus suggested that Flack was driving
K.B. ' s car and was attempting to dispose of her and L.B. ' s property.

Like White and Stout, L.B. and K.B. were killed with a shotgun. Beyond the evidence that the shotgun recovered from the Emporia recycling center

— which was
Flack ' s

— fired several casings recovered from the residence, one of the shot shells fired from the shotgun was found on K.B. ' s leg. Finally, perhaps the strongest circumstantial
evidence of Flack ' s involvement in the killings can be found from the black zip ties in
Flack ' s bag, which were much like the ones used to bind K.B.86

Admittedly, the DNA evidence collected from K.B. ' s body did not strongly implicate Flack. For instance, the major DNA profile taken from the knot of the bandana used to gag K.B. fit K.B. ' s DNA, but Flack could not be excluded as the source of the minor profile contribution

— although that minor profile would be consistent with the DNA of one in eight individuals. This evidence further suggested that Flack had touched and, perhaps, even tied the bandana used to gag K.B. Further, although Flack could not
be exc luded as a contributor to samples containing mixed DNA profiles obtained from
K.B. ' s left hand fingernail clippings, this match was also weak

— about a 1

- in

- 28 chance. Moreover, Flack could be excluded as a contributor to DNA samples collected from
under K.B. ' s right hand fingernail clippings. No conclusion could be reached as to
whether Flack contributed to male DNA recovered from K.B. ' s pubic hair.

Despite the somewhat lukewarm DNA evidence, I believe the remaining
circumstantial evidence of Flack ' s guilt is overwhelming enough to render the erroneous admission of his statements harmless as to his conviction for killing L.B. and K.B. These killings occurred close together in time and space and could, realistically, only have
resulted from intentional and premeditated conduct. Thus, I concur in the result of the majority ' s decision to affirm Flack ' s capital murder conviction.

Harmlessness

—

Penalty Phase

I turn next to the harmlessness of the error in the penalty phase of Flack ' s trial. Flack argues that his statements amplified the State ' s description of K.B. ' s last moments,
eliminated " residual " doubt, and made him appear unsympathetic and remorseless before the jury.

But even if Flack ' s statements did not affect the jury ' s finding about the existence of aggravating circumstances, I find it probable that they affected the jury ' s weighing of87

aggravating and mitigating circumstances. The jury watched Flack give the detectives several versions of events, as the prosecution repeatedly highlighted. This could have led the jury to conclude that Flack was a remorseless killer who deserved to die for his
crimes.

Because I find it probable that Flack ' s statements impacted at least some of the individual jurors ' assessment of the mitigating circumstances, I would vacate Flack ' s verdict of death and remand for a new sentencing phase of the trial.

Conclusion

A " right " to silence which cannot be exercised in practice

— even by actual
silence

— is no right at all. Because the majority ' s analysis undermines the exercise of the constitutional right to silence by implicitly penalizing Flack for failing to utter the proper
incantation

— despite his repeated, clear requests that the detectives take him to jail, which would necessarily terminat e the interview

— I respectfully dissent. All the same, I concur in affirming Flack ' s conviction for capital murder, as I believe the e vidence of his guilt to be overwhelming enough to neutralize the prejudicial effect of the erroneous admission
of Flack ' s statements. Likewise, I concur with the majority ' s analysis about Flack ' s remaining claims of error.