dissenting: I respectfully dissent from the majority’s decision on the prosecutorial misconduct issue relating to premeditation, in which the majority holds that the prosecutorial misconduct is not reversible error. I would reverse.
First, notwithstanding its majority view status in this State, I continue to reject the notion that a person can premeditate a murder while committing the murder. In my view, concurrent premeditation is an oxymoronic concept that obliterates the distinguishing feature of first-degree premeditated murder. See State v. Appleby, 289 Kan. 1017, 1074-75, 221 P.3d 525 (2009) (Johnson, J., concurring in part and dissenting in part) (premeditation contemplates that the matter be thought over before commencement of homicidal conduct); State v. Warledo, 286 Kan. 927, 956, 190 P.3d 937 (2008) (Johnson, J., concurring) (premeditation requires having drought the matter over beforehand; “beforehand” must mean prior to commencing the death-causing act).
More specifically in this case, allowing the prosecutor to argue that a premeditated intent to kill “can be formed during the act itself’ directly contradicted the plain language of the jury instruction given in this case, which told the jury that premeditation means “to have formed the design or intent to ldll before the act.” (Emphasis added.) To me, arguing that the formation of an intent to ldll during the act fulfills the legal requirement that the intent to ldll must be formed before the act is unequivocally erroneous, regardless of the context.
*152Further, the instruction defining premeditation cautioned die jury that “the concept of premeditation requires more than the instantaneous, intentional act of taking another’s life.” Consequently, die jury had to struggle with the nonsensically confusing task of how to equate “during” with “before,” while excluding “instantaneous.” It is not surprising, then, diat the jurors in this case were apparently befuddled, as indicated by their request for a “reasonable definition of ‘instantaneous’ ” and their question as to whether “if someone decides to act and dien acts is that gap of time sufficient to declare pre-med?” The trial court answered the question by instructing die jury to re-read the instructional definition of premeditation but did not clarify that the juiy could disregard the prosecutor’s argument on how the jury was to apply that definition to the facts of this case. The majority’s pointing out that one of the prosecutor’s theories of premeditation may have comported with the plain language of the jury instruction does not answer the question of whether the jury was confused by the prosecutor’s other theory of premeditation which directly contradicted the plain language of the premeditation instruction. I can have no confidence in a jury’s conviction for premeditated murder when I have no confidence that the jury knew the meaning of “premeditated.”
Next, I am not persuaded that State v. Hall, 292 Kan. 841, 257 P.3d 272 (2011), is distinguishable from Warledo and this case solely on the basis of the time necessary to complete the homicidal conduct, i.e., that Hall could fire four successive shots from a handgun faster than Warledo could stomp his mother to death or Marks could stab his wife eight times. I submit that a human brain can form thoughts faster than the human body can translate those thoughts into action, and that Hall’s finger would not have pulled the handgun’s trigger the second, third, and fourth time without being told to do so by Hall’s brain. I further submit that a person’s thought process during an adrenaline-flooded, life-endangering crisis does not operate in tire thoughtful, contemplative manner suggested by some of our prior cases. Here, for instance, die apparently random delivery of multiple stabs to nonvital locations on *153the victim’s extremities indicates extreme rage more than considered behavior.
Perhaps we should be guided by our double jeopardy jurisprudence, where we analyze multiplicity by first determining whether the convictions arise from the same conduct. See State v. Schoonover, 281 Kan. 453, Syl. ¶ 15, 133 P.3d 48 (2006). To determine whether a defendant’s acts constituted unitary conduct, we look at such factors as whether the acts occur at tire same time and at the same location; whether the acts were separated by an intervening event; and whether some of the conduct was motivated by a fresh impulse. 281 Kan. 453, Syl. ¶ 16. I submit that we would not have allowed Marks to be convicted of seven additional counts of aggravated batteiy for the nonfatal stab wounds because we would find an absence of a fresh impulse for tire multiple acts occurring at the same time and the same place. Yet, the majority view would allow him to form a fresh intent during the incident, even where no fresh impulse exists. I find that logic untenable. The crime of premeditated murder should be reserved for killings that are calmly planned or designed prior to the commencement of the murderous act, i.e., murder in cold blood, rather than applied to crimes of passion, regardless of the amount of time that may be consumed by the toiler’s rage.
Nevertheless, I do agree with the majority’s determination that the prosecutor’s narrative, giving a blow-by-blow description of the stabbing incident, was not supported by the actual evidence the State presented at trial. The prosecutor’s story related that the defendant methodically and deliberately stabbed the victim five or six times in various locations on her arms and hands before delivering the fatal stab to the chest, followed by one last stab to the neck. The prosecutor repeatedly emphasized the obvious fact that the stabbing was not accidental; arbitrarily declared that the defendant was not “flailing [the knife] around”; and unjustifiably suggested that there was a pause between stabs which allowed the defendant to “make the decision to do it again.” But the coroner did not establish the order in which the victim’s stab wounds were inflicted or the rapidity or precision with which they were delivered. Thus, while the prosecutor’s dramatization served nicely to *154support the State’s theory of concurrent premeditation, it imper-missibly argued facts not in evidence. Obviously, the State’s suggestion that Marks formed the intent to Idll during the act of killing is not nearly so compelling if the fatal blow to the chest was the first stab he delivered. In that event, the killing would be more closely akin to “instantaneous,” and the time it took to deliver the subsequent, superfluous, nonfatal stabs would only have permitted the formation of retroactive premeditation, which is even more ludicrous than concurrent premeditation.
But the bottom line is that, even if I were to surrender to the theory of concurrent premeditation, I could not excuse the prosecutor’s arguing facts not in evidence in this case. This was not a slip of the tongue or an innocuous memory lapse. The prosecutor created her own scenario, unsupported by the facts, in order to present a better argument in support of the State’s theory of the defendant’s culpability for premeditation. Attempting to convict a person of a crime based on made-up facts is gross and flagrant conduct, if it is anything. Such conduct also has to suggest some level of ill will toward the defendant. I suspect that most, if not all, litigators wish they could manufacture better facts for closing argument, but they understand that justice does not permit that ploy.
Finally, I cannot view the evidence of premeditation in this case as so overwhelming as to render the error harmless. The majority contends that the State presented sufficient evidence of premeditation under two theories: (1) that Marks premeditated the murder before the act of killing, as evidenced by his threatening texts and telephone calls while the victim was in Tennessee; and (2) that “Marks formed premeditation to kill [the victim] between the eight stabs.” The majority then points out that the definition of premeditation contained in the jury instructions—that the design or intent to kill must be formed before the act of killing—squares with the State’s first theory, i.e., “that Marks premeditated [the victim’s] murder while she was away in Tennessee.” The majority then declares that “[t]here was sufficient evidence showing a strong inference that [the victim’s] stabbing was premeditated.” My disagreement with the majority’s assessment of the strength of the *155premeditation evidence is not as important as my disagreement with the evidentiary test that the majority apparently applies.
As I read the majority opinion, it addresses a sufficiency of the evidence question, i.e., whether a rational jury could find the existence of the premeditation element, beyond a reasonable doubt, from the evidence presented at trial and from all reasonable inferences that can be drawn from that evidence. But that is not the question presented here. We are considering the third factor of the second step of the prosecutorial misconduct analysis: “ whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors.’ ” State v. McCaslin, 291 Kan. 697, 715-16, 245 P.3d 1030 (2011) (quoting State v. Bryant, 285 Kan. 970, Syl. ¶ 2, 179 P.3d 1122 [2008]).
The evidence that the majority finds compelling on the first theory-—the threats sent to Tennessee—is neither direct nor overwhelming. The most that can be read into the Tennessee texts is that Marks was thinking about killing his wife when she returned from Tennessee. That did not happen. In fact, after the victim returned from Tennessee, she told her Tennessee friend that Marks was begging her not to divorce him and to give him another chance. There has to be some causal connection between the premeditation and the act of killing. In other words, “the matter” which must be thought over beforehand is the act of murder that actually occurred, not some general homicidal thoughts in the past or some earlier design or plan to fell that was abandoned in favor of reconciliation.
Granted, evidence that Marks had previously verbalized a threat to ldll his wife may support some inference that he once again premeditated murder specifically with respect to the stabbing incident. Moreover, that would be a juiy question. But we can say that the evidence of premeditation of this particular killing is certainly not overwhelming, especially in the face of the testimony of the defendant’s brother, who saw the defendant and victim just minutes before the stabbing. The brother described the couple as appearing “normal” at that time and getting along; the brother did not think the defendant was agitated or angry. The victim waited *156in the car while the defendant picked up some tools at the brother s house, and the victim waived to the brother. The Tennessee friend corroborated that tranquility, opining that the victim sounded “fine” when the friend spoke to her just before the stabbing. The evidence that one moment the defendant and the victim are normal and getting along and the next moment the victim is staggering down the street with eight stab wounds is just as indicative of a sudden quarrel as a premeditated killing.
Further, the majority misdirects our inquiry by focusing on the State’s first theory of premeditation upon which the majority found no prosecutorial misconduct. We should be looking at the impact of the prosecutor’s misconduct which the majority found to be erroneous in this case, i.e., arguing facts not in evidence to prove that the intent was formed during the act. The inquiry is whether that misconduct was likely to have had little weight in the minds of the jurors. That inquiry is simplified in this case by the jury’s questions to the trial court, which make it abundantly clear that premeditation was weighing heavily on the jury’s collective mind. But even without the jury questions, I could not declare harmlessness where the prosecutor told the jury a make-believe story to support a theory of premeditation that directly contradicted the plain language of the jury instruction definition of premeditation. I would reverse and give Marks a fair trial with a jury that is properly led to understand the concept of premeditation.
Moritz, J., joins in the foregoing dissent.