State v. Kleypas

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,724

STATE OF KANSAS,
Appellee,

v.

GARY W. KLEYPAS,
Appellant.

SYLLABUS BY THE COURT

1.
The doctrine of res judicata does not apply to a second appeal within the same
case—that is, to an appeal from proceedings occurring on remand from a prior appeal.

2.
Under the law of the case doctrine, when a second appeal is brought in the same
case, the first decision is the settled law of the case on all questions involved in the first
appeal, and reconsideration will not normally be given to such questions.

3.
The doctrine of the law of the case is not an inexorable command, nor is it a
constitutional requirement. Rather, the law of the case doctrine states a discretionary
policy which expresses the practice of the courts generally to refuse to reopen a matter
already decided, without limiting their power to do so.

1
4.
Courts generally recognize only three exceptions that allow changing the law of
the case. These apply when (1) a subsequent trial produces substantially different
evidence, (2) a controlling authority has made a contrary decision regarding the law
applicable to the issues, or (3) the prior decision was clearly erroneous and would work
an injustice.

5.
If a party can meet a law of the case exception, the party need not also show an
exceptional circumstance.

6.
Under the Fourth Amendment to the United States Constitution, a search warrant
must particularly describe the place to be searched and the persons or things to be seized.
The fact that a warrant application or an affidavit in support of the application adequately
described the place and the persons or things to be seized does not save the warrant from
its facial invalidity.

7.
Where a warrant is so facially deficient that it fails to particularize the place to be
searched or the things to be seized, executing officers cannot reasonably presume it to be
valid, and a court should not admit into evidence the seized items under the good-faith
exception recognized in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed.
2d 677 (1984).

2
8.
To invoke the exception to the law of the case doctrine that allows reconsideration
of a clearly erroneous decision, it must be plain that the prior decision was in error and
results in manifest injustice. To determine if manifest injustice would require reversal of
a criminal conviction, an appellate court must apply K.S.A. 2015 Supp. 60-261 and
K.S.A. 60-2105. Under those statutes, a court must determine whether an error affects
substantial rights, meaning whether it will or did affect the outcome. The degree of
certainty by which the court must be persuaded will vary depending on whether the error
implicates a right guaranteed by the United States Constitution. If it does, a Kansas court
must be persuaded beyond a reasonable doubt that there was no impact on the outcome,
i.e., there is no reasonable possibility that the error contributed to the outcome. If a right
guaranteed by the United States Constitution is not implicated, a Kansas court must be
persuaded that there is no reasonable probability that the error will or did affect the
outcome.

9.
Two convictions—one for capital murder based upon the intentional and
premeditated killing of a victim in the commission of, or subsequent to, the attempted
rape of the same victim, and the other for the attempted rape of the victim—are
improperly multiplicitous and violate a defendant's right to be free from double jeopardy.

10.
K.S.A. 2015 Supp. 21-6619(b) mandates that the Kansas Supreme Court shall
consider any errors asserted in the review and appeal. The statute creates a special
exception to the general rule that an appellate court will not consider an issue raised for
the first time on appeal—i.e., not raised in the district court—in death penalty cases.

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11.
The penalty phase of a capital case is effectively a trial on the issue of punishment;
rules applying to the conduct of a trial apply, except where special rules relating to capital
cases have been adopted. In general, the traditional rubric for considering a motion for
mistrial applies to such a motion made during the penalty phase of a death penalty
proceeding.

12.
Under K.S.A. 22-3423(1)(c), a district court may order a mistrial if there is
prejudicial conduct, in or outside the courtroom, that makes it impossible to proceed with
the trial without injustice to either the defendant or the prosecution. In making this
determination, the district court must engage in a two-step process: First, it must
determine if there is a fundamental failure in the proceeding; if so, second, the district
court must determine whether it is possible to continue the trial without an injustice.

13.
The standard of review and the ultimate question that must be answered with
regard to whether error in the penalty phase of a capital trial was harmless is whether the
court is able to find beyond a reasonable doubt that the error did not affect the weighing
of the aggravating and mitigating circumstances—that is, that there is no reasonable
possibility the error affected the jury's weighing of the aggravating and mitigating
circumstances and the death sentence verdict.

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14.
The judicial system serves the fundamental purpose of resolving disputes in a
civilized and orderly fashion. Aggressive physical conduct in the courtroom undermines
this purpose and potentially denies a defendant a fair trial and may result in a mistrial.

15.
Before granting a mistrial, district courts should consider whether any damage
caused by a fundamental failure in the proceedings can be or was removed or mitigated
by admonition, instruction, or other curative action.

16.
A district court does not abuse its discretion when it denies a mistrial after a
courtroom spectator attacks the defendant if the district court takes immediate action by
removing the jurors from the courtroom, carefully questions the jurors regarding whether
they can continue to be impartial, and instructs them to disregard the incident and not let
it influence their deliberations. Generally, we presume juries follow a court's instructions,
and a defendant must come forward with some evidence to overcome the presumption.

17.
In evaluating whether an injustice occurred as the result of an improper
prosecutorial comment on a defendant's silence or failure to testify, appellate courts
consider whether the language used was manifestly intended or was of such character that
the jury would naturally and necessarily take it to be a comment on the failure of the
defendant to testify.

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18.
A district court does not abuse its discretion in denying a motion for mistrial after
a prosecutor uses the phrase, "If the defendant testified," in a question to a witness when
the phrase is merely an introductory clause rather than the focal point of the prosecutor's
question to the witness, does not give rise to any adverse inference regarding the
defendant's decision not to testify, is uttered only once, is immediately corrected, and the
district court mitigates any potential prejudice by instructing the jury to draw no adverse
inference from the defendant's decision not to testify.

19.
Any error in the admission of evidence that had not been the subject of a proper
notice from the State to a criminal defendant in the penalty phase of a death penalty case
is harmless error when no prejudice results from the lack of notice and the evidence has
no reasonable possibility of affecting the jury's weighing of aggravating and mitigating
circumstances.

20.
A criminal defendant does not have a liberty interest in having a jury instructed in
accord with an overruled interpretation of a provision of law.

21.
Under the so-called mandate rule, a district court considering a case on remand is
generally bound by the law of the case as set out in an appellate decision.

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22.
Where a court departs from a mandate, it commits error. However, if the error
occurs because the district court obeys new law, the error will generally be considered
harmless because it would be futile for the appellate court to reverse the district court and
at the same time direct the district court to render the same judgment again after the
appellate court has itself applied the new law and altered its mandate.

23.
When reviewing an allegation of error relating to jury instructions, an appellate
court must first determine whether there was any error at all. To make that determination,
the appellate court must consider whether the subject instruction was legally and factually
appropriate, employing an unlimited review of the entire record. In general terms, to be
legally appropriate an instruction must always fairly and accurately state the applicable
law. As to factual appropriateness, courts examine whether the instruction is supported by
the particular facts of the case at bar. If error is found, the reviewing court must then
conduct a reversibility inquiry. The nature of the reversibility inquiry depends both on the
type of error and whether an objection had been lodged with the district court. If a party
requested a jury instruction not given by the district court or objected before the district
court to an instruction that was given, an appellate court tests reversibility under the
harmless error paradigm set out in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011),
cert. denied 132 S. Ct. 1594 (2012). If a party failed to request an instruction or to object
to an instruction that was given, the appellate court must assess whether there was clear
error, i.e., whether it is firmly convinced that the jury would have reached a different
verdict had the instruction error not occurred. The party claiming a clearly erroneous
instruction maintains the burden to establish the degree of prejudice necessary for
reversal.

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24.
Under Boyde v. California, 494 U.S. 370, 110 S. Ct. 1190, 108 L. Ed. 2d 316
(1990), when a claim is made in the penalty phase of a death penalty case that jury
instructions impermissibly restrict a jury's consideration of evidence relevant to
mitigating factors and, therefore, violate the Eighth Amendment to the United States
Constitution, the proper inquiry for legal appropriateness is whether there is a reasonable
likelihood that the jury has applied the challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence. This test is not a harmless error test.
Rather it is the test for determining, in the first instance, whether an instructional error
occurred.

25.
A district court did not commit error by failing to list mercy as a mitigator relied
on by a capital defendant when the defendant failed to establish a reasonable likelihood
that the jury was misled to believe the defendant was not asking it to consider mercy.

26.
A district court does not err in instructing a jury in a death penalty proceeding that
the determination of what are mitigating circumstances is for the jurors to decide under
the facts and circumstances of the case.

27.
A prosecutor in a death penalty proceeding does not commit error by arguing to
the jury that a defendant does not deserve mercy as long as the prosecutor does not tell
the jury it cannot consider mercy.

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28.
A prosecutor's questions must be relevant and supported by a good-faith basis for
believing the asserted matter to be true.

29.
A defendant may collaterally attack prior convictions used for sentence
enhancement only when there had been a violation of the right to have counsel
appointed—that is, a violation of rights recognized in Gideon v. Wainwright, 372 U.S.
335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963).

30.
The Eighth Amendment to the United States Constitution does not categorically
prohibit the execution of offenders who are severely mentally ill at the time of their
crimes.

31.
In Kansas, challenges asserting that a punishment is categorically disproportionate
have been limited to term-of-years sentences.

32.
The use and extent of rebuttal and surrebuttal rests in the sound discretion of the
district court, and its ruling will not be reversed unless the discretion has been abused to a
party's prejudice.

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33.
Rebuttal evidence is that which contradicts evidence introduced by an opposing
party. It may tend to corroborate evidence of a party who first presented evidence on the
particular issue, or it may refute or deny some affirmative fact which an opposing party
has attempted to prove. It may be used to explain, repel, counteract, or disprove
testimony or facts introduced by or on behalf of the adverse party. Such evidence
includes not only testimony which contradicts witnesses on the opposite side, but also
corroborates previous testimony.

34.
The heinous, atrocious, or cruel aggravating factor that may be considered in death
penalty proceedings under K.S.A. 2015 Supp. 21-6624 does not violate the Eighth and
Fourteenth Amendments to the United States Constitution by being unduly vague or
broad.

35.
Cumulative trial errors, when considered collectively, may require reversal of the
defendant's conviction when the totality of circumstances substantially prejudiced the
defendant and denied the defendant a fair trial.

36.
While K.S.A. 2015 Supp. 21-6619(b) compels the Kansas Supreme Court's review
of all issues briefed on appeal, it does not require that the court treat the record other than
as it is presented. The party alleging error bears the burden of demonstrating error.

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37.
The standard for determining whether cumulative error infected the penalty phase
of a death penalty proceeding is whether an appellate court is able to find that the total
cumulative effect of the errors, viewed in the light of the record as a whole, had no
reasonable possibility of changing the jury's ultimate conclusion regarding the weight of
the aggravating and mitigating circumstances. The overwhelming nature of the evidence
is a factor to be considered, but its impact is limited. The question before the court is not
what effect the error might generally be expected to have upon a reasonable jury but,
rather, what effect it had upon the actual sentencing determination in the case on review.

Appeal from Crawford District Court; DONALD R. NOLAND, judge. Opinion filed October 21,
2016. Affirmed in part, reversed in part, vacated in part, and remanded with directions.

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

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

The opinion of the court was delivered by

LUCKERT, J.: In previous proceedings, a jury convicted Gary W. Kleypas of
capital murder, aggravated burglary, and attempted rape and determined that Kleypas
should be sentenced to death. Subsequently, the district court imposed the death sentence
for the capital murder conviction, as well as time in prison for the other convictions.
Kleypas appealed from his convictions and sentences, and in State v. Kleypas, 272 Kan.
894, 40 P.3d 139 (2001) (Kleypas I), cert. denied 537 U.S. 834 (2002), abrogated in part
by Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006), this court

11
affirmed his convictions but found reversible error relating to his capital sentence and
ordered a new sentencing proceeding. On remand, a second jury determined that Kleypas
should be sentenced to the death penalty. The district court subsequently imposed that
sentence for the capital murder conviction and prison sentences for the aggravated
burglary and attempted rape convictions.

Now, on appeal from the remand proceedings, Kleypas raises six issues regarding
his guilt and argues we must reverse his capital murder and attempted rape convictions.
We decline to address four of his arguments because this court's decision in Kleypas I
stands as the law of the case on those issues. However, we consider the two other
guilt-phase issues because they fall under exceptions to the law of the case doctrine;
under these exceptions, a court may alter a prior decision made in the same case if a party
establishes that the prior decision was clearly erroneous or that new controlling authority
applies.

In one of these two issues, Kleypas argues a post-Kleypas I decision by the United
States Supreme Court requires us to reexamine our holding that the district court did not
err in denying Kleypas' motion to suppress certain evidence. Kleypas succeeds in
establishing error—the evidence should have been suppressed. Nevertheless, we hold the
error was harmless and does not require us to reverse Kleypas' convictions.

As to the other guilt-phase issue, we hold that post-Kleypas I decisions of this
court require us to reverse Kleypas' conviction for attempted rape because it is
multiplicitous with his capital murder conviction; this also means his sentence for
attempted rape must be vacated. Because the attempted rape sentence was the controlling
sentence under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq.

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(Furse), Kleypas must be resentenced on the remaining conviction governed by Kansas'
sentencing guidelines—his conviction for aggravated burglary.

In addition to his guilt-phase arguments, Kleypas raises 14 issues relating to the
capital-offense sentencing proceedings that occurred after we remanded this case
following our Kleypas I decision. We hold that none of these 14 issues requires us to
reverse that sentence. We have reordered some of those issues for analysis. Specifically,
we hold:

 The district court did not abuse its discretion when it denied Kleypas' motion
for mistrial, in which Kleypas claims the jury could not be fair and impartial
after it saw a courtroom spectator attack him (Issue 7);

 The district court did not abuse its discretion when it denied Kleypas' motion
for mistrial that was based on a prosecutor beginning a question with the
phrase, "If the defendant testified" (Issue 8);

 Any error in the admission of a Kansas Bureau of Investigation (KBI) agent's
testimony concerning test results obtained by other agents was harmless (Issue
9);

 The district court's failure to follow the mandate of Kleypas I amounted to
harmless error (Issue 10);

 The district court did not commit error when it decided not to list "mercy" as
one of the mitigators asserted by Kleypas (Issue 11);

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 The district court did not commit error by instructing the jury it could
determine what constituted a mitigating circumstance under the facts of the
case (Issue 12);

 Neither the prosecutor's closing argument regarding mercy nor his
cross-examination of a defense expert resulted in reversible error (Issue 13);

 The district court did not err in refusing to consider Kleypas' collateral attack
on his 1977 Missouri conviction (Issue 14);

 The Eighth Amendment to the United States Constitution does not
categorically prohibit execution of offenders who were severely mentally ill at
the time of their crime (Issue 15);

 Kleypas fails to establish the basis for proportionality review under § 9 of the
Kansas Constitution Bill of Rights (Issue 16);

 The district court did not err in admitting rebuttal testimony of the State's
expert (Issue 17);

 The heinous, atrocious, and cruel aggravating factor that may be considered in
death penalty proceedings under K.S.A. 2015 Supp. 21-6624 is not vague or
overbroad (Issue 18);

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  Kleypas has not established that the district court erred in empaneling a new
jury on remand (Issue 19); and

 Cumulative error does not require reversal of Kleypas' capital murder
conviction or death sentence (Issue 20).

We therefore affirm Kleypas' capital murder conviction and his death sentence, but
we reverse his attempted rape conviction as multiplicitous, vacate his sentence for
attempted rape, and remand for resentencing on the other sentencing guideline conviction
of aggravated burglary.

FACTUAL AND PROCEDURAL BACKGROUND

In Kleypas I, 272 Kan. at 909-14, this court extensively discussed the criminal
acts that led to Kleypas' convictions for the capital murder of C.W., the aggravated
burglary of her apartment, and the attempt to rape her. Highly summarized, in March
1996, C.W.'s body was discovered in her apartment where she had died after suffering
seven stab wounds to her heart, a lacerated liver, a dilated anus, bruising all over her
body, a fractured jaw, and multiple other injuries—some of which indicated sex crimes
had occurred.

Suspicion for C.W.'s murder immediately fell on Kleypas, who lived near C.W.'s
apartment, because C.W.'s caller ID had logged Kleypas' phone number at 1:48 on the
morning of the murder. Once apprehended by law enforcement officers, Kleypas
confessed to burglarizing C.W.'s apartment and then raping and murdering her. He told
officers he had forced his way into C.W.'s apartment and had digitally penetrated her

15
vagina. Kleypas admitted he had strangled C.W. before stabbing her repeatedly in the
chest. Kleypas also admitted he had burglarized C.W.'s apartment and had made obscene
phone calls to her in the days before the murder.

After trial, the jury convicted Kleypas of capital murder under K.S.A.
21-3439(a)(4), attempted rape, and aggravated burglary. See K.S.A. 21-3439(a)(4)
(defining capital murder as the "intentional and premeditated killing of the victim of one
of the following crimes in the commission of, or subsequent to, such crime: Rape, as
defined in K.S.A. 21-3502 and amendments thereto, . . . or any attempt thereof, as
defined in K.S.A. 21-3301 and amendments thereto"). Kleypas appealed. This court
affirmed Kleypas' convictions. But it held that an error in the jury instructions regarding
sentencing required it to vacate Kleypas' death penalty sentence. 272 Kan. at 908.
Kleypas sought a petition for certiorari, which the United States Supreme Court denied.
Kleypas v. Kansas, 537 U.S. 834 (2002). This court then issued a mandate vacating
Kleypas' death sentence and remanding the case to the district court with instructions to
conduct a new sentencing proceeding.

During the remand proceedings, the State again sought the death penalty. The
district court instructed the jury it could reach one of two verdicts: (a) It could impose a
sentence of death by unanimously finding beyond a reasonable doubt that there were one
or more aggravating circumstances and those aggravating circumstances were not
outweighed by any mitigating circumstances found to exist; or (b) it could state that it
was unable to reach a unanimous verdict sentencing the defendant to death. The State
asked the jurors, as part of their weighing process, to consider three aggravating
circumstances: (1) Kleypas had been previously convicted of a felony in which he had
inflicted great bodily harm, disfigurement, or death on another; (2) Kleypas had murdered

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C.W. in order to avoid or prevent a lawful arrest or prosecution; and (3) Kleypas had
murdered C.W. in an especially heinous, atrocious, or cruel manner.

To support the first aggravator, the State presented evidence regarding Kleypas'
conviction for the 1977 murder of a Missouri woman. Kleypas had served time in a
Missouri prison as a result of that conviction but had been paroled; he was still on parole
at the time of C.W.'s death.

In support of the second and third aggravating circumstances, the State played
Kleypas' videotaped interview with law enforcement in which he detailed the murder of
C.W. and the events surrounding it. We summarized the interview in our prior decision,
stating:

"Kleypas said he first attempted to enter [C.W.'s] apartment through the front window.
He had taken the screen off and the window broke. He took the screen to a trash can in
the alley and then went to the front door. When Kleypas rang the bell the first time, C.W.
peered out and called out for Mike, her fiancé. She said she knew it was Mike and said he
should stop horsing around. She went back inside and Kleypas rang the bell again. When
she answered, he forced himself inside. He said he might have slapped C.W. and that
they ran into the couch in the living room. He forced her into the bedroom and made her
undress. Kleypas used socks to bind C.W. He attempted intercourse but was unable to
obtain an erection. He said he penetrated her vaginally with his fingers. He also admitted
that he had been watching C.W. and her roommate and had been making obscene
telephone calls to them.

"After he put his fingers into her vagina, Kleypas allowed C.W. to dress. She
asked him to leave and said she would give him a head start. At some point, C.W. said
she recognized him as the man who lived in the green house down the street. After he

17
 unplugged the telephone from the wall, there was a struggle because C.W. did not want
her hands bound.

"When C.W. became free of the chair, Kleypas tried to strangle her with his
hands but that did not work. He took a piece of clothing and stuffed it into her mouth.
When that was not successful, Kleypas found the knife and stabbed her repeatedly in the
chest. He then took the engagement ring from her finger and some of the contents from
her purse and left the apartment. Kleypas said he later disposed of some of the clothing
he wore that night and other items by dropping them into a dumpster at a Springfield car
wash, but he was uncertain what happened to the ring and it was never found.

"Kleypas told the officers that after the murder he returned to his apartment, took
a shower, and waited for stores to open before writing checks and leaving town. Kleypas
also admitted taking [C.W.'s roommate's] camera. He said that he wanted to plead guilty
and spend the rest of his life in prison." Kleypas, 272 Kan. at 913-14.

The capital sentencing jury also heard testimony regarding the discovery of C.W.'s
body, a 911 call, a search of Kleypas' apartment, and other investigatory details. In
addition, the coroner detailed the wounds and injuries that led to C.W.'s "far
from . . . instant death." The autopsy showed a widely dilated anus, which suggested
C.W. had been sodomized by some object, a lacerated liver, seven stab wounds to the
heart that nearly penetrated C.W.'s body, a broken jaw, significant bruising all over her
body, and a wound over her right eye caused by a sharp object.

In defense, Kleypas presented evidence of four mitigating circumstances:
(1) Kleypas had a chronic mental illness and chronic maladjustment that had led to
behavioral control problems throughout his life; (2) Kleypas' mental status at the time of
the crime was severely deteriorated; (3) when medicated, Kleypas' mental status
dramatically improved; and (4) Kleypas' family had suffered a great deal and putting him

18
to death would cause them additional suffering. To support these mitigating
circumstances, Kleypas called several witnesses, including a mitigation specialist who
was a clinical and forensic psychologist; a clinical child psychologist; a psychologist who
had researched factors that cause a risk of violence; a physician who had performed two
brain scans on Kleypas; Kleypas' mother; and two individuals who had supervised
Kleypas when he had been incarcerated in a Missouri prison.

As to the first circumstance regarding Kleypas' chronic mental illness, two
psychologists testified to Kleypas' abusive and difficult childhood. Yolanda Jackson, a
clinical child psychologist, characterized Kleypas' childhood as lacking quality
attachment and explained her opinion that Kleypas' parents had been more focused on
their own needs than those of their children. In addition, Jackson testified that Kleypas
lacked supervision and monitoring as a child and was not allowed to express his
emotions, leading to internalized shame and embarrassment. Dr. Marilyn Hutchinson, the
mitigation specialist and clinical and forensic psychologist, reported that Kleypas'
alcohol- and prescription drug-dependent father was prone to rage and to inflict abuse.
When Kleypas was 15 or 16 years of age, his father stopped talking to him, even when
they were in the same room. This continued for several years. Both psychologists felt this
environment led to Kleypas' alcohol and drug abuse.

Hutchinson, who had evaluated Kleypas in 2002 and 2004, described him as
severely disturbed with a history of chronic mental illness and maladjustment that caused
behavioral control problems, an adult child of an alcoholic, a survivor of abuse and
trauma, and a type-two alcoholic. She described a number of diagnoses by various
doctors and psychologists starting in 1977. Cumulatively, these records showed a history
of dissociation, psychotic and paranoid thoughts, schizophrenic activity, alcohol and drug

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abuse, sexual perversion, and a significant personality disorder. Hutchinson diagnosed a
number of significant mental illnesses affecting Kleypas, including psychosis, alcohol
and drug abuse, sexual perversion, and a personality disorder. She indicated some of
these illnesses were currently in remission or under control. She explained that she based
her opinions on several factors, which included Kleypas' genetic predisposition for
mental illness, long-term drug abuse, extremely low serotonin and dopamine levels,
history of improvement when treated with drugs for schizophrenia, past mental illness
diagnoses, and her own testing.

Hutchinson also addressed the second mitigator. She characterized Kleypas'
mental state at the time of the crime as being negatively affected by major depression
with psychosis and agitation; paraphilia including very disturbed sexual ideas; a
personality disorder not otherwise specified; traits of narcissism, avoidance, and
dependency; a schizotypal personality; and antisocial behavior.

As background for this mitigator, Hutchinson described Kleypas' life after his
release from a Missouri prison in 1992. Although he did well at first, by the time of
C.W.'s murder on March 30, 1996, he had a failed relationship and his drug use and
voyeuristic activity had increased. Hutchinson testified that several stressors influenced
Kleypas, which included being in a deteriorating personal relationship, being on the verge
of getting kicked out of school, being fired from multiple jobs, having economic
problems, and being at risk of losing his housing because one of his roommates had
complained that Kleypas screamed and yelled for no reason. Hutchinson also indicated
that Kleypas needed to be on prescription medication at the time of the murder but was
not.

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 Hutchinson cited evidence indicating Kleypas had become delusional around the
end of March 1996. She testified that a number of people who saw him around this time,
including his attorney, reported he was disturbed. Shortly after the crime, he was having
hallucinations in his jail cell; she suspected these might have been attributable to drugs
but noted the hallucinations persisted for days. She testified "there was something very
disturbed in his processing at that time."

In addition, Hutchinson explained the global assessment of functioning, or GAF,
scores she had assigned to Kleypas. She described the GAF as a DSM-IV diagnostic axis
that scores the level of a person's functioning on a scale ranging from 1 to 100. She
assigned Kleypas a GAF score of 25 during the weeks before C.W.'s murder. She
explained this meant Kleypas' communication and judgment were seriously impaired.
Hutchinson lowered Kleypas' GAF score to 1 on the night of the murder because of the
persistent risk of danger he posed to himself or others. She testified that Kleypas had an
"enormous list" of deficits against him and very few positives to help him.

The third mitigating circumstance—that Kleypas' mental state vastly improved
and stabilized when he was properly medicated and in a controlled environment such as
prison—was supported by Hutchinson's summary of Kleypas' health records, which
spanned the periods before, during, and after his incarceration in Missouri. In addition,
Dr. David Preston, a physician in nuclear medicine who had performed two brain scans
on Kleypas, testified to a marked improvement between a scan he performed in 1997 and
a scan performed in 2008. His opinion was that cocaine and amphetamines were probably
responsible for the earlier results and that, once Kleypas had been "locked up," his brain
had a chance to recover. Also, clinical and forensic psychologist Mark Cunningham
testified that Kleypas would not be a risk for violence in prison. Finally, two witnesses

21
who had supervised Kleypas' job performance while on prison work duty in Missouri
verified he functioned responsibly in that setting.

Hutchinson's testimony also supported the fourth mitigator, as she believed it
would be very hard on Kleypas' family if he were put to death. In addition, Kleypas'
mother testified she did not think she could survive Kleypas being executed. Expressing
sympathy for C.W. and her family, Kleypas' mother asked that her son be locked up for
the rest of his life. She also expressed her anger with the Missouri prison system and
Kleypas' parole officer because of their failure to treat or help with Kleypas' drug and
alcohol problems.

In rebuttal to the evidence presented by the defense, the State presented the
testimony of Dr. William Logan, a forensic psychiatrist who had worked with prisoners
and had been involved in Kleypas' case since 1996. Logan told the jury that he had
reviewed trial testimony from Kleypas' Missouri trial and the Kleypas I trial, all prior
psychiatric evaluations of Kleypas, and Missouri Department of Corrections records.
Logan also interviewed Kleypas' former girlfriend and viewed the videotape of Kleypas'
confession, but he had not interviewed Kleypas.

When asked his opinion about Kleypas' mental state when he murdered C.W.,
Logan testified that Kleypas had been in control of his behavior, although he
acknowledged Kleypas' deteriorating mental state during the period between his release
from the Missouri prison and C.W.'s murder. Logan explained that Kleypas had done
well when first paroled. But by 1996, Kleypas had relapsed, leading to substance abuse.
Logan testified that by mid-March 1996, there were failures in multiple areas of Kleypas'
life.

22
 Logan thought an additional trigger occurred the evening of C.W.'s murder when a
former girlfriend called Kleypas and asked for his help in getting her out of an abusive
relationship. Kleypas made a play to get her back, but she turned him down. Under the
influence of alcohol, Kleypas then acted out his sexual obsession on C.W. while she was
helpless and, although widely different in age, similar in her helplessness to the victim of
Kleypas' 1977 Missouri murder.

Logan testified Kleypas did not randomly choose his victim when he murdered the
Missouri woman or C.W.; rather, he targeted both. Logan described C.W. as someone
Kleypas had "shown an interest" in over time, as demonstrated by his acts of burglarizing
her apartment and harassing her with phone calls of a sexual nature. The prosecutor asked
Logan how Kleypas' prior interest in C.W. impacted Logan's opinion about Kleypas'
mental state at the time of the murder. Logan responded that Kleypas had not experienced
any hallucinations or voices telling him to kill C.W. that night. Rather, "like most sex
offenders," he had a sexual attraction to her.

Logan disagreed with Hutchinson's assessment that Kleypas had a GAF score of 1
on the day of the crime. According to Logan, if Kleypas' GAF had been that low, he
would have been delusional and disoriented—the kind of person police bring into the
emergency room ranting and raving. In contrast, Logan testified that Kleypas committed
the crimes in a very organized manner and took several cautionary steps in an attempt to
prevent apprehension. These actions, rather than demonstrating delusional or impulsive
behavior, showed that Kleypas acted purposefully. Logan conceded, however, that
Kleypas demonstrated a lack of control by acting on his sexual obsession.

23
 After hearing this and other evidence, the jury unanimously sentenced Kleypas to
death. On the verdict form, the jury indicated it "unanimously [found] beyond a
reasonable doubt that the following aggravating circumstance(s) have been established by
the evidence and are not outweighed by any mitigating circumstances found to exist":
(1) The defendant was previously convicted of a felony in which the defendant inflicted
great bodily harm, disfigurement, dismemberment, or death on another; (2) the defendant
committed the crime in order to avoid or prevent a lawful arrest or prosecution; and
(3) the defendant committed the crime in an especially heinous, atrocious, or cruel
manner.

The district court subsequently imposed a death sentence for the capital murder
conviction. The district court also sentenced Kleypas to 69 months' imprisonment on the
attempted rape, the primary crime of conviction for his two sentencing guidelines
convictions, and 34 months' imprisonment on the aggravated burglary. The district court
ordered the aggravated burglary sentence to run consecutive to the attempted rape
sentence, and both guidelines sentences were imposed to run consecutive to the capital
murder sentence.

We will set out additional factual and procedural background as necessary to the
analysis of Kleypas' various complaints of error.

ANALYSIS OF GUILT-PHASE ISSUES

As previously noted, Kleypas raises six issues relating to the guilt phase of the
Kleypas I trial, even though the remand proceedings dealt solely with the penalty—rather
than the guilt—phase of the proceedings. In response to Kleypas' arguments, the State

24
asserts our review is precluded by either the doctrine of res judicata or the doctrine of the
law of the case. We begin our discussion with an analysis of these doctrines and a
determination of their potential impact on Kleypas' guilt-phase claims.

A. The Doctrine of Res Judicata Does Not Preclude Kleypas' Arguments.

"The doctrine of res judicata provides that 'where an appeal is taken from the
sentence imposed and/or a conviction, the judgment of the reviewing court is res judicata
as to all issues actually raised, and those issues that could have been presented, but were
not presented, are deemed waived.'" State v. Kingsley, 299 Kan. 896, 901, 326 P.3d 1083
(2014) (quoting State v. Neer, 247 Kan. 137, 140-41, 795 P.2d 362 [1990]). In order for
res judicata to apply, four elements must be met: (1) a second action must raise the same
claim; (2) the second action must involve the same parties; (3) the second action must
involve claims that were or could have been raised; and (4) the first action must have
resulted in a final judgment on the merits. Kingsley, 299 Kan. at 901.

The parties focus their arguments on the fourth element, which requires there to
have been a prior final judgment on the merits. In doing so, they extensively discuss the
meaning of "final judgment." The State, pointing to the procedural history of this case,
asserts Kleypas' convictions became final once the United States Supreme Court denied
his certiorari petition. In response, Kleypas argues judgment cannot be final until all
direct appeals have been exhausted.

Both the State and Kleypas cite cases interpreting the meaning of "final judgment"
as applied in three general categories: (1) The United States Supreme Court's jurisdiction
over final judgments in cases appealed from state courts, (2) a criminal defendant's ability

25
to collaterally attack a conviction or sentence after final judgment has been entered, and
(3) the retroactive effect of a change in the law announced in one case on other cases not
yet final. The context of these cases presents the question in a framework different from
the one we face and thus these cases are distinguishable. We will discuss each category in
turn.

As to the first category regarding the United States Supreme Court's jurisdiction,
that Court has explained its jurisdictional authority does not depend on the absolute
finality of all aspects of a state court's judgment. Instead, the Court can exercise
jurisdiction if (1) "the federal issue would not be mooted or otherwise affected by the
proceedings yet to be had because those proceedings have little substance, their outcome
is certain, or they are wholly unrelated to the federal question" or (2) "the federal issue
would be mooted if the petitioner or appellant seeking to bring the action here prevailed
on the merits in the later state-court proceedings, but there is nevertheless sufficient
justification for immediate review of the federal question finally determined in the state
courts." (Emphases added.) Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 478-79, 95
S. Ct. 1029, 43 L. Ed. 2d 328 (1975). Here, however, application of the doctrine of res
judicata does not depend on the finality of a federal issue but on the finality of the
judgment under Kansas law. Consequently, we find no guidance in this line of cases.

The two other categories of cases deal with collateral attacks on a judgment or the
effect of a judgment on an entirely different case. Here, we are dealing with a direct
appeal, not a collateral attack, and the same, not a separate, proceeding. To apply such
holdings in this case would require us to ignore a fundamental principle of Kansas law
regarding the doctrine of res judicata: The res judicata doctrine only applies when "a

26
second cause of action is filed in order to attempt to relitigate issues between the same
parties." (Emphasis added.) State v. Collier, 263 Kan. 629, 633, 952 P.2d 1326 (1998).

When considering the distinction between collateral attacks and second appeals in
the same case, we must keep in mind that Kansas law defines a criminal judgment as
consisting of a conviction and a sentence. See State v. Hall, 298 Kan. 978, 985-86, 319
P.3d 506 (2014) ("'[J]udgment in a criminal case becomes effective, and the time period
for appeal starts running, when the defendant's sentence is pronounced from the bench,'"
and "no appeal may be taken until judgment is final."); see also K.S.A. 2015 Supp. 22-
3601(a) ("Any appeal permitted to be taken from a district court's final judgment in a
criminal case shall be taken to the court of appeals, except in those cases reviewable by
law in the district court or in which a direct appeal to the supreme court is required.");
K.S.A. 2015 Supp. 21-6619(a) ("[a] judgment of conviction resulting in a sentence of
death" is subject to automatic appeal to supreme court).

In order to meet the res judicata doctrine's finality requirement, the State suggests
a different rule should apply in capital cases—a rule where the conviction is severed from
the sentence for purposes of judgment and res judicata finality. The State cites two cases,
both of which apply California law, in support of this suggestion. See Phillips v. Vasquez,
56 F.3d 1030, 1033 (9th Cir. 1995) (after California Supreme Court affirmed convictions
but vacated death penalty sentence, federal court accepted jurisdiction over a habeas
corpus action relating to a conviction even though state sentencing proceedings had not
been completed because under California caselaw the "guilt phase of this case is final");
People v. Kemp, 10 Cal. 3d 611, 614, 111 Cal. Rptr. 562, 517 P.2d 826 (1974) (holding
that in death penalty cases, the "issue of guilt remains final during the retrial of the

27
penalty issue and during all appellate proceedings reviewing the trial court's decision on
that issue").

We note that neither of these cases discusses the doctrine of res judicata. Rather,
the court announced the rule without explaining its doctrinal basis. The court-made
preclusive rule established in these cases and the seminal case of People v. Deere, 53
Cal. 3d 705, 713, 280 Cal. Rptr. 424, 808 P.2d 1181 (1991), does not fit with Kansas law
for several reasons.

First, to sever a Kansas conviction from the sentence for purposes of res judicata
finality could result in confusion, piecemeal litigation, potentially incongruent outcomes,
and judicial inefficiency. In part, this results from the time limitation for filing a K.S.A.
60-1507 proceeding. Arguably, under those provisions, if we were to treat a conviction
as final even though the sentence has not yet been determined by a remand sentencing
jury, a defendant seeking to collaterally attack a conviction would have to file the
separate proceeding or risk being time barred even though sentencing had not been
finalized. See K.S.A. 60-1507(f) ("[1] Any action under this section must be brought
within one year of: [i] The final order of the last appellate court in this state to exercise
jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or [ii] the
denial of a petition for writ of certiorari to the United States supreme court or issuance
of such court's final order following granting such petition.").

Thus, under the State's proposed rule, the parties could end up litigating the
sentencing proceeding while disputing, in a separate proceeding, the validity of the
conviction for which sentence would be imposed. The possibility of this fragmented and
potentially incongruous litigation—or at least the uncertainty of whether a defendant

28
would have to initiate this fragmented litigation in order to comply with K.S.A.
60-1507(f)'s time requirements—counsels against pronouncing one part of a capital
judgment (the conviction) as final when another part of the judgment (the sentencing)
remains in litigation.

Second, the provisions of K.S.A. 2015 Supp. 21-6619(a) require this court to
consider "[a] judgment of conviction resulting in a sentence of death" and 21-6619(b)
requires review of "the question of sentence as well as any errors asserted in the review
and appeal." This language suggests that in a death penalty case we should not sever the
two components of the judgment. As we clarified in State v. Cheever, 304 Kan. 866, 903,
375 P.3d 979 (2016) (Cheever II), "certain guilt-phase errors . . . could be of such a
nature that they impact the sentencing determination when the same jury decides both
guilt and sentence" and, therefore, must be examined as part of the sentencing-phase
analysis. While, as here, two separate juries might be involved, that may not always be
the circumstance. Therefore, a steadfast rule of finality would be contrary to Kansas law,
especially in light of the language of K.S.A. 2015 Supp. 21-6619.

Consequently, we hold that the doctrine of res judicata does not apply in this
second appeal within the same case.

B. The Law of the Case Doctrine Does Not Necessarily Foreclose All of Kleypas' Issues.

Nevertheless, the law of the case doctrine may preclude review of the issues raised
by Kleypas. Under the law of the case doctrine, "[w]hen a second appeal is brought to
this court in the same case, the first decision is the settled law of the case on all questions
involved in the first appeal, and reconsideration will not normally be given to such

29
questions." Collier, 263 Kan. 629, Syl. ¶ 3. The doctrine shares many of the attributes of
res judicata: It has preclusive effect; promotes finality of judgments, consistency, and
efficiency of the judicial process; avoids relitigation of issues; and assures obedience of
lower courts to the decisions of appellate courts. See Venters v. Sellers, 293 Kan. 87, 99,
261 P.3d 538 (2011); Collier, 263 Kan. at 631, 633-34.

Significant differences exist between the two doctrines, however. First, the law of
the case doctrine applies to a second appeal in the same case and the res judicata doctrine
applies when a party collaterally attacks a judgment or brings a second action arising
from the same facts or circumstances against one (or more) of the original parties.
Collier, 263 Kan. at 633. Second, where res judicata "'settles the rights of the parties once
judgment is final,'" the law of the case "'settles the law to be applied in determining the
rights of the parties.'" 263 Kan. at 634.

Nevertheless, "'[t]he doctrine of the law of the case is not an inexorable
command,'" nor is it a constitutional requirement. Collier, 263 Kan. at 631. Rather, the
law of the case doctrine states "'a discretionary policy which expresses the practice of the
courts generally to refuse to reopen a matter already decided, without limiting their power
to do so.'" 263 Kan. at 631.

In an early Kansas case recognizing the law of the case doctrine, this court
observed the need for the discretionary power to reconsider a prior ruling, stating: "If an
erroneous decision has been made, it ought to be corrected speedily, especially when it
can be done before the litigation in which the error has been committed has terminated
finally." Railway Co. v. Merrill, 65 Kan. 436, 451, 70 P. 358 (1902); see Hudson v. Riley,
114 Kan. 332, 335, 219 P. 499 (1923) ("If there was error in the ruling it is competent for

30
the court to correct it, and especially where it can be done before the litigation in which it
occurred has been finally terminated."); Henry v. Railway Co., 83 Kan. 104, 108-09, 109
P. 1005 (1910) (errors should be corrected before final judgment).

Nevertheless, with a nod toward the benefits of finality, courts have limited their
discretion and generally recognize only three exceptions that allow changing the law of
the case. These exceptions apply when (1) a subsequent trial produces substantially
different evidence, (2) a controlling authority has made a contrary decision regarding the
law applicable to the issues, or (3) the prior decision was clearly erroneous and would
work a manifest injustice. 18B Wright, Miller, & Cooper, Federal Practice and
Procedure: Jurisdiction 2d § 4478, pp. 670-72 (2002); see Collier, 263 Kan. at 633
(citing federal case for explanation of doctrine as applied in Kansas).

In support of his first issue, which challenges an evidentiary ruling during his
guilt-phase trial, Kleypas relies on the third exception—that is, "the law of the case rule is
not inflexibly applied to require a court to blindly reiterate a ruling that is clearly
erroneous." Collier, 263 Kan. at 632. In support of his second issue, Kleypas argues
under the second exception that a change in law requires this court to vacate his
attempted rape conviction. Kleypas does not identify any law of the case exception for
issues 3 through 6. We discuss the exceptions Kleypas relies on more fully below.

ISSUE 1: THE ADMISSION OF EVIDENCE SEIZED FROM KLEYPAS' APARTMENT DOES NOT
REQUIRE REVERSAL OF HIS CONVICTIONS.

In Kleypas' first issue, he argues much of the evidence seized during a search of
his apartment should have been suppressed during his guilt-phase trial for reasons
discussed in the United States Supreme Court's decision in Groh v. Ramirez, 540 U.S.

31
551, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004), which was decided approximately
2 years after this case had been remanded to the district court for the new sentencing
proceeding. This issue arises because the search warrant authorizing the search of
Kleypas' apartment failed to meet the constitutional requirement of "particularly
describing . . . the persons or things to be seized." U.S. Const. amend. IV; see Kan. Const.
Bill of Rights, § 15; see also Groh, 540 U.S. at 560 (explaining that the constitutional
requirement that warrants describe the things to be seized assures that a magistrate has
found probable cause to search for and seize the listed items). In fact, someone left
completely blank that portion of the warrant where space had been left to describe the
items.

Kleypas raised this issue during the district court proceedings and again on appeal.
In Kleypas I, this court found the detail in the affidavit that supported the warrant
application cured the warrant defect and that the district court had not erred in denying
Kleypas' request to suppress the evidence. 272 Kan. at 930. Kleypas now argues that
Groh brings that ruling into question.

In our analysis of this issue, we must consider (1) some additional facts, (2) the
State's arguments regarding why this issue should not be reconsidered, (3) Groh's impact
on the prior rulings in this case, and (4) if it was error to admit the evidence, whether
reversible error occurred.

1.1. Additional Facts

In the Kleypas I trial proceedings, the district court had agreed with Kleypas that
the warrant and subsequent search were invalid because the warrant failed to list the

32
items to be seized. Nevertheless, the district court decided the State could admit into
evidence any of the seized items that had been listed in the affidavit that had
accompanied the warrant application. In making these rulings, the district court relied
heavily on the testimony of the KBI agents who had led the team executing the warrant.
In the district court's assessment, this testimony established that the search team had
exercised good faith.

One of these agents indicated he had noticed the warrant failed to include a list of
items. Consequently, before executing the warrant, the agent had called the local law
enforcement officer who had applied for the warrant and asked the officer to bring the
affidavit that had been presented to the magistrate as support for the warrant. Once the
KBI agent had the affidavit, he saw that it had specifically identified the items to be
seized. Although the warrant had not contained any language incorporating the affidavit,
the KBI agent, after conferring with another agent, had decided the warrant and affidavit,
taken together, authorized a valid search of the apartment. At the suppression hearing, the
other agent had testified that both of them had been "aware that there is some case law
that establishes that if you read the warrant and the affidavit, that taken in the totality of
the circumstances, that would be sufficient." The lead KBI agent had briefed the other
agents and officers on the search team regarding the items listed in the affidavit.

The district court had disagreed with the legal conclusions of the KBI agents
regarding the ability of the affidavit to cure the warrant's deficiency. The district court
had explained: "If the warrant fails to state with particularity the things to be seized,
reference to the affidavit is appropriate only when the warrant contains specific
incorporation by reference language." And the warrant in this case had not included
language that incorporated the affidavit. Nevertheless, the district court had continued its

33
analysis to determine the potential application of the exception to the exclusionary rule
recognized in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677
(1984).

In Leon, the United States Supreme Court held that evidence obtained in violation
of the Fourth Amendment need not be excluded from the prosecution's case if it was
obtained by officers acting in objectively reasonable reliance on a search warrant issued
by a detached and neutral magistrate but ultimately found to be invalid. 468 U.S. at 922.
The Supreme Court recognized some limitations on the exception because "in some
circumstances the officer will have no reasonable grounds for believing that the warrant
was properly issued," including circumstances where the warrant so lacks specificity that
officers could not determine the place to be searched or the items to be seized. 468 U.S.
at 922-23; see State v. Hoeck, 284 Kan. 441, 448-53, 163 P.3d 252 (2007) (discussing
Leon).

Applying Leon to the facts of this case, the district court had concluded that the
officers "objectively and reasonably" relied on the affidavit and therefore the evidence
described in the affidavit should not be subject to exclusion. The court suppressed any
item not listed in the affidavit.

In Kleypas I, this court affirmed the district court's decision to allow the admission
of the evidence but did so for reasons different from those given by the district court.
Relying on State v. LeFort, 248 Kan. 332, 806 P.2d 986 (1991), and State v. Dye, 250
Kan. 287, 826 P.2d 500 (1992), the Kleypas I court explained, in part:

"[W]here the affidavit contains a particularized description of the items to be seized; the
affiant and the affidavit are both present at the scene of the execution of the search

34
 warrant, even if the affiant is not the person executing the search warrant; and the officers
executing the search warrant are briefed as to the items listed in the affidavit, the
description in the affidavit cures a deficiency in the description of the search warrant. The
warrant was, therefore, valid, and the trial court erred in finding otherwise." State v.
Kleypas, 272 Kan. 894, 930, 40 P.3d 139 (2001) (Kleypas I), cert. denied 537 U.S. 834
(2002), abrogated in part by Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed.
2d 429 (2006).

Following the Kleypas I decision and the remand to the district court for
resentencing proceedings, the United States Supreme Court decided Groh. Kleypas cited
Groh to the district court during the remand proceedings in a motion that sought the
suppression of any item seized under the warrant. In support of that motion, Kleypas
noted that Groh (1) held a search warrant that fails to identify the items to be seized is
invalid and (2) suggested the Leon good-faith exception could not apply because officers
would not have objectively and reasonably relied on the warrant. The district court agreed
and suppressed all evidence seized from Kleypas' apartment.

Kleypas, of course, does not complain of that ruling on appeal, and the State has
not cross-appealed that ruling. But Kleypas asks us to reverse his convictions because the
evidence had been improperly admitted in the Kleypas I trial and considered by the jury
in convicting him. He argues that both this court's Kleypas I ruling on this point and the
district court's ruling before the first trial must be deemed clearly erroneous in light of
Groh. We first consider whether our review of his argument is precluded.

35
 1.2. State's Preclusion Arguments

Largely sidestepping Kleypas' reliance on the clearly erroneous exception to the
law of the case doctrine, the State suggests we should not consider the effect of Groh on
our prior ruling because: (a) Kleypas has failed to present an exceptional circumstance
and (b) Groh does not reflect a change in the law.

1.2(a). State's Exceptional Circumstance Argument

For support of the argument that Kleypas has failed to establish the existence of an
exceptional circumstance warranting reconsideration of this court's prior ruling, the State
cites State v. Kelly, 291 Kan. 868, 248 P.3d 1282 (2011), and Rowland v. State, 289 Kan.
1076, 219 P.3d 1212 (2009). In Kelly, we held that "[a]bsent a showing of exceptional
circumstances, the court can dismiss a second or successive [K.S.A. 60-1507] motion as
an abuse of remedy." 291 Kan. at 872. And in Rowland, we held that "a K.S.A. 60-1507
motion cannot serve as a vehicle to raise an issue that should have been raised on direct
appeal, unless the movant demonstrates exceptional circumstances excusing earlier
failure to bring the issue before the court." 289 Kan. at 1087.

Both of these cases relate to collateral attacks after final judgment has been
entered as opposed to an appeal before final judgment, such as we have in this case. As
we have discussed, in the context of a second appeal before entry of final judgment,
longstanding Kansas precedent indicates a court should correct errors while the parties
are still before it if an exception to the law of the case doctrine applies. See Hudson, 114
Kan. at 335; Henry, 83 Kan. at 108; Merrill, 65 Kan. at 451. We reject the State's
invitation to graft an exceptional circumstances requirement to the law of the case

36
doctrine. Hence, if Kleypas can meet a law of the case exception, he need not also show
an exceptional circumstance.

1.2(b). Controlling Exception

The State also argues that other courts have concluded Groh does not represent a
change in the law and should not be applied under the second law of the case exception.
The State assumes that a change in controlling authority is required under the second
exception; however, a clarification of controlling authority can also suffice. See, e.g.,
United States v. Harris, 531 F.3d 507, 513 (7th Cir. 2008) (doctrine "'authorizes such
reconsideration [of a previous ruling in the same litigation] if there is a compelling
reason, such as a change in, or clarification of, law that makes clear that the earlier ruling
was erroneous'"). In his brief, Kleypas identifies both the new, controlling law exception
and the clearly erroneous exception. These are generally recognized as separate
exceptions. See 18B Wright, Miller, & Cooper, Federal Practice and Procedure:
Jurisdiction 2d § 4478, pp. 670-72 (2002).

Logically, the two exceptions overlap—a change or clarification in the controlling
law may mean a nonfinal decision is clearly erroneous. Whether there is overlap depends
on the retroactive effect of controlling caselaw. In turn, the retroactive effect of
controlling authority depends on whether the new authority is being applied before or
after final judgment. Compare Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93
L. Ed. 2d 649 (1987) ("[A] new rule for the conduct of criminal prosecutions is to be
applied retroactively to all cases, state or federal, pending on direct review or not yet
final, with no exception for cases in which the new rule constitutes a 'clear break' with the
past."), and Gaudina v. State, 278 Kan. 103, 106, 92 P.3d 574 (2004) (Kansas follows

37
"the same rule for finality [for purposes of the retroactive applicability of a new rule] set
forth in Griffith."), with Teague v. Lane, 489 U.S. 288, 310-13, 109 S. Ct. 1060, 103 L.
Ed. 2d 334 (1989) (constitutional rules of criminal procedure will not apply retroactively
to cases on collateral review, unless: [1] the new rule places "'certain kinds of primary,
private individual conduct beyond the power of the criminal law-making authority to
proscribe'"; or [2] the new rule establishes a watershed rule of criminal procedure that
"implicate[s] the fundamental fairness of the trial," without which "the likelihood of an
accurate conviction is seriously diminished").

The principal case on which the State relies, Baranski v. United States, 515 F.3d
857 (8th Cir. 2008), arose when a prisoner sought habeas corpus relief from a final
judgment. As a collateral attack on a federal conviction, the Teague rule applied. See
Baranski, 515 F.3d at 861 (citing Teague, 489 U.S. 288). In contrast, the rule in Griffith
would apply in this appeal because Kleypas' judgment is not yet final. The other case
cited by the State, United States v. Hamilton, 591 F.3d 1017, 1026 (8th Cir. 2010),
involved a direct appeal and did not have a law of the case question before it; it merely
included law of the case language from Baranski as part of its discussion of that decision.

Moreover, the new, controlling law exception discussed in Baranski and the
clearly erroneous exception relied upon by Kleypas are not necessarily duplicative. A
decision may be clearly erroneous even if there has not been a change in the law. For
example, in Merrill, 65 Kan. at 451, this court reconsidered its prior ruling not because of
new authority, but because "the rule of the former case is shattered by the pressing weight
of opposing authority, and that reason is against it." Most, if not all of the opposing
authority had been decided before the prior decision. And it was not controlling authority
but persuasive authority from other states and England. 65 Kan. at 439-50. In other

38
words, Kleypas need not show that the new authority establishes a change in the law,
merely that the new authority illustrates the clear error of the prior decision. For this
reason alone, we do not find the State's argument particularly persuasive.

Furthermore, in both Baranski and Hamilton, the Eighth Circuit Court of Appeals
distinguished Groh from the facts of the case. In contrast, this case arises on similar facts
to Groh, and some additional discussion of Groh explains the distinction between it and
the Eighth Circuit cases as well as the similarity between it and this case.

1.3. Groh's Impact

In Groh, law enforcement officers conducted a search authorized by a deficient
warrant. In the space on the Groh warrant where there should have been a description of
the items that could be seized under the magistrate's order, the warrant instead described
the place to be searched. In contrast, in this case, the portion of the warrant where the
items were to be described was completely blank; a different part of the warrant
described the place to be searched. Practically speaking, the differences between the
Groh warrant and the warrant in this case are of no importance—neither warrant
described the items to be seized.

Given the deficiency in the Groh warrant, the Supreme Court held:

"The warrant was plainly invalid. The Fourth Amendment states unambiguously
that 'no Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to be
seized.' (Emphasis added.) The warrant in this case complied with the first three of these
requirements: It was based on probable cause and supported by a sworn affidavit, and it

39
 described particularly the place of the search. On the fourth requirement, however, the
warrant failed altogether. . . .

"The fact that the application adequately described the 'things to be seized' does
not save the warrant from its facial invalidity. The Fourth Amendment by its terms
requires particularity in the warrant, not in the supporting documents." 540 U.S. at 557.

The Court did qualify its holding, however, leaving open the possibility a warrant
could be valid if it incorporated a supporting application or affidavit and that document
accompanied the warrant. 540 U.S. at 557-58. But the Groh warrant, like the warrant in
this case, did not incorporate the affidavit or application.

The Groh majority rejected a point made by Justice Clarence Thomas in dissent
that echoes this court's reasoning in Kleypas I. Justice Thomas had pointed out that the
officer who had applied for and obtained the Groh warrant had briefed the search team;
had provided the team a copy of the search warrant application, the supporting affidavit,
and the warrant; and had reviewed with the team the specific items listed in the affidavit.
540 U.S. at 576. (Thomas, J., dissenting). Despite these circumstances, which are
markedly similar to those in this case, the majority noted the warrant "did not incorporate
other documents by reference, nor did either the affidavit or the application (which had
been placed under seal) accompany the warrant." 540 U.S. at 558. This meant, in the
Groh majority's view, the warrant was "so obviously deficient that we must regard the
search as 'warrantless' within the meaning of our case law." 540 U.S. at 558.

In Baranski and Hamilton, the two cases cited by the State, the warrants did
include incorporation language. In Baranski, the Eighth Circuit noted it had "previously
distinguished Groh from a situation like the one here where an incorporated document

40
provided '"the necessary particularity for [the] warrant"' required under the Fourth
Amendment." 515 F.3d at 861 (quoting United States v. Gamboa, 439 F.3d 796, 807 [8th
Cir.], cert. denied 549 U.S. 1042 [2006]). This meant "Groh does not represent a change
in law that would affect Baranski's case." 515 F.3d at 861. Later, in Hamilton, the other
decision cited by the State, the Eighth Circuit described the warrant in that case as
containing language of incorporation, which was not "as defective as the warrants in
Groh" but "not as clear as that contained in Baranski." Hamilton, 591 F.3d at 1027.

In contrast, the facts of this case parallel those of Groh, and Groh instructs that the
mere presence of the affidavit at Kleypas' apartment when it was searched did not satisfy
the Fourth Amendment because the warrant did not specifically incorporate the affidavit.
This does not end our inquiry, however, because the district court's rationale
foreshadowed this portion of the Groh decision; this means the district court correctly
determined the warrant was invalid. But we still must consider whether the district court's
decision to admit the evidence despite the constitutional violation was erroneous. As we
have discussed, the district court based its ruling on the Leon good-faith exception. The
Groh court indirectly provided guidance on how to apply that exception to the facts of
this case, although Groh was a civil action for damages caused by the illegal search as
opposed to a criminal action like the one we now consider

In Groh v. Ramirez, 540 U.S. 551, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004), the
lead officer of the search team argued he was entitled to qualified immunity from civil
liability despite the unconstitutionality of the search. In addressing this argument, the
Court noted the similarity between the civil standard for determining qualified immunity
and the standard for determining whether a law enforcement officer's conduct falls within
the good-faith exception to the exclusionary rule that applies in criminal cases. 540 U.S.

41
at 565 n.8 ("'[T]he same standard of objective reasonableness that we applied in the
context of a suppression hearing in Leon defines the qualified immunity accorded an
officer.'").

Viewing the objective reasonableness standard through the lens of the Fourth
Amendment's warrant particularity requirement, the United States Supreme Court
concluded "no reasonable officer could believe that a warrant that plainly did not comply
with that requirement was valid." 540 U.S. at 563. Moreover, without a valid warrant to
authorize the search, "[n]o reasonable officer could claim to be unaware of the basic rule,
well established by our cases, that, absent consent or exigency, a warrantless search of
the home is presumptively unconstitutional." 540 U.S. at 564. Driving the point home,
the Court concluded the facts presented a situation where a warrant was so "'facially
deficient—i.e., in failing to particularize the place to be searched or the things to be
seized—that the executing officers cannot reasonably presume it to be valid.' Leon, 468
U.S. at 923." Groh, 540 U.S. at 565.

Thus, while Groh did not rule directly on the applicability of the good-faith
exception to the exclusionary rule, its rationale, which the Court applied to facts similar
to those in this case, suggests the good-faith exception would not apply here and
suppression of the evidence would be an appropriate remedy. This also means the law of
the case doctrine does not preclude review of Kleypas' guilt-phase claim because this
court refuses to apply the law of the case when "fully satisfied that the rule of the former
case is shattered by the pressing weight of opposing authority." Railway Co. v. Merrill,
65 Kan. 436, 451, 70 P. 358 (1902).

42
 That does not mean, however, that Kleypas is entitled to a reversal of his
convictions. Rather, we must determine whether the error in admitting the evidence was
harmless and, only if it was not, will we reverse his convictions.

1.4. Harmless Error

Neither party discusses the meaning of "clearly erroneous" as used in Collier or
other cases applying the law of the case doctrine. In the context of jury instruction claims,
the phrase "clearly erroneous" has "changed from a determination of whether the
instruction was patently erroneous to a determination of whether the instruction was
clearly prejudicial." State v. Williams, 295 Kan. 506, 512-14, 286 P.3d 195 (2012)
(recognizing that, "[o]ver time, this court's description and application of 'clearly
erroneous' has been fluid"); see K.S.A. 22-3414(3) (no party may assign as error giving
or failure to give instruction unless party objects unless giving or failure to give
instruction is clearly erroneous). In the jury instruction context, this shift has resulted
from preservation requirements and the appellate jurisdictional limitations contained in
K.S.A. 22-3414(3). See Williams, 295 Kan. at 515 (failure to object to instruction
presents jurisdictional bar to appellate review unless claim alleges instruction clearly
erroneous).

The same statutory jurisdictional restrictions applicable to instructional claims do
not exist in the context of a law of the case exception. In those cases, courts follow a
traditional two-step process of (1) determining whether "clear" error occurred and
(2) assessing the prejudicial impact of the error.

43
 Regarding the first step, several decisions discuss what is meant by "clear" error.
In one of the earliest Kansas cases, C. B. U. P. Rld. Co. v. Shoup, 28 Kan. 394, 395-96,
1882 WL 1053 (1882), this court explained that "unless it is plain that a serious error has
been committed, such decision should be adhered to" and, thus, where "it is not clear to
us that the prior decision was wrong" the court will "adhere to that decision." Later cases,
simply examined whether the ruling was patently or palpably erroneous. See, e.g., Speer
v. Dighton Grain, Inc., 229 Kan. 272, 279, 624 P.2d 952 (1981) ("patently"); State v.
Hutchison, 228 Kan. 279, 285, 615 P.2d 138 (1980) ("palpably"); Henry v. Railway Co.,
83 Kan. 104, Syl. ¶ 1, 109 P. 1005 (1910) ("palpably"); see also Black's Law Dictionary
659 (10th ed. 2014) (defining "clear error" as an action or decision "that appears to a
reviewing court to have been unquestionably erroneous").

Even though clear error occurred, it may not warrant reversal because prejudice
affecting a litigant's substantial rights is required before an appellate court will reverse a
conviction. See K.S.A. 2015 Supp. 60-261 ("At every stage of the proceeding, the court
must disregard all errors and defects that do not affect any party's substantial rights.");
K.S.A. 60-2105 ("The appellate court shall disregard all mere technical errors and
irregularities which do not affirmatively appear to have prejudicially affected the
substantial rights of the party complaining."); see also Arizona v. California, 460 U.S.
605, 618 n.8, 103 S. Ct. 1382, 75 L. Ed. 2d 318 (1983) ("Under law of the case doctrine,
as now most commonly understood, it is not improper for a court to depart from a prior
holding if convinced that it is clearly erroneous and would work a manifest injustice.");
Laffey v. Northwest Airlines, Inc., 642 F.2d 578, 585 (D.C. Cir. 1980) (law of the case
doctrine prevents reconsideration of a decision unless error and injustice coincide).

44
 We explained the burden imposed by K.S.A. 2015 Supp. 60-261 and K.S.A. 60-
2105 in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594
(2012), by stating:

"[W]e conclude that before a Kansas court can declare an error harmless it must
determine the error did not affect a party's substantial rights, meaning it will not or did
not affect the trial's outcome. The degree of certainty by which the court must be
persuaded that the error did not affect the outcome of the trial will vary depending on
whether the error implicates a right guaranteed by the United States Constitution. If it
does, a Kansas court must be persuaded beyond a reasonable doubt that there was no
impact on the trial's outcome, i.e., there is no reasonable possibility that the error
contributed to the verdict. If a right guaranteed by the United States Constitution is not
implicated, a Kansas court must be persuaded that there is no reasonable probability that
the error will or did affect the outcome of the trial." 292 Kan. at 565.

See, e.g., State v. Carr, 300 Kan. 1, 211, 331 P.3d 544 (2014), rev'd and remanded 577
U.S. ___, 136 S. Ct. 633, 193 L. Ed. 2d 535 (2016) (applying Ward harmless-error
paradigm in capital case).

Under this rubric, we must first determine the level of certainty under which we
consider the impact of the error on the jury's verdict. This defective warrant issue arises
under the Fourth Amendment to the United States Constitution, which means we must
apply the constitutional harmless error standard defined in Chapman v. California, 386
U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Under that standard, we must be
convinced beyond a reasonable doubt that the error complained of did not affect the
outcome of the trial in light of the entire record—that is, that there is no reasonable
possibility the error affected the jury's verdict of guilt. Ward, 292 Kan. at 569.

45
 Kleypas, in arguing that the introduction of evidence seized from his apartment
requires us to reverse his convictions, points to a shower curtain collected from his
apartment. A blood stain on the curtain matched C.W.'s DNA. In addition to the curtain
leading to forensic evidence, Kleypas notes that Logan, the State's expert witness, used
the presence of the DNA on the curtain to rebut Kleypas' defense theory that he had
confabulated his confession.

Certainly, the DNA testing of the blood on the shower curtain tied Kleypas to the
crimes. Yet, even if the shower curtain and the accompanying DNA testing had not been
admitted at trial, we have no doubt the jury would have convicted Kleypas based on the
other overwhelming evidence against him. Other physical evidence tied Kleypas to the
crimes, including serological and DNA evidence obtained from the crime scene and
C.W.'s body; records showing Kleypas had called C.W.'s apartment just before the
murder; and Kleypas' possession of a camera taken from C.W.'s apartment. Most of the
details of the crime came to light as a result of Kleypas' confession. And Logan pointed
to the many details in Kleypas' confession that had been confirmed by physical and other
evidence to support his opinion that Kleypas was able to recite details of the crime
because he was the crime perpetrator, not a false confessor. Even without the DNA
obtained from the shower curtain, Logan's point would have stood.

In light of the overwhelming nature of the evidence of Kleypas' guilt, we have no
reasonable doubt that a jury would have convicted Kleypas even if it had not heard or
seen evidence of the shower curtain, the DNA testing of the stain on the shower curtain,
or Logan's testimony regarding the physical evidence seized from Kleypas' apartment
which confirmed the confession. Therefore, we reject Kleypas' first argument.

46
ISSUE 2: AN INTERVENING CHANGE IN THE LAW REQUIRES REVERSAL OF KLEYPAS'
ATTEMPTED RAPE CONVICTION.

In his second guilt-phase issue, Kleypas argues his conviction for attempted rape
is multiplicitous with his conviction for capital murder. See K.S.A. 21-3439(a)(4)
(defining capital murder as the "intentional and premeditated killing of the victim of one
of the following crimes in the commission of, or subsequent to, such crime: Rape . . . or
any attempt thereof"). For support, Kleypas cites State v. Appleby, 289 Kan. 1017, 1033,
221 P.3d 525 (2009), in which we held two convictions—one for capital murder based
upon the intentional and premeditated killing of a victim in the commission of (or
subsequent to) the attempted rape of the same victim, and the other for the attempted rape
of the victim—"are improperly multiplicitous and violate [the defendant's] right to be free
from double jeopardy."

Kleypas did not raise this multiplicity issue in State v. Kleypas, 272 Kan. 894, 952,
40 P.3d 139 (2001) (Kleypas I), cert. denied 537 U.S. 834 (2002), abrogated in part by
Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006). Therefore,
we are not considering whether a Kleypas I issue was decided in error. Rather, the law of
the case question is whether the intervening caselaw of Appleby applies to Kleypas'
appeal. Before we reach that question, however, the State argues the issue is not properly
preserved for this court's consideration.

We readily agree with the State that Kleypas did not present this issue to the
district court. However, we have allowed defendants to raise multiplicity issues for the
first time on appeal. See, e.g., Carr, 300 Kan. at 163-64 (considering a multiplicity claim
for the first time on appeal in order to serve the ends of justice and prevent a denial of

47
fundamental rights); State v. Harris, 284 Kan. 560, 569, 162 P.3d 28 (2007) (same); State
v. Nguyen, 285 Kan. 418, 433, 172 P.3d 1165 (2007) (same).

Furthermore, the legislature has mandated through K.S.A. 2015 Supp. 21-6619(b)
that this court "shall consider . . . any errors asserted in the review and appeal." In
Kleypas I, this court interpreted a nearly identical predecessor statute (K.S.A. 21-
4627[b]) and held the provision was a directive that required consideration of all claims
raised in a death penalty appeal without regard to whether the claims were properly
preserved. 272 Kan. at 952. In this way, the statute created a special exception to the
general rule that an appellate court will not consider an issue raised for the first time on
appeal, i.e., not raised in the district court. See Kleypas I, 272 Kan. at 952.

The State disagrees with the Kleypas I interpretation of K.S.A. 21-4627(b). In
making its preservation argument, the State does not address this court's longstanding
precedent interpreting the legislature's use of the words, "any errors asserted in the review
and appeal," in other statutes to require review of unpreserved error—specifically,
Kansas' previous death penalty provision and also a statute relating to crimes committed
before 1994 in which a hard-40 sentence had been imposed. The Kleypas I court's
interpretation of the K.S.A. 21-4627(b) provision continues the historical reading of these
words and the historical approach in death penalty cases. See, e.g., State v. White, 263
Kan. 283, 306, 950 P.2d 1316 (1997) (K.S.A. 1993 Supp. 21-4627[2], which governed
hard-40 cases that occurred before 1994, "requires a court to 'consider . . . any errors
asserted in the review and appeal, ' even if the error has nothing to do with the sentence
imposed"); State v. Bornholdt, 261 Kan. 644, 651, 932 P.2d 964 (1997) (holding that
K.S.A. 1993 Supp. 21-4627's requirement that the court review any error asserted on
appeal supersedes the general contemporaneous objection rule), disapproved on other

48
grounds by State v. Marsh, 278 Kan. 520, 532, 102 P.3d 445 (2004); State v. Collier, 259
Kan. 346, Syl. ¶ 1, 913 P.2d 597 (1996) ("In an appeal in a case in which the hard 40
sentence was imposed, even if the defendant fails to raise objections in the trial court to
the issues raised on appeal, we will consider and reach each issue raised because of the
specific statutory direction in K.S.A. 1993 Supp. 21-4627."); State v. Hickock & Smith,
188 Kan. 473, 480, 363 P.2d 541 (1961) (explaining that even though several claims
raised on appeal under a prior death penalty statute were not properly preserved, "in
accord with its fixed policy in appeals involving capital punishment . . . , this court will
examine all claims advanced by counsel with meticulous care for the purpose of
determining whether they disclose any possible error prejudicial to the rights of the
defendants"); State v. Lammers, 171 Kan. 668, 672, 237 P.2d 410 (1951) (considering an
appellate claim despite the defendant's failure to raise the issue below because "[t]his is a
case where capital punishment has been assessed . . . and on that account we have
concluded to examine the question with meticulous care").

Kleypas I merely adopted the same approach and applied it to our current death
penalty statute, and this court has continued to do so. See, e.g., State v. Cheever, 304
Kan. 866, Syl. ¶ 6, 375 P.3d 979 (2016) (Cheever II) ("K.S.A. 2015 Supp. 21-6619[b]
imposes a mandatory exception in death penalty appeals to various statutes, rules, and
prudential practices barring consideration of unpreserved issues."); State v. Robinson, 303
Kan. 11, Syl. ¶ 44, 363 P.3d 875 (2015) ("The failure to lodge a contemporaneous
objection to the admission of evidence typically forecloses subsequent challenge on
appeal. However, in capital murder appeals, K.S.A. 21-4627[b], recodified as K.S.A.
2014 Supp. 21-6619[b], compels review of any issue raised in defendant's brief, even if
not preserved below."), disapproved of on other grounds by Cheever II, 304 Kan. at 902;
Carr, 300 Kan. at 16 ("[B]ecause this is a death penalty case, this court is empowered to

49
notice and discuss unassigned potential errors under K.S.A. 2013 Supp. 21-6619[b]);
State v. Cheever, 295 Kan. 229, 241, 284 P.3d 1007 (2012) (Cheever I) (K.S.A. 21-
4627[b] "mandates that we consider any errors the parties raise on appeal, whether
preserved for review or not."), vacated and remanded on other grounds 571 U.S. ___,
134 S. Ct. 596, 187 L. Ed. 2d 519 (2013).

This long line of cases presents a formidable wall of precedent for the State to
overcome. See State v. Spencer Gifts, LLC, 304 Kan. 755, 766, 374 P.3d 680 (2016)
("Certainly, we do not lightly disapprove of precedent. The doctrine of stare decisis
'instructs that points of law established by a court are generally followed by the same
court and courts of lower rank in later cases in which the same legal issue is raised.'"). In
attempting to do so, the State makes statutory interpretation and waiver arguments.

In the State's statutory interpretation argument, it suggests that, when read as a
whole, K.S.A. 2015 Supp. 21-6619 means we are to consider only those issues properly
preserved under general rules of appellate procedure. The State points to subsection (a) of
the statute, which states: "A judgment of conviction resulting in a sentence of death shall
be subject to automatic review by and appeal to the supreme court of Kansas in the
manner provided by the applicable statutes and rules of the supreme court governing
appellate procedure."

We do not find the State's argument persuasive. Under our rules regarding
statutory interpretation, we

"must first attempt to ascertain legislative intent through the statutory language enacted,
giving common words their ordinary meanings. [Citation omitted.] When a statute is
plain and unambiguous, an appellate court does not speculate as to the legislative intent

50
 behind it and will not read into the statute something not readily found in it. Where there
is no ambiguity, the court need not resort to statutory construction. Only if the statute's
language or text is unclear or ambiguous does the court use canons of construction or
legislative history or other background considerations to construe the legislature's intent.
[Citation omitted.]" (Emphasis added.) State v. Urban, 291 Kan. 214, 216, 239 P.3d 837
(2010).

The plain language of K.S.A. 2015 Supp. 21-6619 does not lead us to the
conclusion urged by the State. The words in subsection (a) indicate it relates to the
procedures for bringing an appeal. To the extent the statute ambiguously layers limiting
procedural rules on top of the words of subsection (b), it conflicts with the unqualified
language of subsection (b) that directs this court—by using the word "shall"—to
"consider . . . any errors asserted in the review and appeal." As we have said when
construing a different statute: "Simply put, 'any' means 'any.'" Sierra Club v. Moser, 298
Kan. 22, 53, 310 P.3d 360 (2013).

Even if we thought the statute was ambiguous, several rules of construction
suggest the legislature intended the meaning we have previously described. First,
legislatures are presumed to be familiar with court precedent and to expect that its
enactments will be interpreted accordingly. See United States v. Wells, 519 U.S. 482,
495, 117 S. Ct. 921, 137 L. Ed. 2d 107 (1997). Second, "'identical words or terms used in
different statutes on a specific subject are [ordinarily] interpreted to have the same
meaning in the absence of anything in the context to indicate that a different meaning was
intended.'" Callaway v. City of Overland Park, 211 Kan. 646, 652, 508 P.2d 902 (1973)
(quoting Williams v. Board of Education, 198 Kan. 115, 124-25, 422 P.2d 874 [1967]).
Third, "[t]he historical background and changes made in a statute are to be considered by
the court in determining legislative intent for the purpose of statutory construction."

51
Callaway, 211 Kan. at 650. These rules combine to persuade us the Kansas Legislature
intended us to continue our historical interpretation of this language and our forgiving
approach to preservation in the context of death penalty appeals.

We thus reject the State's statutory interpretation argument. We now turn to the
State's argument that Kleypas waived his multiplicity argument by failing to raise it in his
first trial or first appeal and by failing to raise it before the district court on remand.

In support, the State cites State v. Neer, 247 Kan. 137, 795 P.2d 362 (1990), which
involved a motion to modify a sentence brought after a direct appeal was final. In that
decision, we held: "[T]hose issues that could have been presented [on appeal], but were
not presented, are deemed waived. Where a defendant's claim has not been raised at trial
or on direct appeal, such a default prevents the defendant from raising the claim in a
second appeal or a collateral proceeding." 247 Kan. at 140-41. But, as we have discussed,
Kleypas' direct appeal is not yet final and he raises the issue on direct appeal; we thus
hesitate to apply Neer.

Perhaps anticipating our hesitation, the State argues the waiver rule refers to the
finality of a conviction as opposed to the finality of a case. For example, in Gaudina v.
State, 278 Kan. 103, 106, 92 P.3d 574 (2004), we noted that Kansas follows "the same
rule for finality [for purposes of the retroactive applicability of a new rule] set forth in
Griffith v. Kentucky, 479 U.S. 314, [328, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987)]." We
then explained that Griffith had defined "final" as "'a case in which a judgment of
conviction has been rendered, the availability of appeal exhausted, and the time for a
petition for certiorari elapsed or a petition for certiorari finally denied.' 479 U.S. at 321
n.6." (Emphases added.) Gaudina, 278 Kan. at 106. In turn, the Griffith footnote defined

52
"convictions that were final." (Emphasis added.) Griffith, 479 U.S. at 321 & n.6. And in
State v. Berry, 292 Kan. 493, 514, 254 P.3d 1276 (2011), we used similar language,
stating: "A conviction is generally not final until: (1) the judgment of conviction is
rendered; (2) the availability of an appeal is exhausted; and (3) the time for any rehearing
or final review has passed." (Emphasis added.)

The State overreads this language by removing it from the context of the issues
being addressed in these cases. As we determined earlier in this decision, a conviction is
not final until final judgment on both the conviction and the sentence has been entered on
direct appeal. We are not willing to sever the conviction from the sentence for purposes
of determining finality. Because a final judgment had not been entered, Kleypas'
conviction was not yet final when Appleby was decided. And, as we have discussed, "'a
new rule for the conduct of criminal prosecutions is to be applied retroactively to all
cases, state or federal, pending on direct review or not yet final.'" Gaudina, 278 Kan. at
106 (quoting Griffith, 479 U.S. at 328).

Finally, the State cites State v. Edwards, 260 Kan. 95, 98, 917 P.2d 1322 (1996),
for the general rule that, preservation issues aside, a party waives an issue by failing to
brief it or argue it on appeal. Neither Edwards nor, as far as we have found, any of the
legion of cases stating the same general rule relate to the situation here, where a party
brings a second appeal after a limited retrial. Nor do they deal with application of K.S.A.
2015 Supp. 21-6619(b), which "requires us to 'consider . . . any errors asserted' in a death
penalty case." Carr, 300 Kan. at 164. We applied this provision in Carr, 300 Kan. at 163-
64, to determine a multiplicity issue could be raised for the first time on appeal. We
perceive no reason the same analysis would not apply to an issue not argued in the first
death penalty appeal.

53
 We, therefore, reject the State's arguments and hold that Kleypas' multiplicity
argument can be considered. In response to Kleypas' arguments on the merits and his
citation to Appleby, the State presents no arguments as to why Appleby does not control
the outcome in this case. Indeed, Appleby is directly on point. For the reasons stated in
Appleby, Kleypas' conviction for attempted rape must be reversed and his sentence on
that count vacated. See 289 Kan. at 1033.

In addition, because the attempted rape conviction served as the primary crime to
establish the base sentence under the Kansas Sentencing Guidelines Act, Kleypas'
sentence for aggravated burglary must also be vacated and this case remanded for
resentencing on that count. See K.S.A. 21-4720(b)(2) (Furse) (requiring sentencing judge
to establish a base sentence for the primary crime, which is the crime with the highest
crime severity ranking, and prohibiting use of off-grid crime as the primary crime);
K.S.A. 2015 Supp. 21-6819(b)(5) (directing remand when reversing conviction
designated as the primary crime); Kansas Sentencing Guidelines Desk Reference Manual
2015, 95 (same); see also State v. Montgomery, 34 Kan. App. 2d 511, 514-17, 120 P.3d
1151 (2005) (discussing retroactive effect of remand requirement).

ISSUES 3 THROUGH 6: WE DECLINE TO REVISIT OUR KLEYPAS I RULINGS ON THE
REMAINING GUILT-PHASE ISSUES.

In issues three through six, Kleypas argues he is entitled to have his convictions
reversed because the district court denied his constitutional right to present a complete
defense when it precluded him from meaningfully questioning his expert about whether
he had confabulated his statement to police; the district court erred in failing to suppress
his statements to law enforcement officers; the district court erred in failing to suppress

54
the State's evidence regarding DNA testing by the Federal Bureau of Investigation (FBI);
and the district court abused its discretion and violated his Eighth and Fourteenth
Amendment rights when it found him competent to stand trial.

In his brief, Kleypas sets out these four issues under the heading "Preserved
Issues" and then "acknowledges that this Court's prior decision forecloses those issues
under [the] 'law of the case' doctrine." Kleypas does not make any new arguments, cite
any new authority for our consideration, or assert a law of the case exception. In light of
his concession that the law of the case doctrine would ordinarily preclude our review, and
given that he presents us with no argument regarding why our prior holdings were
incorrect, we decline to revisit these issues and reaffirm our previous holdings. See State
v. Kleypas, 272 Kan. 894, 916-23, 40 P.3d 139 (2001) (Kleypas I) (constitutional right to
present a complete defense), cert. denied 537 U.S. 834 (2002), abrogated in part by
Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006); 272 Kan. at
923-25 (suppression of statements to law enforcement); 272 Kan. at 933-37 (suppression
of DNA evidence); 272 Kan. at 984-90 (competency to stand trial).

CONCLUSION OF GUILT-PHASE ISSUES

We affirm Kleypas' convictions for capital murder and aggravated burglary. We
reverse his conviction for attempted rape and vacate the sentence on that count, as we
must under Appleby. Also, because the attempted rape sentence served as the base
sentence for the on-grid offenses, we vacate his other guidelines sentence and remand for
resentencing on the aggravated burglary conviction.

55
 ANALYSIS OF SENTENCING PHASE ISSUES

We now turn to the issues Kleypas raises regarding his remand sentencing
proceedings.

ISSUE 7: THE DISTRICT COURT DID NOT ERR IN DENYING A MISTRIAL BASED ON A
SPECTATOR'S COURTROOM BEHAVIOR.

In Kleypas' first sentencing issue, he claims the district court committed reversible
error when it denied his motion for mistrial, which he brought after being attacked by a
courtroom spectator. In analyzing this issue, we need to consider some additional facts,
discuss the analytical framework and standard of review for this issue, and apply those
standards to determine whether the district court committed error in ruling that a
fundamental failure in the proceeding had occurred but that the trial could proceed
without injustice.

7.1. The Courtroom Incident

A courtroom spectator attacked Kleypas during the remand sentencing
proceedings. The record reflects the following details of what happened:

"THE COURT: Stop him. Ladies and gentlemen, ladies and gentlemen, go into
the jury room quickly. We are in recess. Counsel, come back into chambers.

"(A recess was taken, after which the following proceedings were had in
chambers.)

56
 "THE COURT: Counsel, we are in chambers. Present would be all attorneys of
record and Mr. Kleypas in person. We took an immediate recess because the victim's
father Mr. [W.]—we took an immediate recess because Mr. [W.] the victim's father
attacked Mr. Kleypas just a few moments ago in the courtroom in front of the jury. The
Court declared an immediate recess, put the jury in the jury room. Prepared to listen to
comments."

Kleypas himself immediately replied, "Overlook it." Despite Kleypas' statement,
his attorneys moved for a mistrial. During the chambers discussion, one of Kleypas'
attorneys indicated: "Mr. [W.] attacked the defendant, kicked him, all in the presence of
the jury." That attorney also said: "I saw the jury file back into the jury room. I heard
some of them I think sobbing, some of the jurors." Another of his attorneys recounted:

"[A]t the end of the 911 dispatch tape, the family was moving out of the courtroom but
got up and Mr. [W.] looked over at Gary and we were sitting right next to each other. I
tried to hold him back but I'm not—talking about Mr. [W.], I was in between the two of
them, and eventually went down."

One of the defense attorneys characterized the event as "one of the most startling
things I've seen in practicing law for twenty-six years." He told the court:

"I don't know how he can get a fair trial now. . . . I don't know how these folks can be fair
based on seeing the victim's father physically attack, grab, try to grab–I think he got to
Mr. Kleypas. I saw him kick Mr. Kleypas. I'm sure the jury did."

At one point, the court added, "Well, I did see Mr. [W.] come beyond the bar. He
actually did make contact with Mr. Kleypas and they did fall to the floor in a struggle.
That's when I ordered the jury to go into the jury room."

57
 The prosecutor requested that the court "tell the jury that that won't be tolerated or
whatever admonishment the Court wants to give and to continue on." The prosecutor also
suggested that C.W.'s father be banished from the courtroom.

The court chose to go forward with the sentencing proceedings.

"THE COURT: All right. I'm going to proceed as follows. I'm going to
respectfully deny the request for mistrial. I will instruct the jury that this conduct is—is
obviously inappropriate. Mr. [W.]'s attack upon Mr. Kleypas was not in any sense
provoked by the State. I think in—it could possibly even be detrimental to the State for
the jury to see it. This may elicit sympathy on the—on behalf of the defendant by the
jury, I don't know, but I don't think the fact that Mr. [W.] attacked Mr. Kleypas
necessarily should automatically lead to a mistrial.

"I am going to ban Mr. [W.] from the courtroom for the duration of the hearing."

The court also stated:

"[L]et me emphasize that I will explain to the jury that this action shall not be considered
against the State, against the defendant. It was an unfortunate circumstance. It should not
have occurred.

"Now, having said that, do you want me to also ask the jury if because of this any
of them feel they cannot be fair and impartial[?]"

Counsel for Kleypas stated simply, "Yes." Counsel for the State agreed and added:
"I would point out it is probably obvious who that was but I don't think [the jurors]
have—or officially know who he was." The district court made clear that no names

58
would be used in the admonishment, and it also instructed the State to have law
enforcement present and ready to intervene should something else happen. The State
indicated that it would "put KBI at the end of each row."

While the district court and attorneys were discussing what had occurred in the
courtroom, they could hear noise in the hallway. An officer then interrupted the chambers
conference and said, "[W]e don't need [the victim's fiancé] back in here." The officer later
explained that the victim's fiancé "made a scene outside the courtroom. All the banging
that we heard after he went out, I don't know what he did, but the—I think the KBI and
the FBI went out and got control of him." After hearing from the officer about the fiancé's
conduct, the district judge also banned him from the courtroom except for the purpose of
his testimony.

Upon returning to the courtroom, the district court addressed the jury, saying:

"THE COURT: Ladies and gentlemen, I have a few comments I want [t]o direct
towards you. What you just observed was obviously very inappropriate and it has no
place in a Court of law in the United States. My apologies to you for what you observed.
I ask that in no way, shape or form that you consider this in your deliberations. Do you all
understand that?

"(Positive response).

"THE COURT: This is not to be held against the defendant. It is not to be held
against the State and it is an unfortunate incident and has absolutely no place in your
deliberations. This does not [a]ffect your ability to be fair and impartial; is that correct?

"(Positive response).

59
 "THE COURT: I'm not trying to put words in your mouth. If I could see by a
show of hands is there anybody here that because of this incident feels that they could be
–that they could not be fair and impartial, please raise your hand.

"(No response).

"THE COURT: And do you all understand that and, by the way, for the record, I
see no hands. Do you all understand this has—as far as your deliberations are concerned,
this never occurred; do you all understand that?

"(Positive response).

"THE COURT: Okay. And, for the record, I'm looking at the jury and they are
all shaking their head in the affirmative. So we all are agreed, put this out of your mind
and it has no place. Do we all understand that?

"(Positive response).

"THE COURT: There have been two individuals banished from the courtroom
throughout the duration of this trial as a result of the incident so you need not be
concerned about this sort of matter again.

"Anyway, thank you for your response to the Court's inquiries and I think we are
ready for the State's next witness."

Once court reconvened, witnesses, including C.W.'s fiancé, testified without
further incident.

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 7.2. Analytical Framework and Standard of Review

We note at the outset that the penalty phase of a capital case is effectively a trial
on the issue of punishment; rules applying to the conduct of a trial apply, except where
special rules relating to capital cases have been adopted. Although there are some special
considerations we will discuss, in general, our traditional rubric for considering a motion
for mistrial can be applied to such a motion brought during a penalty proceeding.

At each step of our analysis of a district court's ruling on a motion for mistrial, we
apply an abuse of discretion standard. In general, a district court abuses its discretion
when its ruling is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or
(3) based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011),
cert. denied 132 S. Ct. 1594 (2012).

Our rubric begins with the statutory provision regarding mistrial. Under K.S.A.
22-3423(1)(c), a district court may order a mistrial if there is "[p]rejudicial conduct, in or
outside the courtroom, [that] makes it impossible to proceed with the trial without
injustice to either the defendant or the prosecution." In making this determination, the
district court must engage in a two-step process: First, it must determine if there is a
"fundamental failure" in the proceeding; if so, second, the district court must determine
"whether it is possible to continue the trial without an 'injustice.'" Ward, 292 Kan. at 550.

To determine whether a fundamental failure resulted in an injustice, a district court
must apply K.S.A. 2015 Supp. 60-261 and K.S.A. 60-2105. Ward, 292 Kan. at 564-65.
Both statutes require us to consider whether an error affects "substantial rights." K.S.A.
2015 Supp. 60-261 ("At every stage of the proceeding, the court must disregard all errors

61
and defects that do not affect any party's substantial rights."); K.S.A. 60-2105 ("The
appellate court shall disregard all mere technical errors and irregularities which do not
affirmatively appear to have prejudicially affected the substantial rights of the party
complaining."). This means the court must determine whether the fundamental failure
was harmless. We explained the harmless error paradigm in Ward:

"[B]efore a Kansas court can declare an error harmless it must determine the error did not
affect a party's substantial rights, meaning it will not or did not affect the trial's outcome.
The degree of certainty by which the court must be persuaded that the error did not affect
the outcome of the trial will vary depending on whether the error implicates a right
guaranteed by the United States Constitution. If it does, a Kansas court must be
persuaded beyond a reasonable doubt that there was no impact on the trial's outcome, i.e.,
there is no reasonable possibility that the error contributed to the verdict. If a right
guaranteed by the United States Constitution is not implicated, a Kansas court must be
persuaded that there is no reasonable probability that the error will or did affect the
outcome of the trial." 292 Kan. at 565.

We further explained that the constitutional harmless error standard reflected the
United States Supreme Court's holding in the seminal case of Chapman v. California, 386
U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). There, the Court held that the
"beneficiary of a constitutional error . . . [must] prove beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained." 386 U.S. at 24.

In penalty-phase appeals, our traditional harmless error and clearly erroneous
standards can apply to our reversibility inquiry. See Clemons v. Mississippi, 494 U.S.
738, 753, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990) (approving use of Chapman
harmless error analysis when analyzing trial errors that occurred during the penalty phase
of capital murder trials); Satterwhite v. Texas, 486 U.S. 249, 258, 108 S. Ct. 1792,

62
100 L. Ed. 2d 284 (1988) (same). But, as this court noted in Kleypas I, the Clemons Court
also stated:

"Nothing in this opinion is intended to convey the impression that state appellate
courts are required to or necessarily should engage in reweighing or harmless-error
analysis when errors have occurred in a capital sentencing proceeding. Our holding is
only that such procedures are constitutionally permissible. In some situations, a state
appellate court may conclude that peculiarities in a case make appellate reweighing or
harmless-error analysis extremely speculative or impossible. We have previously noted
that appellate courts may face certain difficulties in determining sentencing questions in
the first instance." Clemons, 494 U.S. at 754.

Nevertheless, the Kleypas I court chose to apply a harmless error standard to a
claim of prosecutorial misconduct during the penalty phase. It stated:

"[T]he standard of review and the ultimate question that must be answered with regard to
whether [error] in the penalty phase of a capital trial was harmless is whether the court is
able to find beyond a reasonable doubt that the [error], viewed in the light of the record as
a whole, had little, if any, likelihood of changing the jury's ultimate conclusion regarding
the weight of the aggravating and mitigating circumstances." Kleypas I, 272 Kan. at
1087-88.

After Kleypas I, we have carried this "little, if any, likelihood of changing the
jury's ultimate conclusion" language forward in discussing the application of harmless
error to other types of errors occurring during the penalty phase of capital cases. E.g.,
State v. Cheever, 304 Kan. 866, 898, 902, 375 P.3d 979 (2016) (Cheever II) (cumulative
error); State v. Robinson, 303 Kan. 11, 307, 363 P.3d 875 (2015) (prosecutorial
misconduct), disapproved of by Cheever II, 304 Kan. 866; State v. Carr, 300 Kan. 1,

63
Syl. ¶ 59, 331 P.3d 544 (2014) (stating that the "little, if any, likelihood" standard applies
to all penalty-phase errors), rev'd and remanded on other grounds 577 U.S. ___, 136 S.
Ct. 633, 193 L. Ed. 2d 535 (2016). The parties do not suggest any reason to deviate when
faced with review of a motion for mistrial.

Even so, the wording of the harmless error standard used in Kleypas I—"little, if
any, likelihood of changing the jury's ultimate conclusion"—differs from the wording
used in Ward for errors involving constitutional rights—that is, harmless beyond a
reasonable doubt, meaning "there is no reasonable possibility that the error contributed to
the verdict." Kleypas I, 272 Kan. at 1087; Ward, 292 Kan. at 565. In Ward, we noted that
the "little, if any, likelihood" language appeared in many Kansas cases, and we
extensively discussed the history of the use of the standard. We even noted that the
standard had been used in Kleypas I, and we relied on language in the Kleypas I decision
to help determine the source and meaning of the language:

"[B]ecause the ['little, if any, likelihood' and the 'harmless beyond a reasonable doubt']
wording is different, periodically a question has arisen as to whether there is a difference
between the standard Kansas applies and the Chapman standard. On each occasion when
this court has addressed this question, we have always concluded the 'little, if any,
likelihood' standard is essentially the same standard as the one adopted in Chapman. For
example, in [Kleypas I], we explained that, although the language is 'somewhat different'
from that used in Chapman, the 'standard is essentially the same.' See also State v. Brown,
280 Kan. 65, 76, 118 P.3d 1273 (2005) (citing Kleypas [I] for recognition that Kansas'
standard, although different from Chapman, was essentially the same). Similarly, in State
v. Cosby, 285 Kan. 230, 169 P.3d 1128 (2007), we reiterated that our use of '"little, if any,
likelihood of changing the result of the trial"' is equivalent to Chapman's '"willingness to
declare a belief that it was harmless beyond a reasonable doubt."' Cosby, 285 Kan. at 252.
The basis for our repeated conclusion that there is no difference between the standards is

64
 explained, in part, by examining the source of the 'little, if any, likelihood' phrase and
discussing the analysis in Chapman in more detail.

"The source of the 'little, if any, likelihood' language is Chapman itself.
However, the phrase is not found in the part of the opinion in which the United States
Supreme Court established the federal constitutional harmless error standard." Ward, 292
Kan. at 559-60.

We went on to explain that, while the Chapman Court had referred to the "little, if
any, likelihood" standard in the context of a historical discussion of harmless error, it had
also noted that this historical standard did not distinguish between federal constitutional
errors and errors of state law or federal statutes and rules. Chapman, 386 U.S. at 22. The
Chapman Court ultimately adopted a standard which would make that distinction and, in
doing so, adopted a core test—the effect of the error on the outcome. It then defined the
federal constitutional standard as "requiring the beneficiary of a constitutional error to
prove beyond a reasonable doubt that the error complained of did not contribute to the
verdict," a standard it equated with determining "'whether there is a reasonable possibility
that the evidence complained of might have contributed to the conviction.'" 386 U.S. at
24 (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S. Ct. 229, 11 L. Ed. 2d 171
[1963]).

In Ward, this court noted this discussion in Chapman and this court's previous
view that the phrase "little, if any, likelihood" conveyed the same level of certainty as the
phrase "no reasonable possibility." This led to the conclusion Kansas should use the
wording adopted in Chapman for the constitutional error standard in order to avoid
confusion. Ward, 292 Kan. at 566. Subsequently, we have abandoned the "little, if any,
likelihood" language in all cases except death penalty proceedings.

65
 We discuss this history to explain that in using the "little, if any, likelihood"
language in our past cases we intended to apply the constitutional harmless error standard
of Chapman. Also, we want to explain we do not intend to establish a different standard
from Kleypas I when we use Chapman/Ward language or cite to Kansas cases using the
Chapman/Ward language. Finally, to avoid this confusion in future cases, we abandon
the "little, if any, likelihood" language and will use the language from Ward and, where
applicable, Chapman when discussing harmless error in the penalty phase of capital
murder cases.

Some other considerations unique to death penalty cases warrant discussion.

First, the Kleypas I court explained that in the penalty phase of a capital trial the
focus on the effect of an error on the outcome would require examining the "likelihood
[or, in Chapman terms, reasonable possibility] of changing the jury's ultimate conclusion
regarding the weight of the aggravating and mitigating circumstances." State v. Kleypas,
272 Kan. 894, 1087-88, 40 P.3d 139 (2001) (Kleypas I), cert. denied 537 U.S. 834
(2002), abrogated in part by Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed.
2d 429 (2006).

Second, the Kleypas I court discussed the unique challenges of applying this
standard in the penalty phase of a death penalty case. As the United States Supreme Court
noted in Satterwhite, "the evaluation of the consequences of an error in the sentencing
phase of a capital case may be more difficult because of the discretion that is given to the
sentencer." 486 U.S. at 258. The Kleypas I court expounded on the difficulty:

"'In contrast [to the guilt phase, in which the factfinder must reach a decision as
to whether certain facts exist], the sentencer in a capital case must first find whether

66
 certain facts exist and then apply a value judgment to those facts. The judge or jury in the
penalty phase must decide whether the evidence is convincing that an aggravating
circumstance exists and whether any mitigating circumstances exist. These assessments
by the judge or jury are essentially comparable to the factfinder's task in the guilt phase in
deciding if the elements of the crime exist. The sentencer, however, is asked to do more.
The sentencer is asked to take the facts found—the aggravating and mitigating
circumstances—and balance them against each other. The balancing is virtually
unguided. The sentencer must make a value judgment whether one group of facts
(aggravating circumstances) is greater, the same as, or less than another group of facts
(the mitigating circumstances).'" 272 Kan. at 1086 (quoting Carter, Harmless Error in the
Penalty Phase of a Capital Case: A Doctrine Misunderstood and Misapplied, 28 Ga. L.
Rev. 125, 148-49 [1993]).

The Kleypas I court recognized caselaw allowing appellate courts to consider
overwhelming evidence of guilt when applying the Chapman test. Kleypas I, 272 Kan. at
1086 (citing Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284
[1969]). The Kleypas I court concluded that appellate courts could apply the Chapman
test to review penalty-phase errors if the court finds that the evidence in favor of the
existence of the aggravating circumstances and the evidence that these aggravating
circumstances outweigh the mitigating circumstances is so overwhelming that the error
had "little or no likelihood of changing" (or no reasonable possibility of changing) the
jury's verdict. 272 Kan. at 1086-87.

The Kleypas I court discussed one additional challenge:

"It must be noted that in Kansas, the jury is not required to reveal what mitigating
circumstances it found to exist. See K.S.A. 21-4624(e) (requiring the jury to designate in
writing the aggravating circumstances it found to exist, but not requiring the same for the
mitigating circumstances). Thus, application of the 'overwhelming evidence test' as a

67
 component of the Chapman harmless error analysis assumes that all of the mitigating
circumstances claimed by the defendant exist." 272 Kan. at 1087.

Finally, the Kleypas I court noted:

"Also, in making the determination as to whether an error was harmless, it is important to
recognize that the question for the reviewing court is not what effect the constitutional
error might generally be expected to have upon a reasonable jury but, rather, what effect
it had upon the actual verdict in the case at hand. Sullivan v. Louisiana, 508 U.S. 275,
279, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993). 'The inquiry, in other words, is not
whether, in a trial that occurred without the error, a [verdict for death] would surely have
been rendered, but whether the [death verdict] actually rendered in this trial was surely
unattributable to the error.' 508 U.S. at 279." 272 Kan. at 1088.

Kleypas asks us to add another consideration to this mix. He maintains that the
heightened reliability requirements of the Eighth and Fourteenth Amendments apply to
the decision whether to grant or deny a motion for mistrial in a capital case. Kleypas cites
State v. Marsh, 278 Kan. 520, 525, 102 P.3d 445 (2004), overruled on other grounds by
Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006), vacated in
part 282 Kan. 38, 144 P.3d 48 (2006), and its reference to Beck v. Alabama, 447 U.S.
625, 637-38, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980).

This court has, in several cases, noted that issues in a death penalty review are
subject to a heightened reliability standard. See, e.g., Carr, 300 Kan. at 284 (recognizing
need for heightened reliability); State v. Scott, 286 Kan. 54, 76, 183 P.3d 801 (2008)
(same); State v. Green, 283 Kan. 531, 545, 153 P.3d 1216 (2007) ("[I]n the context of a
capital sentence, this court has required a heightened degree of reliability."); Marsh, 278
Kan. at 525 ("[T]here is a heightened scrutiny of trial proceedings in a capital case.");

68
Kleypas I, 272 Kan. at 1036 (observing "heightened reliability requirements" apply to
capital sentencing under federal and state constitutions).

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

Nonetheless, with the exception of Boyde v. California, 494 U.S. 370, 110 S. Ct.
1190, 108 L. Ed. 2d 316 (1990), and its standard for review of penalty-phase instructions
implicating the Eighth Amendment, nothing in the United States Supreme Court's
decisions implies an actual change in the standard of review applied to any particular
issue. Rather, the decisions simply lead to the conclusion that the already applicable
standard should be applied and heightened reliability in both the guilt-phase and
penalty-phase proceedings must be ensured. See Brown v. State, 890 So. 2d 901, 907
(Miss. 2004); State v. Lord, 117 Wash. 2d 829, 888, 822 P.2d 177 (1991).

7.3. Fundamental Failure Occurred

In analyzing Kleypas' mistrial argument we must first determine whether a
fundamental failure occurred in the proceedings. The district court did not make a
specific finding on this point, although the State maintains the district court found a
fundamental failure in the proceeding.

69
 Despite the fact the district court did not use the words "fundamental failure," we
agree with the State that the district court clearly felt those words applied. The district
court told the jury that the events were "obviously very inappropriate and it has no place
in a Court of law in the United States" and in doing so conveyed that a fundamental
failure had occurred. Additionally, the district court proceeded as if there had been a
fundamental failure by admonishing the jury to disregard the incident.

Furthermore, there can be little doubt that a fundamental failure occurred in this
case. See State v. Franklin, 167 Kan. 706, 708-10, 208 P.2d 195 (1949) (recognizing that
under certain circumstances outbursts of weeping, fainting, applause, or other emotions
could be so prejudicial as to require a new trial). Indeed, the judicial system serves the
fundamental purpose of resolving disputes in a civilized and orderly fashion. Aggressive
physical conduct in the courtroom undermines this purpose and potentially denies a
defendant a fair trial.

The district court obviously and correctly concluded the incident with C.W.'s
father was serious and warranted corrective action—i.e., constituted a fundamental
failure in the trial.

As to C.W.'s fiancé, Kleypas concedes that "it is not clear whether the jury knew
that [C.W.'s fiancé] was the second banished individual," although he speculates the
jurors might have reached that conclusion because the fiancé did not remain in the
courtroom after he testified. But nothing in the record suggests the jurors would have
thought the banished individuals were witnesses—in fact, C.W.'s father did not testify.
Further, nothing in the record suggests the jurors heard the noise in the hallway or that

70
they would have known who was causing it or that the noise related to Kleypas' case. In
other words, Kleypas bases his argument on too much supposition and has failed to make
the record necessary to show a fundamental failure occurred in regard to the involvement
of the fiancé. See Robinson, 303 Kan. at 219 ("While K.S.A. 2014 Supp. 21-6619[b]
compels our review of all issues briefed on appeal, it does 'not require that we treat the
record other than as it is presented to us.' We thus consider this challenge based on the
status of the record presented on appeal and mindful of the fact that Robinson, as the
party alleging error, bears the burden of demonstrating error.).

We therefore conclude that there was a fundamental failure in the proceedings
with respect to the attack on Kleypas but not with respect to conduct of the victim's
fiancé.

7.4. No Injustice Occurred

We turn then to the second step of the mistrial analysis, which requires
determining whether it was possible to continue the trial without an injustice. We have
directed district courts making this assessment to consider whether "any damage caused
by the error can be or was removed or mitigated by admonition, instruction, or other
curative action" before granting a mistrial. Ward, 292 Kan. at 569-70. Here, the district
court acted on this direction by admonishing the jurors and then inquiring about whether
the jurors could proceed fairly and impartially. After this inquiry, the district court
apparently did not find "prejudicial conduct" that made "it impossible to proceed with the
trial without injustice to either the defendant or the prosecution." K.S.A. 22-3423(1)(c).

Kleypas argues the district court erred in this determination, as shown by United
States Supreme Court decisions concerning victim impact testimony. To provide context

71
for the discussion of those decisions we must begin with a case that was eventually
overruled in part—Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440
(1987), overruled in part by Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L.
Ed. 2d 720 (1991).

In Booth, the Court identified two types of victim impact testimony: (1) "the
personal characteristics of the victims and the emotional impact of the crimes on the
family," and (2) "the family members' opinions and characterizations of the crimes and
the defendant." 482 U.S. at 502. According to the Booth Court, the Eighth Amendment
prohibited the introduction of either type of evidence in capital penalty hearings. 482 U.S.
at 501-03. The Court reversed this holding in Payne, however, and held the first category
of victim impact evidence is admissible. Payne, 501 U.S. at 827. The Payne Court left
intact the prohibition against evidence of "the family members' opinions and
characterizations of the crimes and the defendant." 501 U.S. at 827; see Bosse v.
Oklahoma, No. 15-9173, 2016 WL 5888333 (U.S. October 11, 2016); Payne, 501 U.S. at
825-29.

Kleypas now characterizes the courtroom attack as tantamount to the erroneous
admission of victim impact evidence—specifically, the unconstitutional admission of
"the family members' opinions and characterizations of the crimes and the defendant."
See Booth, 482 U.S. at 502. In discussing this second category of victim impact evidence,
the Booth Court described statements from the adult children of a murdered elderly
couple. The "son, for example, stated that his parents were 'butchered like animals' and
that he 'doesn't think anyone should be able to do something like that and get away with
it.'" 482 U.S. at 508. The daughter stated "'that animals wouldn't do this'" and that "'[s]he

72
doesn't feel that the people who did this could ever be rehabilitated and she doesn't want
them to be able to do this again or put another family through this.'" 482 U.S. at 508.

In explaining why this evidence needed to be excluded, the Court stated:

"One can understand the grief and anger of the family caused by the brutal
murders in this case, and there is no doubt that jurors generally are aware of these
feelings. But the formal presentation of this information by the State can serve no other
purpose than to inflame the jury and divert it from deciding the case on the relevant
evidence concerning the crime and the defendant. As we have noted, any decision to
impose the death sentence must 'be, and appear to be, based on reason rather than caprice
or emotion.' [Citation omitted.] The admission of these emotionally charged opinions as
to what conclusions the jury should draw from the evidence clearly is inconsistent with
the reasoned decisionmaking we require in capital cases." Booth, 482 U.S. at 508-09.

Trying to match what happened in this case with the holding in Booth, Kleypas
argues that "Mr. W. did not formally testify, but he made his feelings about Mr. Kleypas
well known to the jury. He did so in the most emotionally charged way possible, and in
such a way that there was no possibility for the defense to respond." We reject this
argument for several reasons.

First, Kleypas fails to present any authority establishing that a fight constitutes a
victim impact statement. The closest he comes is a case leaving open the possibility of a
connection between outbursts by a victim's family member and impermissible victim
impact evidence. See Hardwick v. Dugger, 648 So. 2d 100 (Fla. 1994).

In Hardwick, the Florida Supreme Court stopped short of establishing the
connection Kleypas asks us to make; the court never held that anyone crossed the line of

73
impermissible victim impact evidence. 648 So. 2d at 104-05 (describing one verbal
outburst when the jury was not present, and an obscene gesture made by the victim's
cousin, toward the defendant, which was observed by the jury). The Hardwick court
removed the disruptive family members from the courtroom but did not address the issue
with the jury, and the Florida appellate court concluded the judge responded
appropriately and that no reversal was warranted. 648 So. 2d at 104-05. Little can be
drawn from this case to support Kleypas' argument.

The remainder of the cases cited by Kleypas are only relevant if we accept his
argument that a physical attack constitutes victim impact evidence. But in the Kansas
case most similar on the facts to this case, Franklin, 167 Kan. at 709, this court rejected a
similar argument as being "hardly tenable" and instead concluded that an emotional
"outcry could hardly be called 'testimony.'" Hence, we first conclude that Kleypas fails to
present caselaw supporting his argument. Cf. McCain Foods USA, Inc. v. Central
Processors, Inc., 275 Kan. 1, 15, 61 P.3d 68 (2002) ("Simply pressing a point without
pertinent authority, or without showing why it is sound despite a lack of supporting
authority, is akin to failing to brief an issue. 'Where the appellant fails to brief an issue,
that issue is waived or abandoned.'").

Second, we reject Kleypas' argument because the district court admonished the
jury to disregard the altercation—to treat it as if it never happened. Generally, we
presume juries follow a court's instructions. State v. Williams, 299 Kan. 509, 560, 324
P.3d 1078 (2014). And Kleypas must come forward in some way with evidence to
overcome that presumption. He does not do so. See State v. Warren, 302 Kan. 601, 610,
356 P.3d 396 (2015) ("Pointedly, [defense] counsel did not request an individual polling
of the jury pool to investigate the existence of any prejudice. In short, there is no

74
evidence of record indicating that the jury pool was, in fact, prejudiced by [the]
comments.").

In fact, the record suggests the opposite because the district court followed the
admonishment with questions of the jury asking whether the jurors could set aside the
incident and consider the case fairly and impartially. The jurors responded affirmatively.
See State v. Rayton, 268 Kan. 711, 722-23, 1 P.3d 854 (2000) (holding the district court
did not abuse its discretion by denying mistrial where jurors assured trial judge of
continued impartiality notwithstanding alleged failure of proceeding).

Third, cases cited by the State support the district court's actions in this case. In
State v. Dais, 22 N.C. App. 379, 206 S.E.2d 759 (1974), a rape victim's father assaulted
the defendant within view of some of the jurors. The North Carolina Court of Appeals
upheld the denial of a mistrial because the trial court had examined the jurors to
determine whether the incident would affect them, and it had removed a juror who
admitted the possibility of bias. 22 N.C. App. at 383-84. In State v. Blackwell, 238
N.W.2d 131, 139 (Iowa 1976), the Supreme Court of Iowa affirmed the denial of a
mistrial based on a hallway brawl in sight of at least some of the jurors because the
jurors, upon questioning, assured the court they could remain impartial and the court took
steps to ensure the events would not be repeated.

These cases share a common thread, recognizing that a district court faced with a
motion for mistrial "is in the best position to observe the demeanor of those present, and
to determine whether the accused has sustained substantial prejudice." State v. Chears,
231 Kan. 161, 166, 643 P.2d 154 (1982) (holding district court did not abuse discretion

75
by denying a mistrial based on defendant's claim that he had been prejudiced by child
victim's display of emotion).

Caselaw also recognizes that jurors are capable of understanding that emotions
frequently run high in criminal trials. See State v. Foster, 290 Kan. 696, 721, 233 P.3d
265 (2010) ("'That such outbursts and demonstrations often occur during the trial of
homicide cases cannot be denied and they are familiar to the bench and bar of this and
every other state.'" [quoting Franklin, 167 Kan. at 709]); see also State v. Bible, 175 Ariz.
549, 598, 858 P.2d 1152 (1993) (no error in denying mistrial after victim's father ran out
of the courtroom and yelled an obscenity directed at defendant in capital murder case
where no information was conveyed other than the father's animosity toward the
defendant, a feeling that would hardly have surprised the jury, and court excluded the
father from remainder of the trial and properly instructed jury to disregard the incident);
People v. Chatman, 38 Cal. 4th 344, 368, 42 Cal. Rptr. 3d 621, 133 P.3d 534 (2006) (no
error in denying penalty phase mistrial based on victim's mother's conduct when trial
court intervened to demand appropriate behavior and to cure any impropriety; concluding
that any reasonable juror would know that the crime had caused the victim's family
anguish); Messer v. State, 247 Ga. 316, 324-25, 276 S.E.2d 15 (1981) (no error in
denying defendant's motion for mistrial where, after a murder victim's father lunged at
defendant, father was immediately removed from the courtroom, trial court sent jury out
of courtroom as soon as disturbance began, jurors were instructed on two occasions not to
let outburst interfere with their responsibilities as jurors, and, on motion for new trial,
each juror was thoroughly questioned as to whether outburst affected his or her decision);
Gilbert v. State, 291 Ga. App. 898, 901, 663 S.E.2d 299 (2008) ("'[M]any, if not most,
trials by jury involve some degree of emotion by at least one party or the other.'").

76
 Bible and Messer, both death penalty cases, rejected arguments similar to one
Kleypas makes before us—that is, that the outcome should be different because this is a
capital case. As noted above, the heightened reliability review we employ in a death
penalty case does not supplant the legal framework or standard of review ordinarily
applied to the denial of a motion for mistrial.

Here, the district court took immediate action by removing the jurors from the
courtroom, carefully questioning the jurors regarding whether they could continue to be
impartial, and instructing them to disregard the incident and not let it influence their
deliberations. All of the jurors indicated they could conform to the court's instructions,
and none raised any concern to the contrary. Kleypas has not come forward with any
evidence suggesting the jurors failed to follow the district court's admonishment. And the
district court sat in the best position to judge the impact of the incident and its attendant
emotions on the individual jurors.

Under these circumstances, we conclude the district court did not abuse its
discretion by denying the motion for mistrial. Even under the constitutional harmless
error standard of Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705
(1967), we determine, in light of the entire record, the district court did not abuse its
discretion; we can declare beyond a reasonable doubt that the altercation in the courtroom
had no reasonable possibility of affecting the jurors' weighing of the aggravating and
mitigating circumstances and the ultimate penalty phase verdict.

One final consideration arises under the mandate of K.S.A. 2015 Supp. 21-6619,
which requires us to determine "[w]hether the sentence of death was imposed under the
influence of passion, prejudice or any other arbitrary factor." Again, nothing in the record

77
shows that the entire proceeding was tainted by the emotion of the moment when C.W.'s
father struck out at Kleypas. Nor does the record show prejudice or any other arbitrary
factor. The district court's curative actions and the jurors' responses demonstrate the jury
was able to—and did—weigh the aggravating and mitigating factors without undue
influence caused by passion, prejudice, or any other arbitrary factor.

ISSUE 8: THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION WHEN IT DENIED
KLEYPAS' MOTION FOR MISTRIAL AFTER THE PROSECUTOR BEGAN A QUESTION
WITH THE PHRASE, "IF THE DEFENDANT TESTIFIED."

Kleypas makes another claim of error based on the district court's denial of his
second motion for mistrial. This issue arises from an exchange between the prosecutor
and Dr. Erik Mitchell, a coroner, who testified about the autopsy he performed on the
body of C.W. In general, he testified to the injuries she suffered and illustrated his
testimony with photographic exhibits. During this testimony, the following exchange
occurred:

"Q. And if the defendant had told the police that he began to strangle [C.W.]
as she sat in the chair with his hands, would that explain the injuries to her neck?

"A. Oh, yes.

"Q. If the defendant testified that she began to struggle as she sat in the
chair—

"MR. EVANS [Counsel for Kleypas]: Judge, objection to the form of the
question.

"THE COURT: What specifically?

78
 "MR. EVANS: Can we approach the bench?

"THE COURT: Sure." (Emphases added.)

At the bench, counsel for Kleypas pointed out that the prosecutor had said, "If the
defendant testified," and argued that this brought attention to the fact that Kleypas would
not be testifying in this hearing.

The district court sustained the objection and asked defense counsel if he wanted
an admonition to the jury to disregard the question. Defense counsel insisted the damage
had been done and could not be cured by an admonition. The prosecutor offered to
correct himself by telling the jury he made a mistake. The district court advised the
prosecutor to rephrase the question, but defense counsel continued to insist the damage
was done and moved for a mistrial. The court disagreed, saying, "I don't view the error as
egregious. I think it was an inadvertent slip of the tongue. It shouldn't have been said but
I don't think it is egregious." The court denied the request for a mistrial.

When proceedings resumed, the prosecutor corrected himself by saying, "I said if
the defendant testified. I meant to say if the defendant gave a statement to police. You
understand that?" Mitchell indicated that he understood, and the testimony continued. At
the close of evidence, the district court instructed the jury to draw no inference from the
defendant's decision not to testify.

On appeal, Kleypas argues that the district court should have granted his motion
for a mistrial.

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 8.1. Fundamental Failure Presumed

As in the earlier mistrial issue, the district court did not affirmatively state whether
it felt there had been a fundamental failure in the proceedings. The district court seemed
to dismiss any such conclusion, stating it did not think the error was egregious. But the
court did offer to admonish the jury and, because of that, the State concedes the court
must have found a fundamental failure. While we question whether giving an
admonishment necessarily means a fundamental failure occurred (especially given the
court's comments), given the State's concession, we will proceed on the assumption the
court found a fundamental failure occurred. See State v. Beebe, 244 Kan. 48, 53, 766 P.2d
158 (1988) ("A prosecutor in a criminal case may not comment upon an accused's failure
to testify."); see also White v. Woodall, 572 U.S. ___, 134 S. Ct. 1697, 1703, 188 L. Ed.
2d 698 (the privilege against self-incrimination applies to the penalty-phase proceeding),
reh'g denied 134 S. Ct. 2835 (2014); State v. Rupert, 247 Kan. 512, 517, 802 P.2d 511
(1990) ("Comments by the prosecutor upon defendant's failure to testify violate the
constitutional right against self-incrimination.").

8.2. No Injustice Occurred

In evaluating whether an injustice occurred as the result of an improper
prosecutorial comment on a defendant's silence or failure to testify, appellate courts
consider whether the language used was manifestly intended or was of such character that
the jury would naturally and necessarily take it to be a comment on the failure of the
defendant to testify. State v. Edwards, 264 Kan. 177, 196, 955 P.2d 1276 (1998); State v.
Davis, 255 Kan. 357, 362, 874 P.2d 1156 (1994). Here, a multitude of factors suggest that

80
the comment was not manifestly intended and that jurors would not have construed the
remark to be a comment on Kleypas' failure to testify.

The prosecutor's use of the phrase, "If the defendant testified," was merely an
introductory clause rather than the focal point of the prosecutor's question to the witness.
The prosecutor uttered the phrase only once, and the entire event transpired quickly. See
Davis, 255 Kan. at 362-63 (brevity of prosecutor's improper remarks on defendant's
silence contributed to finding of harmless error). Though the phrase implicitly presumed
the existence of testimony from Kleypas, it did not directly or indirectly give rise to any
adverse inference regarding Kleypas' decision not to testify in the penalty-phase hearing.

Further, the record clearly indicates the prosecutor's question was simply a
misstatement. He phrased his first question, "[I]f the defendant had told the police,"
followed by the question, "If the defendant testified . . . ." The district court judge, who
had the opportunity to observe and hear the question, clearly believed the statement had
been a slip of the tongue. Nothing suggests we are presented with a deliberate remark
delivered with forethought. See State v. Kemble, 291 Kan. 109, 124, 238 P.3d 251 (2010)
(suggesting that deliberate remarks regarding defendant's silence prepared with
forethought, in contrast to a "spur-of-the-moment comment delivered extemporaneously,"
more likely to be flagrant and prejudicial). For good reason, the basis of the defendant's
objection was stated out of the jury's hearing. And the prosecutor corrected his
misstatement to jurors after the district court's ruling.

Independently, any potential prejudice was mitigated when the district court
instructed the jury to draw no adverse inference from Kleypas' decision not to testify. See
Davis, 255 Kan. at 363 ("find[ing] it significant that the court instructed the jury not to

81
consider the fact that the defendant did not testify" in holding prosecutor's indirect
remarks on defendant's silence were harmless). We presume the jury follows instructions,
and Kleypas points to nothing in the record to persuade us that presumption should not
apply here. See Warren, 302 Kan. at 610 (defendant's duty to establish record to support
claim); Williams, 299 Kan. at 560 (discussing presumption that jury follows instructions).
Under similar circumstances, this court has found a prosecutor's improper remarks on
defendant's silence to be harmless. See State v. Albright, 283 Kan. 418, 426-27, 153 P.3d
497 (2007); Davis, 255 Kan. at 362-63.

In light of these considerations and our review of the entire record, we conclude
the district court did not abuse its discretion when it denied Kleypas' motion for mistrial
based on the prosecutor's statement, "If the defendant testified"; we can declare beyond a
reasonable doubt that the prosecutor's statement had no reasonable possibility of affecting
the jurors' weighing of the aggravating and mitigating circumstances. In addition, we
conclude the comment was not of the nature, especially given the court's later instruction,
to introduce the "influence of passion, prejudice or any other arbitrary factor." K.S.A.
2015 Supp. 21-6619.

ISSUE 9: ANY ERROR IN THE ADMISSION OF A KBI AGENT'S TESTIMONY CONCERNING
TEST RESULTS OBTAINED BY OTHER AGENTS WAS HARMLESS.

Kleypas phrases his next issue on appeal as one involving his right to confront
witnesses, a right guaranteed by the Sixth Amendment to the United States Constitution,
and as the erroneous admission of evidence that rendered the death penalty unreliable, an
error that violated rights protected by the Eighth and Fourteenth Amendments to the
United States Constitution. Kleypas asserts the State did not provide "the district court
and defense counsel" with notice of the full range of evidence that was eventually

82
admitted during the penalty-phase proceeding. He argues that as a consequence the
evidence was inadmissible under K.S.A. 2015 Supp. 21-6617(c), which provides that
"[o]nly such evidence of aggravating circumstances as the state has made known to the
defendant prior to the sentencing proceeding shall be admissible." In addition, Kleypas
argues this challenge relates to a witness who did not testify, which was a violation of his
right to confront a witness. Kleypas further contends this evidence did not accurately
reflect the statements of the nontestifying witness, making the evidence unreliable.

We begin by examining the nature of the notice given and the evidence the jury
heard. We will then discuss whether error occurred and, finally, whether any error in the
admission of the testimony requires us to vacate Kleypas' sentence.

9.1. Notice and Testimony

The question of notice arose approximately 4 months before the penalty rehearing.
At that time, the State alerted the district court and defense counsel that it had failed to
list KBI forensic serologist Lisa Villalobos as a witness. Villalobos had testified during
the first trial about forensic serology testing she had performed as part of the
investigation surrounding C.W.'s murder. Villalobos had given an extensive explanation
of the technique she had used, called genetic marker analysis, and had explained that
genetic markers "are certain factors in everybody's blood and other body fluids that are
different from person to person." She had four known samples—one each from Kleypas,
C.W., her fiancé, and a fourth individual. Villalobos had compared those known samples
to body fluids found on C.W.'s white sock that had been tied to her leg; C.W.'s legs,
ankles, and breasts; a dark blue blanket that had been wrapped around C.W.'s head; and a

83
mattress pad taken from C.W.'s bed. According to her testimony, of the four possible
sources tested, Kleypas was the only possible contributor to each of the stains.

At a motion hearing, the State informed the court and defense counsel that it
wanted to present this testimony during the remand sentencing proceeding but had failed
to list Villalobos as a witness. The State also explained the relevance of her testimony
during the original penalty-phase proceeding:

"[Prosecutor]: . . . As the court will recall, there was saliva on the victim's body.
We felt that would go towards the aggravator.

"I'm going to notify [defense counsel] and tell him exactly what we wanted to
elicit from her, but I didn't bring her up before and I didn't know whether or not the court
wanted to just set a date so if there are issues that come up whether we'd have a date set
or do you want us to just contact you if that happens?

"THE COURT: Well, why don't you do this. If you'll advise [defense counsel]
formally of that.

"[Defense counsel], if you have an objection to that witness, please file an
objection and we'll address it."

We know nothing about any off-record discussions between the attorneys. So our
discussion of notice relates to the few sentences just quoted.

A few weeks before the penalty-phase rehearing, at another motions hearing, the
State again addressed Villalobos, and the following exchange occurred:

84
 "[Prosecutor]: Your Honor, we are withdrawing her as a witness and we talked
about . . . the DNA[,] that of the defendant[,] that was on the victim's breast, leg and
ankles and I believe the defense is okay with us having Tom Williams testify about what
Ms. Villalobos found.

"[Defense Counsel]: We are, Judge."

At the penalty-phase rehearing, the State called Tom Williams, who had been the
lead KBI field investigator on the crime, as one of its primary witnesses. As it relates to
Villalobos' prior testimony, he testified that Villalobos had processed swabs from C.W.'s
body, that the swabs taken from C.W.'s left and right ankles contained human saliva, that
the swabs from C.W.'s left and right nipples contained saliva, and that the genetic
markers in all the saliva samples "matched" or were "consistent" with Kleypas' genetic
markers. Next, the State asked Williams if there had been "DNA testing done on certain
items that were collected from [C.W.'s] apartment?" Williams responded that he believed
testing had been conducted, and the State asked him to summarize what had been
collected and the testing results. Williams told the jury that a white sock taken from
C.W.'s body was tested by the KBI and the FBI and that "only Mr. Kleypas's genetic
markers were found." He testified that the KBI "found only Kleypas's genetic markers"
on the foam mattress pad and the FBI had an insufficient sample. Williams further
testified "the only genetic markers that [were] found by both the KBI and . . . the FBI
[were] Mr. Kleypas's," which were found on a dark blue blanket wrapped around C.W.'s
head. Williams testified that other stains found in the apartment only matched C.W.'s
sample. He went on as part of this lengthy narrative answer to add that there had been an
additional stain found on a second blanket that had been wrapped around C.W. Williams
added, "[T]he KBI had a hit for semen. The FBI determined it was consistent with Mr.
Kleypas's genetic markers."

85
 During Villalobos' testimony during the guilt-phase proceeding, she had not
testified to any testing performed by the FBI or any DNA testing.

9.2. Error

Kleypas' counsel did not lodge an objection to any of this testimony. But we must
comply with the direction in K.S.A. 2015 Supp. 21-6619(b) to consider the "question of
sentence as well as any errors asserted in the review and appeal." In light of that
provision, we will consider this argument. See State v. Cheever, 295 Kan. 229, 241, 284
P.3d 1007 (2012) (Cheever I) (this court reviews errors asserted in appeal from
imposition of the death penalty; lack of a contemporaneous objection does not necessarily
bar review), vacated and remanded 571 U.S. ___, 134 S. Ct. 596, 187 L. Ed. 2d 519
(2013).

As we understand it, although Williams only referred to genetic markers and did
not say "DNA" during his testimony, Kleypas argues the testimony went into DNA
evidence. Kleypas notes that FBI agent Thomas Callaghan, not Villalobos, conducted the
DNA testing. Thus, according to Kleypas, no notice was given about this evidence and it
was inadmissible. The State argues that Kleypas acquiesced to Williams' testimony and
that his testimony was consistent with the testimony Villalobos provided during the guilt-
phase proceeding. By implication, the State assumes its notice was adequate.

Regarding the notice, the record lacks the clarity Kleypas suggests. But the record
also indicates the notice falls short of saying all the State implicitly reads into it.
Certainly, the State had given notice it would recapitulate Villalobos' testimony, which

86
we know covered her serological testing and identification of genetic markers. And the
oral notice had also ambiguously contained a reference to DNA. But contrary to the
State's suggestion—or at least implication—that reference did not clearly cover all the
testimony that came into evidence. The notice only referenced the "DNA[,] that of the
defendant[,] that was on the victim's breast, leg and ankles." But the testimony also
covered the testing of socks, blankets, and a mattress pad.

The potential for jury confusion about the nature of the evidence came into play
when the prosecutor asked Williams if there had been "DNA testing done on certain
items that were collected from [C.W.'s] apartment?" We recognize all of Williams'
answers about Villalobos' testing—in other words, all of the admitted evidence—related
to genetic markers. Nevertheless, the jury could have understood the evidence to relate to
DNA because of the prosecutor's question. And the story does not end there because
Williams testified to the FBI's testing, which was not part of Villalobos' testimony. So, at
a minimum, Williams' testimony about the FBI's testing went beyond the notice the State
had given. And, certainly, the prosecutor's questions caused confusion about the nature of
genetic markers.

Several interesting legal issues arise regarding whether the admission of this
evidence violated Kleypas' constitutional rights and regarding the impact of K.S.A. 2015
Supp. 21-6617(c) ("Any such evidence which the court deems to have probative value
may be received regardless of its admissibility under the rules of evidence, provided that
the defendant is accorded a fair opportunity to rebut any hearsay statements."). But we
need not sort through the myriad of cases that would be required for a thorough analysis
because, even if we assume constitutional error, we have no hesitation in concluding the
error was harmless.

87
 9.3. Harmless Error

Beginning with the defective notice issue, we note that typically, notice statutes
are designed to prevent surprise. See, e.g., State v. Harris, 259 Kan. 689, 709, 915 P.2d
758 (1996) (purpose of statute requiring State to provide notice of intent to seek hard-40
sentence is to make defendant aware of hard-40 prospect so as to be in a position to
devise his or her strategy); State v. Walker, 252 Kan. 117, 134, 843 P.2d 203 (1992)
(notice required by rape shield statute not only serves to protect rape victim but also
provides protection against surprise to the prosecution); State v. Bryant, 227 Kan. 385,
387, 607 P.2d 66 (1980) (purpose of the endorsement requirement is to prevent surprise
to the defendant).

Kleypas does not argue he suffered any prejudice from the lack of notice. He does
not, for example, argue he was unprepared to cross-examine Williams or other witnesses,
unprepared to present contrary evidence, or put in the position of having to alter his
theory of defense. The closest Kleypas comes to arguing harm is when he states:
"[B]ecause defense counsel was never placed on notice that the defense should be
prepared to meet testimony about the DNA evidence through cross-examination, its
admission violated Mr. Kleypas' rights under the Sixth Amendment's Confrontation
Clause." Kleypas does not explain how the lack of notice led to a Confrontation Clause
violation, and we suspect this was a way of saying Kleypas had not waived his right to
confront Callaghan as he arguably had done with Villalobos. See State v. Laturner, 289
Kan. 727, 739, 218 P.3d 23 (2009) (observing "the right of confrontation 'falls into the
class of rights that defense counsel can waive through strategic decisions"').

88
 We conclude the failure of notice had no reasonable possibility of affecting the
jurors' weighing of the aggravating and mitigating circumstances.

In arguing prejudice from the questioning and response, Kleypas focuses on points
he might have clarified had Callaghan and Villalobos testified about the nature of the
evidence—such as, that testing did not definitively establish Kleypas was the contributor
of the various stains but only that he could not be eliminated and that Villalobos' testing
was not to match DNA but rather genetic markers. Kleypas also stresses that jurors
excessively focus on scientific evidence and, consequently, any misinformation about the
DNA evidence—either from the misleading question of the prosecutor or inaccurate
answers regarding the FBI's or Villalobos' testing—caused prejudice.

Before discussing this argument, we first note that K.S.A. 2015 Supp. 21-6617(c)
indicates the district court presiding over a capital case possesses wide discretion to admit
evidence "concerning any matter that the court deems relevant to the question of
sentence," including any "evidence which the court deems to have probative
value . . . regardless of its admissibility under the rules of evidence, provided that the
defendant is accorded a fair opportunity to rebut any hearsay statements." The record
lacks the detail necessary to evaluate how the statute might apply here—a failure we do
not hold against Kleypas but merely note to explain why we will not discuss the statute's
effect.

As to the probative value of the evidence, the significance of Williams' testimony
regarding the testing must be put in perspective. The jury knew Kleypas had been found
guilty of the crimes, and they heard substantial evidence tying Kleypas to the crime,
including his confession. The main probative thrust of this testimony, as the prosecutor

89
stated when giving notice of the State's intent to call Villalobos as a witness, arose
because it established the presence of saliva on C.W.'s breasts, legs, and ankles. This
evidence was just one of many strands of evidence supporting the heinous, atrocious, and
cruel nature of C.W.'s murder. For that purpose, the significance of the testing related to
the finding of saliva on different parts of C.W.'s body. In other words, the serological
evidence's relevancy largely rested on its circumstantial proof of the nature of the acts,
not the already established fact that it was Kleypas who committed the acts.

Williams' account of evidence regarding the FBI's testing of the second blanket
did introduce scientific proof of semen. But the presence of semen added little to the
weighing of aggravating and mitigating factors. Kleypas had confessed that he had
attempted to rape C.W. but had been unable to sustain an erection. And the penalty-phase
jurors knew that the guilt-phase jury had found Kleypas guilty of attempted rape.

Further, as we evaluate how much impact Williams' testimony about the testing
would have had on the aggravating factors, we must consider the other evidence
supporting the State's theory that Kleypas committed C.W.'s murder in a heinous,
atrocious, or cruel manner. While the prosecutor mentioned saliva in the closing
argument, he primarily stressed other evidence from the coroner's findings—such as
C.W.'s widely dilated anus, which suggested she had been sodomized by some object; her
lacerated liver; seven stab wounds to her heart that nearly penetrated her body; a broken
jaw; and a wound over her right eye caused by a sharp object. The prosecutor reminded
the jury of evidence that C.W. had been beaten—not just with fists but with some type of
blunt instrument—and choked. The prosecutor also mentioned the "blitzkrieg the
defendant made when [C.W.] opened the door"; Kleypas' statement that at that point "all
hell broke loose"; the scratches and bite marks on Kleypas' arm and face, suggesting

90
C.W. fought back; a "little light cut" on C.W.'s nipple; the digital rape; her bargaining
with him to let her go; and the evidence of C.W.'s struggle to escape once she had been
tied to the chair with her own socks. The prosecutor asked the jury to

"[r]ecall the sock that he stuffed into her mouth. She couldn't breathe. She
couldn't scream and recall the blood foam in her airway. . . . She was alive, she was
injured and her body was literally breaking down around her because it couldn't handle
what was happening to her anymore.

"And [the coroner] told you that means—that is consistent with a long, slow
death."

In light of that uncontroverted evidence, even if we assume constitutional error in
the admission of Williams' testimony concerning the test results, it was harmless beyond
a reasonable doubt. Given the compelling nature of the evidence of the heinous,
atrocious, and cruel beatings, stabbings, attempted rape, sodomy, restraint, choking, and
slow death, we conclude there is no reasonable possibility that the brief mention of DNA
testing—or even the circumstantial proof that oral acts and an attempted erection
occurred—influenced the juror's assessment of the aggravating factor or its weighing of
that factor against the mitigating factors. Nor did it cause the sentence of death to be
"imposed under the influence of passion, prejudice or any other arbitrary factor." K.S.A.
2015 Supp. 21-6619(c)(1).

ISSUE 10: THE DISTRICT COURT'S FAILURE TO FOLLOW THIS COURT'S MANDATE IN
INSTRUCTING THE JURY AMOUNTED TO HARMLESS ERROR.

In Kleypas' next issue, he argues the district court erred in instructing the jury
regarding the weighing of aggravating and mitigating circumstances. He asserts this

91
court's holding in Kleypas I prevented the district court from giving this instruction. In
making this argument, he focuses on the portion of the aggravating and mitigating
circumstances instruction in which the district court, in accord with K.S.A. 21-4624(e),
instructed the jury that "[i]f you find unanimously beyond a reasonable doubt that there
are one or more aggravating circumstance(s) and that they are not outweighed by any
mitigating circumstance(s), then you shall impose a sentence of death."

To explain, it is helpful to review Kleypas' arguments about this instruction in his
first appeal, the Kleypas I court's holding, the mandate, and the district court's reasons for
not following the mandate.

10.1. Kleypas I Ruling and Other Cases

In Kleypas I, Kleypas argued K.S.A. 21-4624(e) violated the Eighth Amendment
because it allowed a death sentence if the jury found the aggravating and mitigating
factors to be in equipoise. This court agreed and held:

"K.S.A. 21-4624(e) is not unconstitutional on its face, but it impermissibly
mandates the death penalty where the jury finds that the mitigating and aggravating
circumstances are in equipoise. As such, it denies what the Eighth Amendment requires:
that the jury is to give effect to the mitigating circumstances that it finds exist." State v.
Kleypas, 272 Kan. 894, Syl. ¶ 45, 40 P.3d 139 (2001) (Kleypas I), cert. denied 537 U.S.
834 (2002), abrogated in part by Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L.
Ed. 2d 429 (2006).

92
 The Kleypas I court then discussed the appropriate remedy and concluded:

"By simply invalidating the weighing equation and construing K.S.A. 21-4624(e) to
provide that if the jury finds beyond a reasonable doubt that one or more of the
aggravating circumstances enumerated in K.S.A. 21-4625 exists and, further, that such
aggravating circumstance or circumstances outweigh any mitigating circumstance found
to exist, the defendant shall be sentenced to death, the intent of the legislature is carried
out in a constitutional manner. So construed, we hold that K.S.A. 21-4624 does not
violate the Eighth Amendment prohibition against cruel and unusual punishment. Our
holding requires that this case be remanded for the jury to reconsider imposition of the
death penalty.

"We set aside the death sentence for the reasons set out above and remand for
resentencing in accordance with K.S.A. 21-4624 as construed herein." Kleypas I, 272
Kan. at 1018.

A mandate reflecting that decision issued. However, after the mandate but before
the retrial, the United States Supreme Court decided Kansas v. Marsh, 548 U.S. 163, 173,
126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006), and abrogated the Kleypas I holding regarding
K.S.A. 21-4624.

In Marsh, the Supreme Court discussed and applied Boyde v. California, 494 U.S.
370, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990), and held: "Kansas' death penalty statute,
consistent with the Constitution, may direct imposition of the death penalty when the
State has proved beyond a reasonable doubt that mitigators do not outweigh aggravators,
including where the aggravating circumstances and mitigating circumstances are in
equipoise." Marsh, 548 U.S. at 173. In other words, the Supreme Court held that K.S.A.
21-4624 could constitutionally be applied as written. This means that an instruction

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reflecting K.S.A. 21-4624 was legally appropriate and arguably an instruction that varied
from the statute would be legally inappropriate.

Consequently, during the remand proceedings in this case, Kleypas sought an
alternative route to reach the same result he obtained in Kleypas I—i.e., a ruling that
K.S.A. 21-4624 was unconstitutional. He filed a "Motion to Strike K.S.A. 21-4624
as Unconstitutional" under §§ 9 and 18 of the Kansas Constitution Bill of Rights.
The district court denied the motion, concluding Kleypas' arguments "have been
answered by the Kleypas opinion and or the Marsh opinion on appeal to the United States
Supreme Court." Then, at the jury instructions conference, the district court proposed
using the same instruction given in the original penalty trial, consistent with K.S.A.
21-4624(e) as written. Kleypas did not object and did not discuss the mandate or the
impact of Marsh.

Appealing from those decisions, Kleypas does not renew the argument he made in
the district court regarding whether K.S.A. 21-4624 violates the Kansas Constitution Bill
of Rights. Instead, he argues the district court committed error when it did not follow the
Kleypas I mandate and, rather than alter the weighing instruction, used the same
instruction as had been used in Kleypas' first penalty proceeding. He makes two
arguments in suggesting the instruction was legally inappropriate: The district court
(1) infringed on his liberty interest by not applying the mandate and (2) violated the law
of the case doctrine and the mandate rule.

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 10.2. Liberty Interest

In support of Kleypas' liberty interest argument, he cites Hicks v. Oklahoma, 447
U.S. 343, 100 S. Ct. 2227, 65 L. Ed. 2d 175 (1980). We conclude Hicks does not support
Kleypas' position.

The Hicks defendant had been sentenced under an Oklahoma habitual offender
statute that required the jury to impose a 40-year sentence on a felon who had previously
been convicted of two other felonies. In the absence of the prior felonies, the jury would
have been instructed to sentence the Hicks defendant to not less than 10 years, with no
maximum range specified. After the defendant was sentenced, the Oklahoma Court of
Criminal Appeals held in a separate case that the habitual offender sentencing statute was
unconstitutional. Nevertheless, the Oklahoma court affirmed the Hicks defendant's
conviction and sentence, holding that he was not prejudiced by the impact of the invalid
statute because his sentence was within the range of punishment that could have been
imposed by the jury. 447 U.S. at 344-45.

On appeal, the United States Supreme Court vacated the sentence. The Supreme
Court held the defendant's interest in the exercise of the jury's discretion in imposing
punishment constituted a liberty interest protected by the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. The Supreme Court held that
the Oklahoma court's reasoning was merely "frail conjecture that a jury might have
imposed a sentence equally as harsh as that mandated by the invalid habitual offender
provision. Such an arbitrary disregard of the petitioner's right to liberty is a denial of due
process of law." 447 U.S. at 346.

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 The liberty interest recognized by the Hicks Court was the right to have the jury
determine a defendant's punishment and to be able to exercise its full discretion. Kleypas
essentially attempts to create a liberty interest in having the jury instructed in accord with
an overruled interpretation of a provision of law. But that is not the holding in Hicks.

Here, Kleypas was sentenced by the jury in accord with the statute applicable to
his offense at the time he committed it. See State v. Keel, 302 Kan. 560, 586-87, 357 P.3d
251 (2015) (penalty parameters for a crime are fixed on the date the offense was
committed), cert. denied 136 S. Ct. 865 (2016); see also Griffith v. Kentucky, 479 U.S.
314, 327, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987) ("a new rule for the conduct of
criminal prosecutions is to be applied retroactively to all cases, state or federal, pending
on direct review or not yet final"); Gaudina v. State, 278 Kan. 103, 106, 92 P.3d 574
(2004) (Kansas follows "the same rule for finality [for purposes of the retroactive
applicability of a new rule] set forth in Griffith."). And, according to the holding in
Marsh, the instruction fulfilled Kleypas' liberty interest in having the jury exercise the
full discretion allowed by law.

As a result we conclude the sentencing procedure did not deprive Kleypas of any
liberty interest.

10.3. Mandate Rule and Law of the Case

We next consider Kleypas' argument that the instruction was not legally
appropriate because it violated the mandate rule and the law of the case doctrine. These
arguments present issues of law subject to de novo review. See Gannon v. State, 303
Kan. 682, 702, 368 P.3d 1024 (2016) ("'Interpretation of an appellate court mandate and

96
the determination of whether the district court complied with it on remand are both
questions of law subject to de novo review.'" [quoting State v. Morningstar, 299 Kan.
1236, 1240-41, 329 P.3d 1093 (2014)]).

As Kleypas suggests, a district court considering a case on remand is generally
bound by the law of the case as set out in an appellate decision. State v. Collier, 263 Kan.
629, 636, 952 P.2d 1326 (1998). And the mandate in Kleypas I specifically directed the
district court to conduct a new penalty hearing "in accordance with K.S.A. 21-4624 as
construed herein." 272 Kan. at 1018. In arguing the district court was obligated to follow
this direction, Kleypas cites the mandate rule, which this court has noted "is simply a
subspecies of the venerable 'law of the case' doctrine." Collier, 263 Kan. at 636 (quoting
Federated Rural Electric Insurance Corp. v. Arkansas Electric Cooperatives, Inc., 896 F.
Supp. 912, 914 [E.D. Ark. 1995]).

Two statutes address the controlling nature of a mandate. K.S.A. 60-2106(c)
provides, in relevant part, that the mandate of this court "shall be controlling in the
conduct of any further proceedings necessary in the district court." And K.S.A. 20-108
states that a district court must execute any further proceedings "according to the
command of the appellate court made therein." Under the plain language of these statutes,
a district court is required to apply the mandate without exception. Collier, 263 Kan. at
637. The Collier court made this point emphatically, stating: "It is axiomatic that on
remand for further proceedings after a decision by an appellate court, the trial court must
proceed in accordance with the mandate and the law of the case as established on
appeal." 263 Kan. 629, Syl. ¶ 4.

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 Some jurisdictions, notably several federal circuit courts, hold that a trial court
may depart from a mandate in order to obey new law without first asking permission
from the appellate court. See 18B Wright, Miller, & Cooper, Federal Practice and
Procedure: Jurisdiction 2d § 4478.3 (2002). While this court has recognized its power to
recall, correct, amplify, or modify its own mandate, e.g., West v. Insurance Co., 105 Kan.
414, 415-16, 185 P. 12 (1919), Kansas cases have not recognized the power of a district
court to unilaterally depart from the mandate, even when a change in the law has
occurred. And neither K.S.A. 60-2106(c) nor K.S.A. 20-108 contemplate such an
exception. See State v. Prine, 297 Kan. 460, 475, 303 P.3d 662 (2013) (appellate court
cannot delete provisions or supply omissions in a statute). Hence, we conclude the district
court was duty bound to comply with the mandate as written. K.S.A. 60-2106(c); Collier,
263 Kan. 629, Syl. ¶ 4. In making this holding, we do not opine on questions not
presented to us, such as whether the parties, or even the district court acting sua sponte,
had the ability to seek a modification from this court of its mandate.

Rather, given the posture of the mandate in this case, if the district court failed to
follow our mandate in Kleypas I, it erred. See Collier, 263 Kan. at 637 (reversing and
remanding for resentencing in accordance with the express direction of the decision);
Chicago, R. I. & P. Rly. Co. v. Nichols, 133 Kan. 480, 481-82, 300 P. 1064 (1931)
(finding reversible error where trial court failed to proceed in conformity with the
appellate court's order and judgment). The parties do not dispute the existence of error,
and clearly the district court did not follow the mandate of this court.

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 10.4. Reversibility

Having found error, we next conduct a reversibility inquiry. Because this issue
raises a violation of state statutes, i.e., K.S.A. 60-2106(c) and K.S.A. 20-108, a question
arises about the level of certainty that should be applied in our harmless error inquiry. We
will not address that question, since the parties have not, but will apply the most stringent
standard since we have no hesitation in declaring the error harmless.

Typically, we have examined reversibility through a retrospective lens, focusing
on the possibility of the error "changing the jury's ultimate conclusion regarding the
weight of the aggravating and mitigating circumstances."Kleypas I, 272 Kan. at 1087-88.
Yet, if we assume Kleypas met that standard here and were to vacate his sentence and
order a new proceeding on remand, we would necessarily have to consider that the Marsh
decision settled the question of the constitutionality of K.S.A. 21-4624(e) and recognize
that, to be legally appropriate, the jury instruction given in the remand proceeding would
need to reflect the applicable law. Consequently, any remand order by this court could
only order the district court to do exactly what it already did—instruct the jury in
accordance with the weighing equation as written in K.S.A. 21-4624(e) and as applicable
at the time Kleypas committed the crime.

In that circumstance, courts usually view reversibility in light of the futility of
remanding a case following a trial court's failure to follow a mandate inconsistent with
controlling precedent. As has been noted:

"[I]t seems quite obvious . . . the judgment of the trial court will be affirmed
notwithstanding that court's departure from the appellate court's mandate on a former
appeal, since it would be futile for the appellate court to reverse the trial court because of

99
 its departure from the appellate court's ruling on a former appeal and at the same time to
direct the trial court to render the same judgment again after the appellate court has itself
corrected its error." Annot., 87 A.L.R.2d 271 § 10.

Kleypas attempts to avoid this dilemma altogether by arguing the mandate was not
rendered erroneous by the United States Supreme Court's Marsh decision because it did
not actually overrule Kleypas I. He contends this court treated the construction of the
equipoise provision in Kleypas I as only a state-law question, which therefore would not
be reviewable by the United States Supreme Court. This argument is based on a
characterization of Kleypas I as a decision to "sever" the equipoise provision from the
statute because of its unconstitutionality. See New Orleans v. Dukes, 427 U.S. 297, 302,
96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976) (concluding the unconstitutionality of an
ordinance as applied to appellee had been definitely and finally adjudicated by the Court
of Appeals, and only a state-law question remained to be decided on remand); Dorchy v.
Kansas, 264 U.S. 286, 291, 244 S. Ct. 323, 68 L. Ed. 686 (1924) (in ruling on claim
under the federal law, United States Supreme Court may decide whether unconstitutional
section of state statute is severable or may leave that determination to the state court).

Relying on New Orleans and Dorchy, Kleypas argues the effect of the "severance"
is that the Kleypas I "holding would have been insufficient to confer jurisdiction in the
Supreme Court of the United States." Therefore, according to Kleypas, Kleypas I was not
overruled by Marsh.

Kleypas' argument conflicts with the United States Supreme Court's discussion in
Marsh. Marsh asserted a severance argument in an attempt to avoid the jurisdiction of the
Supreme Court and, in doing so, discussed Kleypas I. The Supreme Court explained the
argument and its reasons for rejecting the suggestion:

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 "Marsh maintains that the Kansas Supreme Court's decision was based on the severability
of § 21-4624(e) under state law, and not the constitutionality of that provision under
federal law, the latter issue having been resolved by the Kansas Supreme Court in State v.
Kleypas, 272 Kan. 894, 40 P.3d 139 (2001) (per curiam). Marsh's argument fails.

"Kleypas, itself, rested on federal law. See [272 Kan.] at 899-903, 40 P.3d, at
166-167. In rendering its determination here, the Kansas Supreme Court observed that
Kleypas, 'held that the weighing equation in K.S.A. 21-4624(e) as written was
unconstitutional under the Eighth and Fourteenth Amendments' as applied to cases in
which aggravating evidence and mitigating evidence are equally balanced. 278 Kan., at
534, 102 P.3d, at 457. . . . As in Kleypas, the Kansas Supreme Court clearly rested its
decision here on the Eighth and Fourteenth Amendments to the United States
Constitution. We, therefore, have jurisdiction to review its decision." Kansas v. Marsh,
548 U.S. 163, 169, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006).

This passage clearly indicates the United States Supreme Court would have read
Kleypas I to confer jurisdiction had it accepted a petition for certiorari. In essence,
Kleypas' characterization of Kleypas I as a decision to sever the equipoise provision
addresses only the remedy applied in the case and not the underlying holding. See
Kleypas I, 272 Kan. 894, Syl. ¶ 45. We, therefore, reject Kleypas' attempt to avoid the
futility of remand based on an argument that Marsh does not control.

Further, there is no question the United States Supreme Court in Marsh disagreed
with the central holding of Kleypas I, which was that the equipoise provision was
unconstitutional. Under Marsh, no justification exists for judicial alteration of the statute.
In other words, the district court applied the correct law even though, procedurally, it
erred in doing so. Consequently, the jury in this case was instructed just as a jury would

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be if we were to remand for another sentencing proceeding. Given these circular
circumstances, we recognize the futility of remand and deem the district court's failure to
follow our mandate harmless. There is no reasonable possibility that the district court's
failure to seek modification of the mandate affected the outcome of the trial.

ISSUE 11: THE DISTRICT COURT DID NOT COMMIT REVERSIBLE ERROR WHEN IT
DECIDED NOT TO LIST MERCY AS ONE OF THE MITIGATORS ASSERTED BY
KLEYPAS.

Kleypas' next two arguments are based on Instruction No. 15, the district court's
instruction on mitigating circumstances. Before discussing the specifics of his arguments,
we will discuss the analytical structure that applies to appellate review of jury instruction
issues.

11.1. Analytical Structure of Jury Instruction Review

In State v. Williams, 295 Kan. 506, 286 P.3d 195 (2012), we clarified how our
review of jury instruction issues fit the structure of a typical appellate process. That
process follows three steps:

"(1) determining whether the appellate court can or should review the issue, i.e., whether
there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal;
(2) considering the merits of the claim to determine whether error occurred below; and
(3) assessing whether the error requires reversal, i.e., whether the error can be deemed
harmless." 295 Kan. at 510.

As it relates to jury instructions, the Kansas Legislature has addressed and defined
the parameters of the first step, stating:

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 "No party may assign as error the giving or failure to give an instruction,
including a lesser included crime instruction, unless the party objects thereto before the
jury retires to consider its verdict stating distinctly the matter to which the party objects
and the grounds of the objection unless the instruction or the failure to give an instruction
is clearly erroneous." K.S.A. 22-3414(3).

In other words, "[u]nder K.S.A. 22-3414(3), the failure to object to an instruction
does not prevent appellate review but requires a determination that the instruction is
clearly erroneous before relief can be granted." State v. Waggoner, 297 Kan. 94, 97, 298
P.3d 333 (2013); see State v. Cheever, 304 Kan. 866, 884, 375 P.3d 979 (2016) (Cheever
II) (recognizing application of K.S.A. 22-3414[3] in death penalty appeal regarding state-
law claim relating to penalty-phase instructions). The failure to object to an instruction
does have impact, however; it changes our reversibility inquiry at the final stage of the
analysis. See State v. Bolze-Sann, 302 Kan. 198, 209-10, 352 P.3d 511 (2015).

Thus, K.S.A. 22-3414(3) provides a short-cut through the typical three-stage
inquiry of appellate review by answering the preservation question. We have occasionally
referred to this short-cut as a "two-part test." See, e.g., State v. Robinson, 303 Kan. 11,
282, 363 P.3d 875 (2015), disapproved of on other grounds by State v. Cheever, 304 Kan.
866, 375 P.3d 979 (2016); State v. Herbel, 296 Kan. 1101, 1121, 299 P.3d 292 (2013).
Under the first prong of the test, "the reviewing court must . . . determine whether there
was any error at all. To make that determination, the appellate court must consider
whether the subject instruction was legally and factually appropriate, employing an
unlimited review of the entire record." Williams, 295 Kan. 506, Syl. ¶ 4; see State v.
Plummer, 295 Kan. 156, 160-63, 283 P.3d 202 (2012) (referring to legal appropriateness

103
and factual appropriateness as separate tests, resulting in a four-part test—preservation,
legal appropriateness, factual appropriateness, and reversibility).

Speaking in the most general terms, to be legally appropriate "an instruction must
always fairly and accurately state the applicable law." Plummer, 295 Kan. at 161. As to
factual appropriateness, courts examine whether the instruction is "supported by the
particular facts of the case at bar." 295 Kan. at 161.

If error is found, at the second step the reviewing court conducts a reversibility
inquiry. The nature of the reversibility inquiry depends both on the type of error and
whether an objection had been lodged with the district court. See Bolze-Sann, 302 Kan. at
209-10; State v. Ward, 292 Kan. 541, 562-66, 256 P.3d 801 (2011), cert. denied 132 S.
Ct. 1594 (2012). If the party requested a jury instruction not given by the district court or
has objected before the district court to an instruction that was given, we test reversibility
under the harmless error paradigm set out in Ward. Although we previously set out this
paradigm in our discussion of Issue 1, for ease of reference we repeat it here:

"[B]efore a Kansas court can declare an error harmless it must determine the error did not
affect a party's substantial rights, meaning it will not or did not affect the trial's outcome.
The degree of certainty by which the court must be persuaded that the error did not affect
the outcome of the trial will vary depending on whether the error implicates a right
guaranteed by the United States Constitution. If it does, a Kansas court must be
persuaded beyond a reasonable doubt that there was no impact on the trial's outcome, i.e.,
there is no reasonable possibility that the error contributed to the verdict. If a right
guaranteed by the United States Constitution is not implicated, a Kansas court must be
persuaded that there is no reasonable probability that the error will or did affect the
outcome of the trial." 292 Kan. at 565.

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 A different test applies if the party failed to request an instruction or to object to an
instruction that was given. In that circumstance, "the court assesses whether it is firmly
convinced that the jury would have reached a different verdict had the instruction error
not occurred. The party claiming a clearly erroneous instruction maintains the burden to
establish the degree of prejudice necessary for reversal." Williams, 295 Kan. 506, Syl.
¶ 5; see Cheever II, 304 Kan. at 884-85; Robinson, 303 Kan. at 282; Herbel, 296 Kan. at
1121.

Some modifications to these standards apply in death penalty cases. First, the
United States Supreme Court has stated a specific rule within the context of an Eighth
Amendment analysis that governs the legal appropriateness of penalty-phase jury
instructions regarding aggravating and mitigating circumstances—a question Kleypas
raises in this and the next issue. See Boyde v. California, 494 U.S. 370, 110 S. Ct. 1190,
108 L. Ed. 2d 316 (1990).

In Boyde, the defendant complained that California's pattern jury instructions
impermissibly restricted a jury's consideration of evidence relevant to mitigating factors
not related to the nature of the crime, such as the defendant's background and character.
In stating the standard to be applied to determine this issue, the Court stated:

"The claim is that the instruction is ambiguous and therefore subject to an erroneous
interpretation. We think the proper inquiry in such a case is whether there is a reasonable
likelihood that the jury has applied the challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence." 494 U.S. at 380.

This court has previously recognized this standard but has not fully discussed how
it fits within the structure of our jury instruction analysis. See State v. Carr, 300 Kan. 1,

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305, 331 P.3d 544, 734 (2014) ("We have not previously discussed in detail how that
[clearly erroneous] standard [in K.S.A. 22-3414(3)] meshes with the 'constitutional
standard' for instruction error set out in United States Supreme Court cases—whether
there is a reasonable likelihood that the jury applied the challenged instruction in a way
that violated the Constitution."), rev'd and remanded 577 U.S. ___, 136 S. Ct. 633, 193
L. Ed. 2d 535 (2016); see also State v. Gleason, 299 Kan. 1127, 1191, 329 P.3d 1102
(2014), rev'd and remanded sub nom. Kansas v. Carr, 577 U.S. ___, 136 S. Ct. 633, 193
L. Ed. 2d 535 (2016); State v. Scott, 286 Kan. 54, 96-97, 183 P.3d 801 (2008).

The United States Supreme Court provided the necessary guidance in Calderon v.
Coleman, 525 U.S. 141, 144-47, 119 S. Ct. 500, 142 L. Ed. 2d 521 (1998). In that case, a
federal circuit court of appeals conducted habeas review of a state court's death penalty
judgment. The federal court held that an ambiguous jury instruction could have been read
to mean that the state's governor had the sole power to commute a defendant's sentence,
which was not accurate. This meant the instruction violated the Eighth and Fourteenth
Amendments by giving the jury inaccurate information that diverted the jury's
consideration of mitigating evidence. After reaching that conclusion, the federal court of
appeals advanced to the reversibility inquiry and, in doing so, applied the Boyde standard
rather than the traditional harmless error test applied when a federal court conducts
habeas review of a state court judgment—i.e., the standard in Brecht v. Abrahamson,
507 U.S. 619, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993). In habeas actions related to a
state judgment, reversibility is judged by whether the error had a "'substantial and
injurious effect or influence'" on the verdict. Brecht, 507 U.S. at 637 (quoting Kotteakos
v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 90 L. Ed. 1557 [1946]).

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 The United States Supreme Court held the federal circuit court of appeals erred by
applying the Boyde test in place of the harmless error analysis mandated by Brecht. The
Court explained the Boyde test "is not a harmless-error test at all. It is, rather, the test for
determining, in the first instance, whether constitutional error occurred when the jury was
given an ambiguous instruction that it might have interpreted to prevent consideration of
constitutionally relevant evidence." Calderon, 525 U.S. at 146. The Supreme Court
contrasted the two steps of analysis by saying that Boyde did not set a standard for
measuring the "actual effect of the error on the jury's verdict," which is the role of the
harmless error test; "it merely asks whether constitutional error has occurred." 525 U.S. at
147.

The Supreme Court then explained the steps of analysis. First, the reviewing court
must determine if the possibility existed that the jury instruction could be read to suggest
that the governor alone had the power to commute the defendant's sentence—i.e.,
whether the instruction was ambiguous and whether the ambiguity opened the possibility
of misleading the jury. Second, the reviewing court would apply the Boyde test to
determine if more than a possibility existed, i.e., whether "there was a reasonable
likelihood that the jury understood the instruction as stating the Governor had that
power." Calderon, 525 U.S. at 147. Third, "[i]f the court found that possibility to be a
reasonable one, it would determine then whether the instruction, so understood, was
unconstitutional as applied to the defendant." 525 U.S. at 147. In the context of Kansas'
jury instruction rubric this analysis would fit as part of the determination of the legal
appropriateness of the standard. See Williams, 295 Kan. 506, Syl. ¶ 4.

But the inquiry would not end with the declaration of unconstitutionality because
"some constitutional errors do not entitle the defendant to relief, particularly habeas

107
relief." 525 U.S. at 147. And so, in the final step of the analysis, "[t]he court must find
that the error, in the whole context of the particular case, had a substantial and injurious
effect or influence on the jury's verdict"—i.e., it must apply the Brecht/Kotteakos
harmless error test. Calderon, 525 U.S. at 146-47.

Of course, in applying that analysis to our case, we would not use the
Brecht/Kotteakos habeas harmless error test. But we are mindful that Brecht/Kotteakos
instructs us that, when using a harmless error test, we must reach different levels of
certainty when asking whether a claimed error affected the outcome of a proceeding:

"Under the United States Supreme Court's analysis, although relief for any type
of error—i.e., constitutional, harmless, or plain—is based on the same benchmark, effect
on the outcome, the analysis for each type of error is formulated differently to set a
higher or lower threshold or level of certainty as to whether the error affected the
outcome. In other words, the standard of proof varies by the degree of certainty by which
a court must be persuaded that the error did not affect the outcome. See [United States v.
Dominguez Benitez, 542 U.S. 74, 86, 124 S. Ct. 2333, 159 L. Ed. 2d 157 (2004)] (Scalia,
J., dissenting) (the Court has created too many gradations in the 'standards of probability
relating to the assessment of whether the outcome of the trial would have been different'
if the error had not occurred); Brecht v. Abrahamson, 507 U.S. 619, 653-56, 113 S. Ct.
1710, 123 L. Ed. 2d 353, reh. denied 508 U.S. 968 (1993) (O'Connor, J., dissenting)
(harmless error requires the reviewing court to determine whether it has 'sufficient
confidence that the verdict would have remained unchanged even if the error had not
occurred'; only difference between Chapman and the Kotteakos/Fed. R. Crim. Proc. 52
standard 'is the degree of confidence' the reviewing court must have that the error did not
affect the outcome)." Ward, 292 Kan. at 563-64.

Under our caselaw, when a death penalty defendant makes a jury instruction
objection, we apply the standard of review requiring the highest level of certainty—the

108
standard of Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705
(1967). See State v. Kleypas, 272 Kan. 894, 1084, 40 P.3d 139 (2001) (Kleypas I) (stating
the harmless error test in penalty-phase trial as being whether an error had "little, if any,
likelihood" of affecting the outcome of the jury's weighing of aggravating and mitigating
circumstances and noting this language, while "somewhat different" from that used in
Chapman, "is essentially the same"), cert. denied 537 U.S. 834 (2002), abrogated in part
by Kansas v. Marsh, 548 U.S. 163; see also Ward, 292 Kan. at 558-59 (discussing
standard and the equivalency of the little, if any, likelihood standard and the no
reasonable possibility standard of Chapman).

But if a death penalty defendant fails to request or object to an instruction, we
apply the clearly erroneous standard and determine "whether [we are] firmly convinced
that the jury would have reached a different verdict had the instruction error not occurred.
The party claiming a clearly erroneous instruction maintains the burden to establish the
degree of prejudice necessary for reversal." Carr, 300 Kan. at 150-51 (quoting State v.
Williams, 295 Kan. 506, Syl. ¶¶ 4-5). Although we applied this standard to a guilt-phase
claim of error in Carr, the clearly erroneous standard applies equally to claims of
instructional error arising from the penalty phase.

11.2. Additional Factual and Legal Background

In this and the following issue, Kleypas complains about Instruction No. 15 given
by the trial court to the jury:

"Mitigating circumstances are those which in fairness may be considered as
extenuating or reducing the degree of moral culpability or blame or which justify a
sentence of less than death, even though they do not justify or excuse the offense.

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 "The appropriateness of exercising mercy can itself be a mitigating factor in
determining whether the State has proved beyond a reasonable doubt that the death
penalty should be imposed.

"The determination of what are mitigating circumstances is for you as jurors to
decide under the facts and circumstances of this case. Mitigating circumstances need to
be proved only to the satisfaction of the individual juror in that juror's sentencing
decision and need not be proved beyond a reasonable doubt. Mitigating circumstances do
not need to be found by all members of the jury in order to be considered in an individual
juror's sentencing decision.

"The defendant contends that mitigating circumstances include, but are not
limited to, the following:

"[Here the court set out a list of 16 out of 17 mitigating factors that had been
requested by Kleypas, including such factors as that he had a long history of mental
illness, maladjustment, and behavioral control problems and that the crime was
committed while he was under the influence of extreme mental or emotional
disturbance.]

"You may further consider as a mitigating circumstance any other aspect of the
defendant's character, background or record, and any other aspect of the offense which
was presented which you find may serve as a basis for imposing a sentence less than
death.

"Each of you must consider every mitigating circumstance that he or she
individually finds to exist."

This instruction followed PIK Crim. 3d 56.00-D. It deviated from the instruction
requested by Kleypas in that Kleypas' requested instruction also listed "mercy" in his

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enumerated list of possible mitigating circumstances. The State had not objected to
Kleypas' requested instruction; nevertheless, the district court decided sua sponte to
remove mercy from the enumerated list in the fourth paragraph because it was already
mentioned in the second paragraph of the instruction. See PIK Crim. 3d 56.00-D ("The
appropriateness of exercising mercy can itself be a mitigating circumstance . . . ."). The
district court also added a sentence informing the jury the defendant had no burden to
prove any mitigating circumstance.

Kleypas contends, as he did before the district court, that there is a difference
between merely mentioning mercy as a possible mitigator in the second paragraph of the
instruction and telling the jury that he was relying on mercy as a mitigator. Kleypas'
argument rests on principles we recognized in Kleypas I, when we said:

"[T]he United States Supreme Court has held that the Eighth Amendment requires two
things of a death sentence: (1) The sentencer must not have unbridled discretion in
determining the fate of the defendant, and (2) the defendant must be allowed to introduce
any relevant mitigating evidence of his character or record or circumstances of the
offense." 272 Kan. at 1036 (citing California v. Brown, 479 U.S. 538, 541, 107 S. Ct.
837, 93 L. Ed. 2d 934 [1987]).

See Mills v. Maryland, 486 U.S. 367, 374-75, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988)
(same); Lockett v. Ohio, 438 U.S. 586, 604, 606-09, 98 S. Ct. 2954, 57 L. Ed. 2d 973
(1978) (stating same rule in context of statute alleged to have limited consideration of
mitigating circumstances); see also State v. Cheever, 295 Kan. 229, 269, 284 P.3d 1007
(2012) (Cheever I) (discussing Mills, Lockett, and other caselaw), vacated and remanded
571 U.S. ___, 134 S. Ct. 596, 187 L. Ed. 2d 519 (2013).

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 Under this caselaw, we must ask: Was the jury permitted to give mercy
meaningful, mitigating effect in imposing the ultimate sentence? See Lockett, 438 U.S. at
604; see also Abdul-Kabir v. Quarterman, 550 U.S. 233, 260, 127 S. Ct. 1654, 167 L. Ed.
2d 585 (2007); Penry v. Lynaugh, 492 U.S. 302, 321-22, 109 S. Ct. 2934, 106 L. Ed. 2d
256 (1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S. Ct.
2242, 153 L. Ed. 2d 335 (2002); Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S. Ct.
869, 71 L. Ed. 2d 1 (1982).

Kleypas maintains that the structure of the mitigating circumstances instruction—
which left mercy out of the enumerated list of mitigating circumstances—barred the
jury's consideration of mercy as a mitigating circumstance. He argues that Kleypas I
suggests the listing of mercy in the instruction allows the jury to consider mercy as a
mitigating factor and, as a corollary, that failing to list it prevents its consideration. The
Kleypas I court did not affirmatively endorse the concept of mercy as a mitigator, but it
did conclude that "Kleypas fails to show how the instruction was not adequate to inform
the jury of its option to exercise mercy or how the trial court otherwise failed to permit
the jury to exercise mercy." 272 Kan. at 1036. Kleypas seems to read more into this
statement than may have been intended.

The State makes this point by relying on another statement in Kleypas I: "A
mercy instruction per se is simply not required as part of this equation by federal or state
law, nor is a specific type of mercy instruction." 272 Kan. at 1036. The State argues this
statement ends our inquiry because Kleypas cannot claim error if not entitled to an
instruction on the topic. But if a court gives an instruction on a topic, it cannot misstate
the law or mislead the jury. And Kleypas argues the instruction misled the jury.
Consequently, we examine his arguments.

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 11.3. Boyde Determination

By arguing the instruction misled the jury and, through its ambiguity, diverted the
jury's consideration of a mitigator, Kleypas raises a question that falls squarely within the
scope of the test in Boyde, 494 U.S. 370. Under that test, even if an ambiguity exists,
Kleypas must establish a reasonable likelihood that the jury applied the challenged
instruction in a way that prevented the consideration of mercy. See Calderon 525 U.S. at
146-47; Boyde, 494 U.S. at 380. Kleypas fails to convince us of a reasonable likelihood
that the jury was misled to believe that Kleypas was not asking it to consider mercy and
also fails to convince us of a reasonable likelihood that the jury would believe it could not
consider mercy. This means we find no error for the reasons we more fully explain.

First, the language of the instructions does not support Kleypas' suggestion. The
district court specifically instructed the jury that it could consider the appropriateness of
exercising mercy and that mercy could be a mitigating factor. While mercy was not
enumerated in the defendant's list, the jury was told that the defendant's list was not
exclusive. Further, the jury was instructed that the determination of what constituted a
mitigating circumstance was a decision for each individual juror to make, that mitigating
circumstances need be proved only to the satisfaction of that individual juror, and that
mitigating circumstances need not be proved beyond a reasonable doubt. The jurors were
instructed that each juror must consider every mitigating circumstance that he or she
individually found to exist. And the district court further clarified that Kleypas bore no
burden to prove any mitigating circumstance. Thus, Kleypas' argument that a juror
reading the second paragraph of the instruction "would not know that he or she could
consider mercy as a mitigating circumstance . . . when two paragraphs down . . . mercy

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was absent as an enumerated mitigating circumstance" is not supported by all the other
information the jury was given about its ability to consider mercy and mitigators. See
Boyde, 494 U.S. at 378 (complained-of language in jury charge "'may not be judged in
artificial isolation, but must be viewed in the context of the overall charge'").

In addition, the State discussed the concept of mercy in its closing argument.
While some of the State's comments regarding mercy drew objections and are the subject
of a later claim of error in this appeal, which we reject, the State's comments clearly
conveyed to the jury that it had the ability to consider whether granting mercy was
appropriate. The prosecutor told the jury, "The instructions tell you that you can consider
the appropriateness of exercising mercy and that can be a mitigating factor." Moreover,
Kleypas' counsel stressed the ability of the individual jurors to choose a life sentence and
characterized that choice as a heroic one. And in his final summation, Kleypas' counsel
responded to the State's argument that jurors were bound to follow the law and the
instructions, by arguing:

"You decide how these things are weighed. You decide how much to weigh [Kleypas']
mental illness. The law does not mandate you to weigh it one way or another. It doesn't
mandate how much weight you give it. It doesn't say that you can only give him so much
mercy. If you want to go back there and stand for life, you can, legally. There is nothing
illegal about that. You can do it. Somebody do it. Thank you."

Thus, the district judge, the prosecutor, and defense counsel told the jury it could
consider mercy. And the last comments of the defense counsel stressed the exercise of
mercy. Given those circumstances, language used in Boyde (with mercy substituted for
the circumstance at issue in that case) rings true here as well: "Even were the language of
the instruction less clear than we think, the context of the proceedings would have led

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reasonable jurors to believe that [mercy] could be considered in mitigation." 494 U.S. at
383. "[W]e think it unlikely that reasonable jurors would believe" these attorney's
arguments transformed "all of this 'favorable testimony into a virtual charade,'" especially
when the court had instructed it could be considered. 494 U.S. at 383 (quoting California
v. Brown, 479 U.S. 538, 542, 107 S. Ct. 837, 93 L. Ed. 2d 934 [1987]). And recently, the
United States Supreme Court stated: "In the last analysis, jurors will accord mercy if
they deem it appropriate, and withhold mercy if they do not, which is what our case law
is designed to achieve." Kansas v. Carr, 577 U.S. ___, 136 S. Ct. 633, 642, 193 L. Ed. 2d
535 (2016).

In other words, Kleypas fails to meet the Boyde test, which means he has failed to
establish error. Without error, the instruction obviously cannot be clearly erroneous. See
State v. Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195 (2012).

ISSUE 12: THE DISTRICT COURT DID NOT COMMIT ERROR BY INSTRUCTING THE JURY IT
COULD DETERMINE WHAT CONSTITUTED A MITIGATING CIRCUMSTANCE
UNDER THE FACTS OF THE CASE.

Next, Kleypas focuses on the first sentence of the third paragraph of the mitigating
circumstances instruction, which states: "The determination of what are mitigating
circumstances is for you as jurors to decide under the facts and circumstances of this
case." He argues this sentence misstates the law concerning mitigating circumstances and
misleads the jury. At trial, he did not raise this specific objection to the instruction. See
K.S.A. 22-3414(3) ("No party may assign as error the giving or failure to give an
instruction . . . unless the party objects thereto before the jury retires to consider its
verdict stating distinctly the matter to which the party objects and the grounds of the

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objection unless the instruction or the failure to give an instruction is clearly erroneous."
[Emphasis added.]).

In raising this issue on appeal, Kleypas renews an argument he made in Kleypas I
regarding the same language in an instruction given in his first penalty hearing. Kleypas I,
272 Kan. at 1074 (quoting an instruction that read: "The determination of what are
mitigating circumstances is for you as jurors to resolve under the facts and circumstance
of this case."). In that first proceeding, this court denied his claim of error and held the
instruction "properly and fairly stated the law and provide[d] no basis for a claimed
constitutional deprivation." 272 Kan. at 1075.

Kleypas concedes that the law of the case doctrine comes into play in our deciding
this issue. But he urges us to conclude the decision on this point in Kleypas I was clearly
erroneous because the Kleypas I court applied the wrong standard of review when it
stated:

"As we have noted previously when reviewing challenges to jury instructions,
this court is required to consider all the instructions together, read as a whole, and not to
isolate any one instruction. If the instructions properly and fairly state the law as applied
to the facts of the case and a jury could not reasonably be misled by them, the instructions
do not constitute reversible error even if they are in some way erroneous." Kleypas I, 272
Kan. at 1074.

Instead of this standard, Kleypas asserts that the Kleypas I court should have
applied the test stated in Boyde v. California, 494 U.S. 370, 380, 110 S. Ct. 1190, 108
L. Ed. 2d 316 (1990). While Kleypas has a valid point that Boyde provided the
controlling test, he does not explain how the Boyde test (that is, "whether there is a

116
reasonable likelihood that the jury has applied the challenged instruction in a way that
prevents the consideration of constitutionally relevant evidence") differs from the test
applied in Kleypas I (that is, whether the jury could "reasonably be misled" by the
instruction). Assuming there is a nuanced difference, he fails to establish that a Boyde
analysis would have led to the conclusion the court erred, especially since the Kleypas I
court based its decision on a United States Supreme Court decision that utilized the
Boyde test—Buchanan v. Angelone, 522 U.S. 269, 276, 118 S. Ct. 757, 139 L. Ed. 2d 702
(1998). Kleypas I, 272 Kan. at 1075.

In Angelone, as in Kleypas I, the United States Supreme Court focused on whether
the instruction misstated the law. The Court held:

"[T]he state may shape and structure the jury's consideration of mitigation so long as it
does not preclude the jury from giving effect to any relevant mitigating evidence.
[Citations omitted.] Our consistent concern has been that restrictions on the jury's
sentencing determination not preclude the jury from being able to give effect to
mitigating evidence. Thus, in Boyde v. California, 494 U.S. 370 (1990), we held that the
standard for determining whether jury instructions satisfy these principles was 'whether
there is a reasonable likelihood that the jury has applied the challenged instruction in a
way that prevents the consideration of constitutionally relevant evidence.' [494 U.S.] at
380. [Citations omitted.]

"But we have never gone further and held that the state must affirmatively
structure in a particular way the manner in which juries consider mitigating evidence.
And indeed, our decisions suggest that complete jury discretion is constitutionally
permissible." Angelone, 522 U.S. at 276.

Consistent with Angelone, the Kleypas I court noted that nothing in the cases
under consideration "require[s] that a jury consider all possible mitigating circumstances;

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rather, they simply preclude the State from foreclosing such consideration." Kleypas I,
272 Kan. at 1074-75; see Blystone v. Pennsylvania, 494 U.S. 299, 307, 110 S. Ct. 1078,
108 L. Ed. 2d 255 (1990) ("The requirement of individualized sentencing in capital cases
is satisfied by allowing the jury to consider all relevant mitigating evidence."). Further,
"the sentencer is free to conclude that some circumstances claimed to be mitigating are
not mitigating circumstances." Kleypas I, 272 Kan. at 1075; see State v. Cheever, 295
Kan. 229, 269, 284 P.3d 1007 (2012) (Cheever I) (Eighth Amendment does not prohibit a
capital sentencing jury from assessing the weight of mitigating evidence and finding it
wanting as a matter of fact), vacated and remanded on other grounds 571 U.S. ___, 134
S. Ct. 596, 187 L. Ed. 2d 519 (2013).

More recently, in Kansas v. Marsh, 548 U.S. 163, 175, 126 S. Ct. 2516, 165 L. Ed.
2d 429 (2006), the United States Supreme Court summarized its caselaw on this point by
noting: "In aggregate, our precedents confer upon defendants the right to present
sentencers with information relevant to the sentencing decision and oblige sentencers to
consider that information in determining the appropriate sentence. The thrust of our
mitigation jurisprudence ends here." Then, before quoting the Kansas pattern instruction
given here, the Court concluded: "Consonant with the individualized sentencing
requirement, a Kansas jury is permitted to consider any evidence relating to any
mitigating circumstance in determining the appropriate sentence for a capital defendant,
so long as that evidence is relevant." 548 U.S. at 176.

In summary, contrary to Kleypas' contention, the jury is free to "evaluate the
evidence in mitigation and find it wanting as a matter of fact." See Eddings v. Oklahoma,
455 U.S. 104, 113, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982). The jurors may not exclude
mitigating evidence from their consideration. But they may determine the weight to be

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given relevant mitigating evidence, including no weight at all, after consideration. 455
U.S. at 114-15. That is all the challenged instruction does, and it fairly and accurately
imparted that applicable law to the jury and, therefore, is legally appropriate. We find no
error in the Kleypas I court's reasoning on this point or in the district court's instruction
on remand and conclude the law of the case doctrine applies.

ISSUE 13: NEITHER THE PROSECUTOR'S CLOSING ARGUMENT REGARDING MERCY NOR
HIS CROSS-EXAMINATION OF A DEFENSE EXPERT RESULTED IN REVERSIBLE
ERROR.

Kleypas complains the prosecutor engaged in misconduct by making remarks in
closing argument that improperly equated mercy with failing to do justice and by
intentionally violating a court order not to ask Kleypas' experts whether they had brought
their notes to court. The parties argue these claims under the framework of State v. Tosh,
278 Kan. 83, 91 P.3d 1204 (2004). Recently, in State v. Sherman, 305 Kan. ___, 378 P.3d
1060 (2016), we overruled portions of Tosh and adopted a new framework for analysis.
As we have discussed, changes in the law generally apply to cases not yet final. Gaudina
v. State, 278 Kan. 103, 106, 92 P.3d 574 (2004). Yet, the parties have not had an
opportunity to argue how Sherman would apply to the facts of this case. Consequently,
we will discuss the analysis under both Tosh and Sherman. Kleypas does not establish
reversible error under either.

13.1. Tosh and Sherman

Under Tosh, appellate review of allegations of prosecutorial misconduct requires a
two-step process. First, an appellate court determines whether there was misconduct, i.e.,
whether the prosecutor's comments were outside the wide latitude allowed in discussing

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the evidence. Second, if misconduct is found, the appellate court determines whether
those comments compel reversal, i.e., whether the statements prejudiced the jury against
the defendant and denied the defendant a fair trial. Tosh, 278 Kan. at 85, 97.

In applying the second step and determining whether the defendant was denied a
fair trial, an appellate court considers three factors: (1) whether the misconduct was
gross and flagrant, (2) whether it was motivated by prosecutorial ill will, and (3) whether
the evidence was of such a direct and overwhelming nature that the misconduct would
likely have had little weight in the minds of jurors. No one factor is controlling. Tosh,
278 Kan. at 93.

The Tosh court, in using the phrase "likely [had] little weight in the minds of
jurors," observed that the phrase "echo[ed] the federal harmless error rule declared in
Chapman" and also noted that the language "sound[ed] most like the harmlessness
examination now required by K.S.A. 60-261." Tosh, 278 Kan. at 96 (citing Chapman v.
California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 [1967]). The Tosh court also
held that an appellate court must be able to say that the State can meet the harmlessness
tests of both K.S.A. 60-261 and Chapman. 278 Kan. at 97. This means that "ultimately an
appellate court must determine whether there is a reasonable possibility that the verdict
was affected by the prosecutor's misconduct." State v. Crawford, 300 Kan. 740, 746, 334
P.3d 311 (2014).

When a prosecutorial misconduct claim arises from a prosecutor's conduct during
the penalty phase of a death penalty case, we have recognized a prosecutor's "heightened
duty" to refrain from misconduct "[b]ecause of the life and death nature of the
proceedings." State v. Kleypas, 272 Kan. 894, 1084, 40 P.3d 139 (2001) (Kleypas I), cert.

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denied 537 U.S. 834 (2002), abrogated in part by Kansas v. Marsh, 548 U.S. 163, 126 S.
Ct. 2516, 165 L. Ed. 2d 429 (2006). The Kleypas I court followed this statement with a
discussion of the appropriate standard of review identifying "subtle differences" in the
standard from that applied in the guilt-phase trial and in non-death cases. 272 Kan. at
1084-88. The court discussed the challenges and difficulty of conducting a harmless error
analysis in the penalty phase, which we have previously set forth above. In addition, the
Kleypas I court determined it was necessary to analyze the cumulative effect of multiple
instances of prosecutorial misconduct. "For a cumulative error analysis, the focus is on
the net prejudicial effect the total prosecutorial misconduct had on the jury's ultimate
verdict." 272 Kan. at 1088. "The question is whether the total effect of the cumulative
misconduct found to exist, viewed in light of the record as a whole, had little, if any,
likelihood [or any reasonable possibility] of changing the jury's ultimate conclusion
regarding the weight of the aggravating and mitigating circumstances." 272 Kan. at 1088;
see State v. Cheever, 304 Kan. 866, 901-02, 375 P.3d 979 (2016) (Cheever II).

In Sherman, we jettisoned the term "prosecutorial misconduct" in favor of the term
"prosecutorial error." 305 Kan. ___, Syl. ¶ 5. In analyzing claims of prosecutorial error,
appellate courts will employ a two-step process, first determining whether error occurred
and, if it did, then determining whether prejudice resulted. 305 Kan. ___, Syl. ¶ 6. Under
the first step, we will continue to analyze whether the prosecutor's statements "fall
outside the wide latitude afforded prosecutors to conduct the State's case and attempt to
obtain a conviction in a manner that does not offend the defendant's constitutional right to
a fair trial." 305 Kan. ___, Syl. ¶ 7. At the second stage of the analysis, rather than step
through the three Tosh factors, the prejudice analysis will focus on whether the error
prejudiced the defendant's due process rights to a fair trial; if a due process violation
occurs, prejudice will be assessed by applying the Chapman constitutional error standard.

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305 Kan. ___, Syl. ¶ 8. Under that standard, "[p]rosecutorial error is harmless if the State
proves beyond a reasonable doubt that the error complained of will not or did not affect
the outcome of the trial in light of the entire record, i.e., where there is no reasonable
possibility that the error contributed to the verdict." 305 Kan. ___, Syl. ¶ 8.

We now apply these tests to Kleypas' claims of prosecutorial
misconduct/prosecutorial error.

13.2. Closing Argument

Prior to the penalty rehearing, Kleypas filed a "Motion in Limine to Prohibit
Prosecutorial Misconduct." The district court addressed the motion at a pretrial hearing.
In lieu of argument, the State assured the court that it was familiar with the Kleypas I
decision, which addressed allegations of misconduct by the prosecutor in the original
trial. Many of these allegations related to the State's arguments regarding mercy, and the
State assured the court that it intended to fully comply with the decision.

After some additional discussion, the district court granted Kleypas' motion and
said, "I really think perhaps the best thing to do is just to review the [Kleypas I] opinion."
And at the penalty hearing itself, in a conference prior to the giving of instructions and
closing arguments, the court actually reviewed the major points on prosecutorial
misconduct from the Kleypas I decision with counsel. It is clear from this discussion that
the State was making an effort to find the line between proper and improper argument on
mercy. In turn, the court was clear that "[y]ou can argue that the defendant does not
deserve [mercy] based upon his actions but you cannot indicate to the jury that they are
prohibited from granting mercy to him because he didn't show any to the victim."

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 In presenting the State's closing argument, the prosecutor reminded the jurors of
their obligation to follow the law, repeated the three aggravators, and discussed the
evidence applying to the aggravators. The prosecutor then turned to the topic of mercy:

"[Prosecutor]: I want to talk to you for a moment about mercy. The instructions
tell you that you can consider the appropriateness of exercising mercy and that can be a
mitigating factor and we talked in jury selection with all the panels about mercy and
everyone agreed that mercy—that the concept of mercy is something that is not earned. It
is something that is given but, ladies and gentlemen, that doesn't mean mercy should be
given in each and every circumstance.

"The instructions themselves tell you that you should consider whether it is
appropriate to give mercy. You should not simply just abolish justice and substitute
mercy if it is not appropriate.

"If mercy is simply handed out like a free pass each time someone does
something, then people can and will do anything without ever having to face the
consequences of their actions."

The defendant objected, and the district court sustained the objection. The
prosecutor continued:

"[Prosecutor]: Your Honor—I mean, I'm sorry, ladies and gentlemen, mercy is
something that is bestowed. It is something that is given but not earned but it should only
be given out in appropriate circumstances."

Later in his remarks, the prosecutor added: "Ladies and gentlemen, you can look
at the circumstances of [C.W.'s] death and determine whether it is appropriate to give

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mercy and that's what I'm asking you to do. To look at the circumstances of her death."
The prosecutor continued by arguing that [C.W.] died a long, slow death, reminding the
jury of the details of the crimes, the humiliation she must have suffered, and the mental
anguish caused by the uncertainty of her fate. He asked the jury to review the
photographs of her injuries and then said: "After you have thought about his actions,
after you have held those photographs, then and only then should you answer the
question is mercy appropriate."

The prosecutor again referenced doing "justice" later in his closing when he urged
the jury to "speak the words of justice, that you have examined the aggravating
circumstances, you've also examined those items claimed to be mitigating. You've given
weight to each. And that—I would ask that you find that in this case the aggravating
circumstances far outweigh any claimed mitigation."

Kleypas now argues the prosecutor misstated the law by telling the jury that mercy
and justice were mutually exclusive concepts. But that is not what the prosecutor said. He
said "mercy if it is not appropriate" is not justice. And the context of the argument
reinforces the prosecutor's message that the jury could consider mercy but that the State
was asking the jurors to also consider the evidence of the aggravating factors and weigh
whether mercy was appropriate given the evidence—a message that is consistent with the
holdings of this court.

In Kleypas I, the court considered a claim of prosecutorial misconduct in closing
argument based on the prosecutor's comments on mercy. Kleypas "claim[ed] the
prosecutor's comments denigrated the concept of mercy by urging the jury to show the
same mercy to Kleypas that he showed to the victim." Kleypas I, 272 Kan. at 1110.

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Specifically, the court considered the prosecutor's statements: "'Look at these pictures.
Do you see any leniency in these pictures[?] Do you see any mercy at all in these
pictures?'" 272 Kan. at 1110. Noting that there was some dispute over whether it is
improper for a prosecutor to argue to a sentencing jury that they should show a defendant
the same mercy that the defendant gave to the victim, the Kleypas I court said:

"In a capital case, it is important for the jury to be able to evaluate whether a
defendant is deserving of mercy. As part of the same concept, however, it is clearly
proper for a prosecutor to argue against the granting of mercy. We hold that it is proper
for the prosecutor to argue that the defendant is not deserving of the jury's mercy because
of the defendant's actions, as long as the prosecutor does not improperly state the law by
arguing to the jury that it is prohibited from granting mercy to the defendant because the
defendant showed none to the victim." 272 Kan. at 1110-11.

A prosecutor's statements indicating the jury could not consider mercy would also
stand in contrast to those considered in State v. Scott, 286 Kan. 54, 183 P.3d 801 (2008),
which had been filed prior to the rehearing in this case. The Scott court considered a
comment by the prosecution in closing to the effect that the defendant had "no earthly
right" to ask for mercy:

"'Mercy. They're asking that you have mercy on this killer. They're asking you to
exercise that act of grace which never entered the killer's mind on September 13th, 1996.
They're asking you to spare him for no reason other than that.

"'Let's talk about another term that we've heard, though. Moral culpability. This
is a term that's in your instructions as well. And, when you are considering this plea for
mercy, this plea that the State suggests he has no earthly right to ask for after his offense,
consider moral culpability also.'" 286 Kan. at 115.

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 After quoting the holding from Kleypas I, the court found these comments were
not improper:

"Despite Scott's contention, the prosecutor's comments in this case were clearly
aimed at arguing Scott did not deserve mercy. At no time did the prosecutor argue the
jury was prohibited from showing Scott mercy. Rather, the prosecutor explicitly told the
jury that granting mercy would be an 'act of grace.' Further, the prosecutor requested that
when the jurors were considering Scott's plea for mercy, they also consider moral
culpability. As a result, these comments were not improper." Scott, 286 Kan. at 116.

In context, the prosecutor's argument in this case also focused on the theme that
Kleypas did not deserve mercy because of his actions and the circumstances of the
crimes. He never argued that the jury was prohibited from considering mercy. In fact, he
specifically told them at least two times that they could consider the appropriateness of
granting mercy. There is nothing improper about such an argument. See Gentry v. State,
689 So. 2d 894, 905-06 (Ala. Crim. App. 1994) (finding no misconduct where prosecutor
argued circumstances surrounding the victim's murder justified death sentence; argument
was a proper appeal to justice), rev'd on other grounds 689 So. 2d 916 (Ala. 1996).
Contrary to Kleypas' arguments, the statement neither misstated the law nor attempted to
convince the jury they were prohibited from considering mercy.

While the prosecutor's argument was at times dramatic, "[t]he wide latitude
permitted a prosecutor in discussing the evidence during closing argument in a criminal
case includes at least limited room for rhetoric and persuasion, even for eloquence and
modest spectacle. It is not opening statement; it is not confined to a dry recitation of the
evidence presented." State v. Carr, 300 Kan. 1, 250, 331 P.3d 544 (2014), rev'd and
remanded 136 S. Ct. 633 (2016). In addition, it is clear from the record that, although

126
inclined toward the dramatic, the prosecutor was making a concerted effort to determine
where his boundaries were and stay within them. He used arguments similar to that
approved in Kleypas I, and he sought clarification from the court during his argument.

We hold the prosecutor's comments did not exceed the wide latitude allowed
prosecutors, even under the heightened standard applicable to death-sentence proceedings
as referenced in Kleypas I.

13.3. Cross-examination

Prior to trial, the State specifically requested copies of notes of Kleypas' expert
witnesses and, in particular, of Dr. Marilyn Hutchinson, the defense mitigation witness.
The defense protested that the State was not entitled to the notes. The district court
agreed, ruling that the State was not entitled to "the personal impressions and the
diagnostic notes and things of that nature" but would be entitled to empirical tests and
data.

At trial, in anticipation of the defense calling their expert witnesses, the State
requested the court order all experts to bring "their notes, testing, any material that they
have used in forming their opinions" with them to court. The defense pointed out that the
discovery statute and the court's previous order did not require the production of notes.
The prosecutor persisted, clarifying that he was not asking for discovery of those items,
rather he was asking for an order that the witnesses have the material with them. The
prosecutor pointed out that it was possible during cross-examination that he might ask to
see notes that the witnesses referred to during their testimony. The district court pointed
to its prior ruling that the State did not have a right to review personal notes of the experts

127
and ruled the State could not mention the experts' failure to bring notes: "They are not
discoverable. If they are not discoverable, then the State should not be allowed to allow
the jury to derive some negative inference from that fact."

As the prosecutor predicted, the issue of notes surfaced during the State's cross-
examination of defense psychologist Dr. Hutchinson. The State asked Hutchinson about
her review of Kleypas' medical records. On direct examination, she testified to reviewing
the records of at least seven psychologists and psychiatrists. During the cross-
examination, the State effectively cast doubt on the accuracy of Hutchinson's review of
these records. For example, the State raised the suspicion that Hutchinson had created a
nonexistent doctor by conflating the name of one of the doctors whose report she had
reviewed. She reported findings from both Dr. Zaki Ajans and from a "Dr. Zalkajan."
The State not only made the point that it appeared the two purported individuals were the
same person, it also made the point that Hutchinson's report of their findings differed.
When asked if she had reviewed a report from someone of the name Zalkajan, she said:
"That would have been something that I would have reviewed in 2002 and I don't have
those records to confirm that. That is somebody that I have notes of my review of it, yes."
The prosecutor did not mention notes during this exchange.

Later, as the State's cross-examination continued on various findings by other
doctors included in Hutchinson's review, the following exchange occurred:

"Q. [Prosecutor:] You stated that there is a Dr. Gentry that examined
[Kleypas] in either 1977 or 1991.
"A. [Hutchinson:] I—I think it was either '77 or '81.
"Q. '81. Well, do you have a report, because I don't have anything on that
individual.

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 "A. I have my notes of reading it but I don't have the original with me as
we've discussed.
"Q. So you don't have anything to prove to this jury that that person actually
exists either, do you, with you today?
"A. Not with me, no.
"Q. Okay. I can't find any report from a Dr. Gentry in '77 or '81. And so I just
don't know what to ask you about that. If you had something, I would ask you. Do you
have any notes I could look at today to assist you?
"A. Not here. Those are [in] boxes at home."

The defense made no objection to any of the references to notes. Kleypas now
argues the reference to Hutchinson's notes regarding Gentry's report undermined the
purpose of the order in limine and constituted misconduct.

The State cites the contemporaneous objection rule of K.S.A. 60-404 and cases
applying that rule and maintains Kleypas failed to preserve the issue for our review and,
as a result, has waived the issue. But, as we have discussed, this court has repeatedly held
that K.S.A. 2015 Supp. 21-6619(b) "imposes a mandatory exception in death penalty
appeals to the various statutes and rules barring consideration of unpreserved issues."
State v. Cheever, 295 Kan. 229, 241, 284 P.3d 1007 (2012) (Cheever I) (discussing
K.S.A. 21-4627[b], now codified at K.S.A. 2015 Supp. 21-6619[b]), vacated on other
grounds and remanded, 571 U.S. ___, 134 S. Ct. 596, 187 L. Ed. 2d 519 (2013).

We note that in each series of questions (one regarding "Zalkajan" and the other
Gentry) the prosecutor initially asked about reports. Hutchinson, not the prosecutor, then
raised the prospect of notes. Nevertheless, eventually the prosecutor did ask about notes
relating to Gentry. Given that Hutchinson had already told the jury about her notes and
indicated she did not have the reports with her, the prosecutor's question essentially

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suggested nothing more than what the witness had already said. In this context, we
conclude the comments did not exceed the wide latitude allowed.

The prosecutor's comments concerning Gentry's report itself are more troubling.
Gentry testified in the first penalty hearing, and the parties had discussed his report
during the proceedings following remand. There's little doubt that the prosecutor knew
who Gentry was as well as the substance of his report (and prior testimony). See State v.
Kleypas, 272 Kan. 894, 985, 1091-92, 40 P.3d 139 (2001) (Kleypas I), cert. denied 537
U.S. 834 (2002), abrogated in part by Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516,
165 L. Ed. 2d 429 (2006). Clearly, the prosecutor was taking advantage of Hutchinson's
response to further discredit her and to imply that Gentry, like Zalkajan, did not exist—a
fact the prosecutor knew to be untrue. While there may have been some question about
the date of the report, the prosecutor asked, "Well, do you have a report, because I don't
have anything on that individual." Then, the prosecutor specifically asked about notes. In
doing so, the prosecutor exceeded allowable bounds. "A prosecutor's questions must be
relevant and supported by a good-faith basis for believing the asserted matter to be true."
State v. Robinson, 303 Kan. 11, 318-19, 363 P.3d 875 (2015), disapproved of on other
grounds by State v. Cheever, 304 Kan. 866, 375 P.3d 979 (2016); see State v. Akins, 298
Kan. 592, 601-02, 315 P.3d 868 (2014) (prosecutor may not reference facts not in
evidence or express personal view); State v. Gleason, 277 Kan. 624, 640-41, 88 P.3d 218
(2004) (discussing misconduct based on violation of order in limine).

In applying the Tosh factors, we conclude the prosecutor's statement about not
having information about Gentry—in essence, an act of the prosecutor testifying during
the examination of a witness—and the implication of something that did not have a basis
in fact evidences prosecutorial ill will. The fact that the prosecutor then followed that

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comment with a reference to notes, a topic the State had been instructed to stay away
from, further indicates ill will. Plus, in light of the judge's order not to mention notes and
the prosecutor's violation of the well-known rule that a prosecutor's questions must be
supported by a good-faith basis for believing the asserted matter to be true, we conclude
the prosecutor's comments were gross and flagrant misconduct.

Turning to the harmless error test (Tosh's final prong and Sherman's prejudice
step), we conclude, however, that the prosecutor's ill will and gross and flagrant conduct
would not require reversal in light of the record as a whole. No single Tosh factor is
controlling. State v. Armstrong, 299 Kan. 405, 416, 324 P.3d 1052 (2014). And the
prejudice, if any, caused by the questions is minimal. Hutchinson's recordkeeping (and
arguably her credibility) had been undermined by the confusion over Dr. Zaki Ajans
versus "Dr. Zalkajan" and by other discrepancies the prosecutor effectively pointed out
through questioning, exchanges which involved no prosecutorial misconduct/errors. The
State's suggestion of poor notetaking regarding Gentry added little. Further, the substance
of the questioning—the exact count of Kleypas' prior mental evaluations—carried little
import. Even the State's witnesses established that Kleypas had a long history of mental
illness.

Furthermore, the impact on the mitigators makes little difference to our analysis
because, given Kleypas I's direction, we must give full credit to all the mitigators.
Kleypas I, 272 Kan. at 1087 (because an appellate court cannot know which mitigators
were considered by individual jurors, the court must assume that all of the mitigating
circumstances claimed by a defendant exist). With that in mind, the question is whether
we can say the evidence that the aggravating circumstances outweigh the mitigating

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circumstances is so overwhelming that the misconduct had no reasonable possibility of
changing the jury's verdict. See 272 Kan. at 1087.

Here, the evidence of the aggravators was essentially uncontroverted. As to the
first aggravator, the uncontroverted evidence established that Kleypas had a previous
murder conviction. With regard to the aggravator of avoiding detection and prosecution,
Kleypas told investigating officers that C.W. had recognized him. He also described his
plans to flee and his attempts to dispose of evidence. All of these circumstances suggest
Kleypas committed the murder with the motivation of concealing his crime. And an even
stronger consideration is that there was overwhelming evidence of a heinous, atrocious,
and cruel murder. C.W. clearly struggled and fought back. Forensic evidence showed she
suffered grievous and painful injuries before death. Evidence suggested Kleypas taunted
her. And he brutally stabbed her.

In light of this overwhelming evidence, we conclude beyond a reasonable doubt
that the prosecutor's exchange with Hutchinson regarding Gentry, viewed in the light of
the record as a whole, had no reasonable possibility of changing the jury's conclusion
regarding the weight of the aggravating and mitigating circumstances and, therefore, was
harmless. See State v. Adams, 292 Kan. 60, 71, 253 P.3d 5 (2011) (prosecutor's improper
references to victim were made in passing and were not emphasized, and in light of
strong evidence supporting the State's theory, "the misconduct would likely have had
little weight in the minds of the jurors").

Finding only a single instance of prosecutorial misconduct, analysis of any
cumulative effect of prosecutorial misconduct is inapplicable. We reject Kleypas' claim
that prosecutorial misconduct requires reversal.

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ISSUE 14: THE DISTRICT COURT DID NOT ERR IN ADMITTING EVIDENCE OF KLEYPAS'
1977 MISSOURI CONVICTION.

For his next issue, Kleypas maintains the district court should not have admitted
evidence of his 1977 Missouri murder conviction because the conviction was
unconstitutionally obtained.

Some additional facts provide context for Kleypas' arguments. In the Kleypas I
proceedings, the State had given notice of the aggravating circumstances on which it
would rely, including Kleypas' 1977 murder conviction. See K.S.A. 21-4625(1)
(providing as an aggravating circumstance that the defendant had been previously
convicted of felony in which defendant inflicted great bodily harm, disfigurement,
dismemberment, or death on another is an aggravating circumstance). Kleypas responded
by filing a "Motion to Bar Evidence of 1977 Conviction for Constitutional Defect."
He argued the Missouri conviction was constitutionally invalid because he had not
"knowingly, competently, intelligently waive[d] his right to trial by jury in that case and
the Court did not make an adequate inquiry into his competence to make the waiver." In a
memorandum supporting the motion, Kleypas specifically said: "This motion constitutes
the collateral attack upon the prior conviction" relied on by the State.

The district court issued a memorandum decision on the motion before the
Kleypas I trial. Relying on Custis v. United States, 511 U.S. 485, 114 S. Ct. 1732, 128 L.
Ed. 2d 517 (1994), the district court declined to allow a collateral attack by the defendant
on the Missouri conviction.

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 Following this court's Kleypas I decision and its order of remand for resentencing,
Kleypas filed a new motion attacking the Missouri conviction. The renewed motion
asked the court "to determine the admissibility of" the prior conviction and "to strike the
K.S.A. 21-4625(1) aggravator of prior conviction as evidence secured in violation of the
6th, 8th, and 14th Amendments to the United States Constitution and the correlating
Kansas Bill of Rights and pursuant to K.S.A. 21-4624(c)." The motion also asked the
court to exclude all evidence regarding the 1977 conviction because it was the product of
ineffective assistance of counsel; Kleypas was incompetent to proceed at the time of trial
and legally insane at the time of the alleged offense; Kleypas' waiver of trial by jury was
not knowing, voluntary, and intelligent; and the evidentiary basis for the conviction was
invalid.

Finally, Kleypas' motion argued the district court was obligated to determine the
validity of the Missouri conviction before allowing its use in evidence as an aggravating
factor for the Kansas capital murder case. To support this argument, Kleypas cited the
need for heightened reliability in a death penalty proceeding. He also noted that K.S.A.
21-4624(c) specifically states that "no evidence secured in violation of the constitution of
the United States or of the state of Kansas shall be admissible" in the penalty-phase
proceeding.

Kleypas attached approximately 110 pages of materials to his motion, most of
which consisted of testimony from the 1977 trial transcripts. The transcript included the
testimony of Dr. Joe Leggett who, as a young resident staff psychiatrist at Fulton State
Hospital in Missouri, had performed a psychiatric evaluation of Kleypas following the
murder and who had been called by the State of Missouri to rebut Kleypas' mental
disease defense. Kleypas argued that Leggett's testimony was essential evidence that

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contributed to his conviction because it refuted Kleypas' mental disease defense. Kleypas
also argued that Leggett's testimony would have supported Kleypas' defense if his trial
counsel would have provided Leggett with information from Kleypas' own expert's
report.

In response, the State argued that the motion amounted to a collateral attack on a
judgment from a sister state, which the district court had already ruled in the original trial
would not be allowed.

Kleypas' counsel urged the district court to recognize a distinction between a
collateral attack and the exercise of the court's duty under K.S.A. 21-4624(c) to assure
that "no evidence secured in violation of the constitution of the United States or of the
state of Kansas" was admitted in the penalty-phase proceeding. See Carr, 300 Kan. at
286-87 (under K.S.A. 21-4624[c], a district judge "continues to fill an inherent role as
'gatekeeper of constitutionally permissible evidence'"). Counsel argued several
constitutional violations had occurred during the Missouri trial, including ineffective
assistance of counsel, which raised concern about the reliability of the conviction.

The district court dismissed Kleypas' contention that the motion was not a
collateral attack, particularly noting that Kleypas had labeled it as such in his earlier
motion. It found that a collateral attack was not allowed under Custis, 511 U.S. 485, but
it also found no merit in Kleypas' arguments about the defects in the Missouri trial.

On appeal from that decision, Kleypas argues the district court erred when it
decided that evidence of Kleypas' 1977 conviction could be introduced to support the
State's aggravating factor that he had previously been convicted of a felony in which he

135
inflicted great bodily harm, disfigurement, dismemberment, or death on another. K.S.A.
21-4625(1). But Kleypas does not address the district court's decision that Custis bars his
attack on the constitutionality of the 1977 conviction. That ruling by the district court
presents a legal question, which we review de novo. Bellamy v. State, 285 Kan. 346, 354,
172 P.3d 10 (2007) (reviewing de novo the legal conclusion as to whether there has been
such a denial or infringement of the constitutional rights as to render a judgment
vulnerable to collateral attack).

Briefly summarized, in Custis the United States Supreme Court determined
whether a state conviction had been obtained (1) in violation of a criminal defendant's
right to effective assistance of counsel, and (2) pursuant to a guilty plea that was not a
knowing and intelligent waiver of the defendant's rights. The Court acknowledged the
right to collaterally attack prior convictions used for sentence enhancement when there
had been a violation of the right to have counsel appointed for those convictions—i.e.,
when the prior convictions violated rights recognized in Gideon v. Wainwright, 372 U.S.
335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). But the Court refused to extend the right of
collateral attack beyond a Gideon violation. Custis, 511 U.S. at 496.

This court adopted the rule and rationale of Custis in State v. Delacruz, 258 Kan.
129, 139, 899 P.2d 1042 (1995). And subsequently, this court has reiterated that the only
appropriate mechanisms for attacking a conviction are direct appeal from the original
conviction or a habeas corpus proceeding. State v. Chiles, 260 Kan. 75, 80-81, 917 P.2d
866 (1996). Because Kleypas does not allege a Gideon violation in his prior conviction,
Custis dictates that he may not collaterally challenge the validity of the 1977 Missouri
conviction during the sentencing phase for his current capital murder conviction.

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 We are not persuaded to the contrary by Kleypas' citation to Johnson v.
Mississippi, 486 U.S. 578, 108 S. Ct. 1981, 100 L. Ed. 2d 575 (1988). In Johnson, the
United States Supreme Court held that the defendant's Mississippi death sentence was
invalid because it rested in part on a New York felony conviction that had since been
reversed by New York courts. 486 U.S. at 583-84. Kleypas argues this holding suggests
that a death sentence based in part on a conviction that has been vacated because of
constitutional flaws must itself be vacated. Yet, Johnson says nothing about allowing
collateral attacks on out-of-state convictions. Rather, it illustrates the effect of a reversal
of a New York conviction by a New York court; it does not suggest the Mississippi court
could review a New York conviction. True, if Kleypas had achieved relief in Missouri on
direct appeal or through a habeas action, as had the Johnson defendant, the district court
could not have allowed evidence of that conviction to be admitted. But this has simply
not occurred.

We hold as a matter of law that the district court did not err in determining that
Kleypas was precluded from attacking the Missouri conviction under the rationale of
Custis and Delacruz. Furthermore, in light of Custis and Delacruz, the evidence did not
violate Kleypas' constitutional rights, and the district court discharged its duty under
K.S.A. 21-4624(c).

ISSUE 15: THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION DOES NOT
CATEGORICALLY PROHIBIT THE EXECUTION OF OFFENDERS WHO ARE
SEVERELY MENTALLY ILL AT THE TIME OF THEIR CRIME.

Kleypas argues the death penalty is a categorically disproportionate punishment
under the Eighth Amendment to the United States Constitution for offenders who, like
him, suffered from severe mental illness at the time of their crime. He presented this issue

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to the district court and asked the court to extend the reasoning of Atkins v. Virginia, 536
U.S. 304, 321, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), which determined that the
executions of "mentally retarded" criminals are cruel and unusual punishments prohibited
by the Eighth Amendment.

In Kleypas' motion, he also made several factual allegations, asserting that he

"does not have, and never has had, an intact and normal brain function. He cannot think
the way other people think; he cannot experience and interact with the world the way
other people do; he cannot conform his behavior to the norms of society or the
requirements of the law the way other people can; he cannot act in his own best interest
in a rational manner; and he cannot do anything about any of this."

At a hearing before the district court, Kleypas asked the court to extend the Atkins
rationale to the seriously mentally ill under the Eighth Amendment or its "equivalent"
under the Kansas Constitution. Defense counsel did not ever specifically refer to § 9 of
the Kansas Constitution Bill of Rights.

The district court observed that a "trial within a trial" would be necessary to
determine whether someone was mentally ill and, further, that the law allowed the
execution of the mentally ill. It denied Kleypas' motion.

On appeal, Kleypas has narrowed his claim to an Eighth Amendment categorical
proportionality challenge, proposing a categorical rule prohibiting the death penalty for
offenders who were severely mentally ill at the time of their crimes. In other words, his
proposal focuses on the characteristics of the offender at the time of the offense. See State
v. Williams, 298 Kan. 1075, 1086, 319 P.3d 528 (2014) (recognizing that the United

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States Supreme Court identifies three subcategories of categorical proportionality
challenges that are distinguished based on whether the focus is on: [1] the nature of the
offense, [2] the characteristics of the offender, or [3] a particular type of sentence as it
applies to an entire class of offenders who have committed a range of crimes).

The State argues Kleypas has failed to define a category for analysis and that he
fails to meet the two-part test regarding categorical proportionality attacks based on the
characteristics of the offender. We next address these arguments.

15.1. Preliminary Arguments Regarding Definition of Category

The State, in arguing that Kleypas has failed to define his category of severely
mentally ill, also asserts the category is incapable of definition. However, both Kleypas'
motion before the district court and his argument on appeal point to a definition supplied
by American Bar Association Recommendation Number 122A, adopted by the House of
Delegates on August 7-8, 2006. Recommendation and Report on the Death Penalty and
Persons with Mental Disabilities, 30 Mental & Physical Disability L. Rep. 668 (2006)
(hereinafter ABA Recommendation Number 122A). In relevant part, the recommendation
provides:

"Defendants should not be executed or sentenced to death if, at the time of the
offense, they had a severe mental disorder or disability that significantly impaired their
capacity (a) to appreciate the nature, consequences or wrongfulness of their conduct,
(b) to exercise rational judgment in relation to conduct, or (c) to conform their conduct to
the requirements of the law. A disorder manifested primarily by repeated criminal
conduct or attributable solely to the acute effects of voluntary use of alcohol or other
drugs does not, standing alone, constitute a mental disorder or disability for purposes of
this provision." ABA Recommendation Number 122A at 668.

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 This recommendation had previously been adopted by the American Psychiatric
Association, the American Psychological Association, and the National Alliance of the
Mentally Ill. ABA Recommendation Number 122A.

The comments to the recommendation observe that the definition contains two
predicates for excluding a mentally ill offender from capital punishment. First is the
requirement that the offender have a "severe" disorder,

"which is meant to signify a disorder that is roughly equivalent to disorders that mental
health professionals would consider the most serious [American Psychiatric Association,
Diagnostic and Statistical Manual, 25-26 (text rev. 4th ed. 2000)] 'Axis I diagnoses.'
These disorders include schizophrenia and other psychotic disorders, mania, major
depressive disorder, and dissociative disorders—with schizophrenia being by far the most
common disorder seen in capital defendants. In their acute state, all of these disorders are
typically associated with delusions (fixed, clearly false beliefs), hallucinations (clearly
erroneous perceptions of reality), extremely disorganized thinking, or very significant
disruption of consciousness, memory and perception of the environment." ABA
Recommendation 122A at 670.

The second predicate in the definition is the "significant impairment" requirement,
which is set out in three specific types. These subtypes, in turn, essentially encompass
those conditions or characteristics which the United States Supreme Court relied on to
find the mentally retarded and juveniles less culpable for their crimes, i.e., the offender
lacked the ability to appreciate the nature, consequences, or wrongfulness of his or her
conduct; to exercise rational judgment in relation to conduct; or to conform his or her
conduct to the requirements of the law. See Roper v. Simmons, 543 U.S. 551, 125 S. Ct.
1183, 161 L. Ed. 2d 1 (2005) (juveniles); Atkins, 536 U.S. 304 ("mentally retarded").

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 We conclude these standards set out a specific enough category to allow
consideration of Kleypas' arguments. We also conclude that the State's additional
argument—that Kleypas' failure to define the category means he has failed to show
standing to raise this issue—is countered by extensive testimony in the record by the
various mental health professionals who examined him. Several of these experts
diagnosed Kleypas with schizophrenia and dissociative disorders.

15.2. Kleypas Fails to Meet the Categorical Test

Next the State argues that Kleypas' categorical challenge fails to satisfy scrutiny
under the applicable two-part test for challenges based on the characteristics of the
offender:

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

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

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 15.2(a). No National Consensus

The United States Supreme Court has placed considerable reliance on legislative
action as evidence of society's standard of decency. For example, in Atkins, when called
upon to reconsider its previous decision in Penry v. Lynaugh, 492 U.S. 302, 335, 109 S.
Ct. 2934, 106 L. Ed. 2d 256 (1989), which held the Eighth Amendment permitted the
execution of the "mentally retarded," the Court observed:

"'The [Eighth] Amendment must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society.' [Trop v. Dulles, 356 U.S. 86, 100-
101, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958)].

"Proportionality review under those evolving standards should be informed by
'"objective factors to the maximum possible extent"' [citation omitted]. We have
pinpointed that the 'clearest and most reliable objective evidence of contemporary values
is the legislation enacted by the country's legislatures.' [Citation omitted.]" Atkins, 536
U.S. at 311-12.

The Court recounted that only two state statutes prohibited executions of the
"mentally retarded" at the time Penry was decided. Subsequently, 18 states had adopted
legislation prohibiting such executions. But the Court also noted that the number
adopting such measures was not as significant as the trend—i.e., the consistency of the
change in direction which it demonstrated. This trend, in the Court's view, meant that
societal views had evolved to view the "mentally retarded" offender as categorically less
culpable than the average criminal. Atkins, 536 U.S. at 313-16. The Court also noted that
even in the states that allowed the execution of "mentally retarded" offenders, the practice
had become uncommon. All this demonstrated a national consensus against the practice.
Likewise, in Roper, the Court noted similar numbers of states prohibiting the juvenile

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death penalty and the infrequency of the actual practice even in states permitting it. 543
U.S. at 564-67.

In contrast, as Kleypas observes, only one state, Connecticut, has ever passed
legislation expressly prohibiting the death penalty for individuals who were mentally ill
at the time of the crime. The legislation (Conn. Stat. § 53a-46a[h][3] [2009]) exempted a
capital defendant from execution if his or her "mental capacity was significantly impaired
or [his or her] ability to conform [his or her] conduct to the requirements of law was
significantly impaired but not so impaired in either case as to constitute a defense to
prosecution." However, Connecticut abolished the death penalty altogether for future
offenses in 2012.

Other states have attempted to pass legislation and failed. Kleypas cites relatively
recent bills introduced in the legislatures of Kentucky, North Carolina, Indiana, and
Tennessee as evidence that the states are moving in the direction of barring the execution
of those who were mentally ill at the time of their offense. However, none of these states
actually passed legislation and all of them still retain the death penalty.

Legal commentators have acknowledged the absence of any legislative trend
toward abolishing the death penalty for this category of offenders:

"In both Atkins and Roper, the Court stressed the trend of statutory change in the
direction of abolishing the death penalty for those with mental retardation or who were
juveniles at the time of the offense. This echoed the Court's similar reliance on legislative
action in its earlier determinations that the death penalty could not be imposed for such
offenses as the rape of an adult woman where death of the victim did not result, or felony
murder where the defendant himself neither took the life of the victim nor intended that a

143
 homicide occur. And the Court followed this approach in its recent decision in [Kennedy
v. Louisiana, 554 U.S. 407, 423-25, 128 S. Ct. 2641, 171 L. Ed. 2d 525, concluding that
the death penalty could not be available for the rape of a child whose death did not occur,
noting that forty-four of the fifty states do not impose capital punishment for this offense.
There simply is no comparable legislative trend toward abolishing the death penalty for
those with severe mental illness." (Emphasis added.) Winick, The Supreme Court's
Evolving Death Penalty Jurisprudence: Severe Mental Illness as the Next Frontier, 50
B.C. L. Rev. 785, 790-91 (2009).

This lack of legislative direction has also led courts who have considered the issue
to decline to extend the Atkins and Roper rationale to the mentally ill. See Mays v.
Stephens, 757 F.3d 211, 219 (5th Cir. 2014) (noting that no Supreme Court case has
"created a rule of constitutional law making the execution of mentally ill persons
unconstitutional"); Franklin v. Bradshaw, 695 F.3d 439, 455 (6th Cir. 2012) (noting
absence of caselaw extending Atkins to prohibit the execution of those with mental
illnesses); In re Neville, 440 F.3d 220, 221 (5th Cir. 2006) (rejecting claim that Atkins
and Roper created a new rule making the execution of mentally ill persons
unconstitutional and holding that a defendant's mental illness does not prevent imposition
of a capital sentence); People v. Castaneda, 51 Cal. 4th 1292, 1345, 254 P.3d 249 (2011)
(rejecting claim that execution of defendant with an antisocial personality disorder
constitutionally prohibited); Simmons v. State, 105 So. 3d 475, 511 (Fla. 2012)
(recognizing the Florida Supreme Court has "repeatedly rejected" claim that mental
disorders constitutionally bar defendant's execution); Lewis v. State, 279 Ga. 756, 764,
620 S.E.2d 778 (2005) (refusing to extend Atkins rationale to a defendant who is
competent but mentally ill); State v. Dunlap, 155 Idaho 345, 380, 313 P.3d 1 (2013) ("It
appears that every court that has considered this issue ha[s] refused to extend Atkins and
hold that the Eighth Amendment categorically prohibits execution of the mentally ill."),
cert. denied 135 S. Ct. 355 (2014); Matheney v. State, 833 N.E.2d 454, 458 (Ind. 2005)

144
(Supreme Court has not held that mentally ill persons are not subject to the death
penalty); Dunlap v. Com., 435 S.W.3d 537, 616 (Ky. 2013) ("We are not prepared to hold
that mentally ill persons are categorically ineligible for the death penalty."), cert. denied
Dunlap v. Kentucky, 135 S. Ct. 87 (2014); State v. Johnson, 207 S.W.3d 24, 51 (Mo.
2006) ("federal and state courts have refused to extend Atkins to mental illness
situations"); State v. Mammone, 139 Ohio St. 3d 467, 504, 13 N.E.3d 1051 (2014)
(Eighth Amendment does not bar the execution of the seriously mentally ill and
defendant failed to show he suffered from a "serious mental illness"), cert. denied 135
S. Ct. 959 (2015); Malone v. State, 2013 OK CR 1, ¶ 67, 293 P.3d 198 ("We expressly
reject that the Atkins rule or rationale applies to the mentally ill."), cert. denied 134 S. Ct.
172 (2013); Pike v. State, Case No. E2009–00016–CCA–R3–PD, 2011 WL 1544207, at
*67-68 (Tenn. Crim. App. 2011) (unpublished opinion) (no consensus in state legislation
supporting a categorical exclusion for the mentally ill); Mays v. State, 318 S.W.3d 368,
379 (Tex. Crim. 2010) (noting absence of authority to extend Atkins rationale to the
mentally ill and absence of trend among state legislatures to "categorically prohibit the
imposition of capital punishment" for this category of offenders); see also United States
v. Akbar, 74 M.J. 364, 406 (C.A.A.F. 2015) (courts have uniformly determined that there
is no constitutional impediment to imposing a capital sentence where a criminal
defendant suffers from a mental illness).

Kleypas cites other "evidence" of a growing trend supporting his position,
consisting of policy statements of national mental health organizations and a 2003 Gallup
poll. Nonetheless, he fails to demonstrate the kind of legislative consensus on which the
Supreme Court has relied.

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 15.2(b). The Court's Exercise of Independent Judgment

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

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

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

In support of his argument, Kleypas simply states "[t]he culpability of the severely
mentally ill is diminished in the same manner as juveniles and the mentally retarded." He
cites language quoted from the ABA recommendation report to illustrate that some severe
disorders result in hallucinations or delusions. But the ABA report itself recognizes that
diagnosis alone is not a sensible basis for the exemption and, consequently, a

146
case-by-case determination will be required. The report recognizes that Atkins left the
definition of "mental retardation" to the states. See 536 U.S. at 317. The report continues:

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

In contrast, in Roper, the United States Supreme Court noted that "[t]he
differences between juvenile and adult offenders are too marked and well understood to
risk allowing a youthful person to receive the death penalty despite insufficient
culpability." 543 U.S. at 572-73. And in Atkins, the Court noted that clinical definitions
of mental retardation shared common features which ultimately bore on the determination
of culpability. See 536 U.S. at 317-18.

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

147
less culpable and less likely to be deterred by the death penalty, often such illnesses can
be treated and may not manifest in criminal behavior.

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

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

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

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ISSUE 16: KLEYPAS FAILS TO ESTABLISH THE BASIS FOR PROPORTIONALITY REVIEW
UNDER § 9 OF THE KANSAS CONSTITUTION BILL OF RIGHTS.

Kleypas also argues that this court should undertake an independent categorical
proportionality review of his death sentence under § 9 of the Kansas Constitution Bill of
Rights, which prohibits the State from inflicting "cruel or unusual punishment." Kleypas
did not raise this issue before the district court.

Kleypas argues that State v. Gomez, 290 Kan. 858, 235 P.3d 1203 (2010),
authorized a § 9 proportionality review of a noncapital sentence and that this court left
the door open for such a review of the death sentence of Gavin Scott. State v. Scott,
286 Kan. 54, 94, 183 P.3d 801 (2008) ("Our decision today should not be construed to
preclude future interpretation of § 9 when considering the proportionality of a criminal
sentence."). He also urges this court to exert review over his sentence pursuant to K.S.A.
2015 Supp. 21-6619(b), which requires this court to consider the question of sentence as
well as any errors asserted in a death penalty appeal. Finally, he argues that an
independent proportionality review of his death sentence is justified by the difference in
language between the Eighth Amendment (prohibiting "cruel and unusual" punishments)
and § 9 (prohibiting "cruel or unusual" punishments).

Kleypas' challenge is unavailing. In Gomez, as Kleypas argues, this court
recognized the continued viability of proportionality challenges. But this court also
recognized that in Kansas those challenges had been limited to claims that a term-of-
years sentence was disproportionate. See 290 Kan. at 867-68; State v. Freeman, 223 Kan.
362, 367, 574 P.2d 950 (1978) (setting out proportionality test). We repeated that
statement in Mossman, 294 Kan. at 909 (explaining Freeman test will not apply where
challenge goes to method of punishment, rather than length of sentence).

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 Consistent with these cases, in Kleypas I, this court specifically rejected the
suggestion that it should undertake a "proportionality" review of a death sentence. State
v. Kleypas, 272 Kan. 894, 1033, 40 P.3d 139 (2001) (Kleypas I) ("We hold that neither
the Kansas Constitution, the Kansas death penalty statutes, nor Kansas case law requires
that a defendant's sentence be subjected to a proportionality review which compares the
defendant's sentence with those imposed on other Kansas defendants for the same or
similar crimes."), cert. denied 537 U.S. 834 (2002), abrogated in part by Kansas v.
Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006). The Kleypas I court
also noted that in an appeal brought by Clifford Scott, State v. Scott, 265 Kan. 1, 961 P.2d
667 (1998), this court also had "severely limited" the application of the Freeman factors
"to instances where the length of a sentence was challenged." Kleypas I, 272 Kan. at
1032-33.

Subsequent to the Kleypas I decision, another defendant, Gavin Scott, argued that
the court should interpret § 9 to find the weighing equation in K.S.A. 21-4624(e)
unconstitutional despite the United States Supreme Court's decision that the statute does
not violate the Eighth Amendment. See Scott, 286 Kan. at 87-99 (citing Kansas v. Marsh,
548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 [2006]). In considering this argument
the Scott court concluded:

"[Scott's] argument does not go to the proportionality of the sentence imposed, but to the
process in determining against whom the death penalty should be imposed. Regardless of
whether the set of punishments encompassed by the term 'cruel or unusual' is larger than
the set which could be described as both 'cruel and unusual,' the process itself used to
arrive at the decision is not implicated. Scott's argument must fail.

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 "Our decision today should not be construed to preclude future interpretation of
§ 9 when considering the proportionality of a criminal sentence. In such a circumstance,
we are free to further consider the historical record and decide whether § 9 should be
interpreted in a manner which deviates from that given to the Eighth Amendment by the
United States Supreme Court." Scott, 286 Kan. at 94.

In context, the statement on which Kleypas relies—"[o]ur decision today should
not be construed to preclude future interpretation of § 9"—was nothing more than a
reservation of this court's right to interpret the Kansas Constitution independently of the
Eighth Amendment. It does not mean the long-standing caselaw limiting proportionality
review to term-of-years sentences should be set aside.

Kleypas also argues that the difference in language between the Eighth
Amendment and § 9 justifies a separate proportionality review. But this court has
consistently declined to interpret § 9 more broadly than the Eighth Amendment. Scott,
286 Kan. at 93; Kleypas I, 272 Kan. at 1051; State v. Spain, 269 Kan. 54, 59-60, 4 P.3d
621 (2000); Scott, 265 Kan. at 5. Kleypas supplies no reason why we should now.

Further, even if the difference between the two provisions supplied a reason to
undertake an independent analysis, it does not supply the analytical framework of such
an analysis, and Kleypas does not suggest one. In fact, counterintuitively, he simply
incorporates his Eighth Amendment arguments. And a test is not set out in our caselaw.
As we have frequently noted, while the Freeman test includes aspects of a categorical
challenge, other aspects are fact specific. "Because of the factual inquiries involved,
we . . . have refused to consider an argument that a sentence is cruel and unusual for the
first time on appeal." Gomez, 290 Kan. at 867-68. Kleypas has not presented a sufficient
record for application of the factors. See Robinson, 303 Kan. at 219 ("While K.S.A. 2014

151
Supp. 21-6619[b] compels our review of all issues briefed on appeal, it does 'not require
that we treat the record other than as it is presented to us.' . . . We thus consider this
challenge based on the status of the record presented on appeal and mindful of the fact
that Robinson, as the party alleging error, bears the burden of demonstrating error.").

In summary, while Kleypas argues the court has opened the door to a § 9
categorical proportionality challenge to his death sentence, we have not developed an
analytical framework for such a challenge, and Kleypas does not suggest one. And he has
not submitted a sufficient argument under Freeman. His argument under § 9 fails.

ISSUE 17: THE DISTRICT COURT DID NOT ERR IN ADMITTING REBUTTAL TESTIMONY OF
THE STATE'S EXPERT.

Kleypas next complains about the admission of Logan's rebuttal testimony.
Kleypas first argues the testimony, which was aimed at countering the testimony of
Hutchinson, was improper rebuttal testimony and was a ruse designed to convince the
jury that Kleypas' actions were clearly premeditated and intentionally carried out.
Second, he argues a portion of the testimony in which Logan talked about the availability
of drugs and alcohol in prison constituted hearsay and was inflammatory and prejudicial.

Kleypas did not object to this testimony during the hearing. Nevertheless, we will
consider the issue under K.S.A. 2015 Supp. 21-6619(b) (The court "shall consider . . .
any errors asserted in the review and appeal.").

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 17.1. Proper Rebuttal

We first consider whether Logan's testimony fell within the boundaries of proper
rebuttal evidence. We have determined that "[t]he use and extent of rebuttal and
surrebuttal rests in the sound discretion of the district judge, and his or her ruling will not
be reversed unless the discretion has been abused to a party's prejudice." State v. Carr,
300 Kan. 1, 297, 331 P.3d 544 (2014), rev'd and remanded 136 S. Ct. 633 (2016). K.S.A.
2015 Supp. 21-6617(c) bestows the district court presiding over a capital case with wide
discretion to admit evidence "concerning any matter that the court deems relevant to the
question of sentence," including any "evidence which the court deems to have probative
value . . . regardless of its admissibility under the rules of evidence, provided that the
defendant is accorded a fair opportunity to rebut any hearsay statements."

With this discretion in mind, we consider the generally recognized parameters for
rebuttal testimony:

"'Rebuttal evidence is that which contradicts evidence introduced by an opposing
party. It may tend to corroborate evidence of a party who first presented evidence on the
particular issue, or it may refute or deny some affirmative fact which an opposing party
has attempted to prove. It may be used to explain, repel, counteract, or disprove
testimony or facts introduced by or on behalf of the adverse party. Such evidence
includes not only testimony which contradicts witnesses on the opposite side, but also
corroborates previous testimony.' State v. Willis, 240 Kan. 580, 583, 731 P.2d 287
(1987)." State v. Sitlington, 291 Kan. 458, 464, 241 P.3d 1003 (2010).

Here, Hutchinson concluded that Kleypas' mental state at the time of the crime
was severely deteriorated. Among other things, Hutchinson testified that Kleypas had a
global assessment of functioning (GAF) of 1 at the time of the crime, and "there was

153
something very disturbed in his processing at that time." Kleypas relied on this testimony
to support his mitigator that his mental status at the time of the crime was severely
deteriorated.

Logan directly responded to Hutchinson's conclusions and specifically disagreed
with her GAF scoring. While Hutchinson based it on her assessment that Kleypas was a
danger to himself and others, Logan disputed whether Kleypas met the scoring criteria for
a score of 1. Logan told the jury that Kleypas' actions on the night of the crime
demonstrated he had been functioning at a much higher level than a score of 1 would
suggest. In Logan's opinion, Kleypas acted purposefully, in an organized manner, and
was in control of his behavior. These circumstances were certainly probative of
premeditation and intent, but these are guilt, not penalty, phase issues that have little
bearing on the weighing of aggravating and mitigating factors. In addition, these
circumstances directly rebutted Hutchinson's opinion that Kleypas had a severely
deteriorated mental state at the time of the crime. And because one of the mitigators on
which Kleypas relied was his compromised mental state, Logan's testimony was relevant,
probative, and directly responsive to Hutchinson's testimony.

Logan also testified that much of Kleypas' model behavior while he was in prison
contradicted Hutchinson's conclusions that he was suffering from various types of mental
illness. The fact that this testimony also tended to establish that Kleypas premeditated
C.W.'s murder and intentionally carried out the crime does not negate the fact it was
directly responsive to Hutchinson's picture of a delusional and decompensating
individual.

154
 We conclude the district court did not abuse its discretion in allowing this proper
rebuttal testimony.

17.2. Not Unduly Inflammatory

Kleypas also complains of a particular response by Logan on cross-examination.
While Kleypas' counsel was attempting to have Logan validate the defense theory that
Kleypas did well in prison, in part because of the absence of drugs and alcohol, the
following exchange occurred:

"Q. But the point is, Doctor, the stressors that troubled him on the street
aren't present in prison to a large extent.

"A. Can you be specific?

"Q. Well, there is no alcohol in prison. I hope there is not. I don't think there
is.

"A. Oh, boy, is there alcohol in prison.

"Q. There is [sic] no drugs.

"A. There is [sic] plenty of drugs in prison, including, you know, officers
who are let go regularly for smuggling into inmates, you know, it is not a pristine
environment.

"Q. Then why does he do so well there?

155
 "A. It is very structured, I think, and he's given a job and he does not have to
worry about anything financial. He doesn't have to worry about anything sexual. He
doesn't have to worry about being rejected. In fact, he gets a lot of praise for working the
jobs that he does. He gets a lot of positive reinforcement."

Kleypas argues that Logan's testimony that drugs and alcohol are available in
prison was highly inflammatory and was impermissible hearsay. But the remarks were in
direct response to counsel's question. A party may not invite error and then complain of
that error on appeal. State v. Robinson, 303 Kan. 11, 152-53, 363 P.3d 875 (2015)
(heightened reliability standard does not bar application of invited error doctrine in death
penalty appeals). Kleypas cannot now complain that he did not get the answer he wanted
and that the district court should have saved him sua sponte from the one he did not want.
Moreover, Logan's testimony ultimately supported defense counsel's efforts to show
Kleypas did well in prison.

The record also does not support Kleypas' allegation that Logan's remarks about
the availability of drugs and alcohol were hearsay that he had no opportunity to rebut and
therefore were inadmissible. See K.S.A. 2015 Supp. 21-6617(c). Logan testified he had
extensive experience working in and around prisons. There was no indication his remarks
were based upon anything but personal experience.

Logan's testimony fell within both the boundaries of proper rebuttal and the
boundaries of K.S.A. 2015 Supp. 21-6617(c). The district court did not abuse its
discretion in admitting the testimony.

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ISSUE 18: THE HEINOUS, ATROCIOUS, OR CRUEL AGGRAVATING FACTOR IS NOT
UNCONSTITUTIONALLY VAGUE AND OVERBROAD.

In this next issue, Kleypas argues that the heinous, atrocious, or cruel aggravating
factor on which the State relied to secure the death penalty is unconstitutionally vague
and overbroad in violation of the Eighth and Fourteenth Amendments to the United
States Constitution. This court considered the same argument in Kleypas I. Kleypas
attempts to avoid the law of the case doctrine by arguing the Kleypas I decision was
clearly erroneous. We disagree.

Kleypas presents nothing new to persuade us the Kleypas I analysis failed to
consider any controlling caselaw or that it misapplied any of the relevant cases. And, if
anything, our subsequent caselaw supports the Kleypas I analysis. See Carr, 300 Kan. at
283 (especially heinous, atrocious, or cruel statutory aggravator adequately channels
jurors' discretion).

Nothing in the arguments presented by Kleypas in his current appeal requires our
review or reconsideration of this court's conclusions in Kleypas I.

ISSUE 19: THE DISTRICT COURT DID NOT ERR IN EMPANELING A NEW JURY ON
REMAND.

Kleypas argues that the district court was bound by K.S.A. 21-4624(b) to attempt
to reassemble the original trial jury to hear his penalty-phase retrial on remand and
therefore lacked statutory authority to empanel a second jury.

Typically, when we conduct our de novo review of statutes, we begin with the
most fundamental rule of statutory construction: The intent of the legislature governs.

157
State v. Williams, 298 Kan. 1075, 1079, 319 P.3d 528 (2014). Reliance on the plain and
unambiguous language of a statute is "the best and only safe rule for determining the
intent of the creators of a written law." Merryfield v. Sullivan, 301 Kan. 397, 399, 343
P.3d 515 (2015). Consequently, we first examine the wording of K.S.A. 21-4624(b),
which states:

"(b) [U]pon conviction of a defendant of capital murder, the court, upon motion
of the county or district attorney, shall conduct a separate sentencing proceeding to
determine whether the defendant shall be sentenced to death. The proceeding shall be
conducted by the trial judge before the trial jury as soon as practicable. If any person who
served on the trial jury is unable to serve on the jury for the sentencing proceeding, the
court shall substitute an alternate juror who has been impaneled for the trial jury. If there
are insufficient alternate jurors to replace trial jurors who are unable to serve at the
sentencing proceeding, the trial judge may summon a special jury of 12 persons which
shall determine the question of whether a sentence of death shall be imposed. Jury
selection procedures, qualifications of jurors and grounds for exemption or challenge of
prospective jurors in criminal trials shall be applicable to the selection of such special
jury. The jury at the sentencing proceeding may be waived in the manner provided by
K.S.A. 22-3403 and amendments thereto for waiver of a trial jury. If the jury at the
sentencing proceeding has been waived or the trial jury has been waived, the sentencing
proceeding shall be conducted by the court." K.S.A. 21-4624.

Kleypas argues the statute required the district court to make a specific
determination that it could not recall enough of the original trial jurors to seat a jury of 12
before it could begin the process of selecting a new jury for the penalty trial on remand.
But, as the State points out, there is nothing in the record to substantiate Kleypas' claim
that "the district court made no pretense of complying with the statute." The State cites
authority for the proposition that Kleypas "has the burden to designate a record
affirmatively showing error[,] and, without such a record, an appellate court presumes the

158
action of the district court was proper." State v. Valladarez, 288 Kan. 671, 686, 206 P.3d
879 (2009); see State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008) (appellant failed in
duty to designate record sufficient to establish claimed error by failing to cite to any
portion of record that would support claim; claim of alleged error fails without adequate
record). In addition, K.S.A. 22-3407 requires any objection to the manner in which a jury
panel has been selected or drawn to be raised by a motion to discharge the jury panel
made in writing and stating facts which show that the jury panel was improperly selected
or drawn.

These principles apply to the penalty phase of a capital case. As we stated in
Robinson:

"While K.S.A. 2014 Supp. 21-6619(b) compels our review of all issues briefed
on appeal, it does 'not require that we treat the record other than as it is presented to
us.' . . . We thus consider this challenge based on the status of the record presented on
appeal and mindful of the fact that Robinson, as the party alleging error, bears the burden
of demonstrating error." 303 Kan. at 219.

We, therefore, conclude that Kleypas has failed to establish error, even under his
reading of the statute.

Issue 20: CUMULATIVE ERROR DOES NOT REQUIRE REVERSAL OF KLEYPAS' CAPITAL
MURDER CONVICTION OR DEATH SENTENCE.

We next consider cumulative error in the guilt and penalty phases.

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 20.1. Guilt Phase

We have identified two guilt-phase trial errors that required amendment of our
original decision in Kleypas I. Kleypas does not raise a guilt-phase cumulative error
argument in this appeal, but, nevertheless, we consider whether the cumulative effect of
those two errors and the errors found in Kleypas I require reversal of Kleypas' remaining
convictions and, thus, the reversal of his death sentence. See K.S.A. 2015 Supp.
21-6619(b).

"Cumulative trial errors, when considered collectively, may require reversal of the
defendant's conviction when the totality of circumstances substantially prejudiced the
defendant and denied the defendant a fair trial." State v. Waller, 299 Kan. 707, 727-28,
328 P.3d 1111 (2014).

In Kleypas I, this court found only minor errors in the guilt phase which we were
confident, under the totality of the circumstances, did not substantially prejudice Kleypas
or deny him a fair trial. State v. Kleypas, 272 Kan. 894, 1001, 40 P.3d 139 (2001)
(Kleypas I), cert. denied 537 U.S. 834 (2002), abrogated in part by Kansas v. Marsh, 548
U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006). We are equally confident that
nothing in our new analysis would have changed the jury's verdict given the
overwhelming evidence of guilt. See Carr, 300 Kan. at 254 (weighing cumulative errors
from the trial against overwhelming evidence of defendant's guilt). We have cured the
error created by the multiplicitous conviction by reversing it. And the isolated nature of
the erroneously admitted evidence about the blood stain on the shower curtain and
Logan's reliance on that evidence did not combine with any other error previously

160
identified to increase the risk of substantial prejudice. Cumulative error does not require
reversal of the guilt phase.

20.2. Penalty Phase

The analysis of cumulative error in the penalty phase differs somewhat from the
analysis in the guilt phase. First, we must consider whether the errors of the guilt-phase
proceedings must be considered in conjunction with penalty-phase errors. See State v.
Cheever, 304 Kan. 866, 902, 375 P.3d 979 (2016) (Cheever II). But here, because a
different jury heard the penalty phase, no basis exists for accumulating the errors arising
in the separate phases.

Second, as we recently stated:

"We hold that when considering a claim that cumulative error infected the
penalty-phase proceeding, our test is whether we are able to find that the total cumulative
effect of the errors, viewed in the light of the record as a whole, had little, if any,
likelihood [or no reasonable possibility] of changing the jury's ultimate conclusion
regarding the weight of the aggravating and mitigating circumstances. See Kleypas [I],
272 Kan. at 1087. . . . The overwhelming nature of the evidence is a factor to be
considered, but its impact is limited. As with the prosecutorial-misconduct analysis, the
question before this court is not what effect the error might generally be expected to have
upon a reasonable jury but, rather, what effect it had upon the actual sentencing
determination in the case on review. See Kleypas [I], 272 Kan. at 1088." Cheever II, 304
Kan. at 902.

As to errors in the penalty phase, we have found several but concluded none
individually require us to vacate the penalty verdict. We have found that the corrective

161
action taken by the district court judge to address the outburst caused by C.W.'s father
cured any fundamental failure in the proceedings. The same is true of the corrective
action taken by the district court following the prosecutor's inadvertent reference to the
defendant having testified. We have also noted the lack of record to establish that Tom
Williams' testimony went beyond that covered by the State's notice but concluded that,
even if a notice violation occurred, no prejudice resulted. As to the next error, the failure
of the district court judge to instruct the jury in accordance with the mandate of Kleypas I
had essentially no effect on the outcome of the penalty phase, because the jury was
correctly instructed under the applicable law. And the prosecutor's suggestion that Dr.
Gentry was fictitious was gross and flagrant misconduct and evidenced ill will, but it was
ultimately harmless.

Turning to the cumulative effect of these errors, none of these incidents were
related, so none had the effect of intensifying another. And while the overwhelming
evidence to support the aggravating factors asserted by the State does not determine the
question, it is a factor to consider in assessing penalty-phase cumulative error. See
Cheever II, 304 Kan. at 902. And the evidence supporting the aggravating factors found
to exist was substantial. Thus, while we assume the jury found all of Kleypas' proffered
mitigating circumstances apply, we are able to determine beyond a reasonable doubt that
any cumulative effect of error in the penalty phase had no reasonable possibility of
changing the jury's ultimate conclusion regarding the weight of the aggravating and
mitigating circumstances. Cumulative error does not require this court to vacate Kleypas'
death sentence.

Finally, we must consider the mandate of K.S.A. 2015 Supp. 21-6619(c), which
provides:

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 "(c) With regard to the sentence, the court shall determine:

(1) Whether the sentence of death was imposed under the influence of passion,
prejudice or any other arbitrary factor; and

(2) whether the evidence supports the findings that an aggravating circumstance
or circumstances existed and that any mitigating circumstances were insufficient to
outweigh the aggravating circumstances."

Considering the errors we have found singularly and cumulatively, we hold that
Kleypas' sentence of death was not imposed under the influence of passion, prejudice, or
any other arbitrary factor and that evidence supports the findings that aggravating
circumstances existed and that the mitigating circumstances were insufficient to outweigh
the aggravating circumstances.

CONCLUSION

For the foregoing reasons, we affirm Kleypas' capital murder conviction and the
death sentence, reverse the conviction for attempted rape and vacate that sentence, and
remand to the district court for resentencing on the aggravated burglary charge under the
Kansas Sentencing Guidelines.

Affirmed in part, reversed in part, sentence vacated in part, and remanded with
directions.

***

163
 JOHNSON, J., dissenting: I dissent from the majority's affirmance of Gary Kleypas'
death sentence in the first instance because I view the death penalty as a cruel or unusual
punishment proscribed by § 9 of the Kansas Constitution Bill of Rights. See State v.
Robinson, 303 Kan. 11, 351, 363 P.3d 875 (2015) (Johnson J., dissenting), cert. denied
___ U.S. ___ (October 3, 2016), disapproved of by State v. Cheever, 304 Kan. 866, 375
P.3d 979 (2016). In Robinson, I adopted the criticisms of the death penalty expressed by
Justices Breyer and Ginsburg in Glossip v. Gross, 576 U.S. ___, 135 S. Ct. 2726, 2755-
77, 192 L. Ed. 2d 761 (2015) (Breyer, J., joined by Ginsburg, J., dissenting). 303 Kan. at
351. The systemic flaws in that final, irreversible disposition still exist,
"[n]otwithstanding the egregious nature of the crimes and the compelling evidence of
guilt presented in this particular case." Robinson, 303 Kan. at 351.

Given my view that the death penalty is categorically unconstitutional for every
person convicted of murder in this State, I see no reason for a detailed discussion of all
the other holdings by the majority with which I disagree. But I do take the liberty of
briefly mentioning two objections.

First, one has to ruminate on the absurdity of affirming Kleypas' death sentence for
the off-grid offense of capital murder and then remanding for resentencing on the
consecutively imposed guidelines sentence for aggravated burglary. Statutorily, Kleypas
"shall not begin to serve the on-grid sentence until paroled from the off-grid sentence."
K.S.A. 2015 Supp. 21-6819(b)(2). When Kleypas' death sentence is fully executed, he
will not be paroled; he will be buried. Thus, he can never begin whatever consecutive on-
grid sentence the district court might want to impose in theory. Granted, K.S.A. 2015
Supp. 21-6819(b)(5) directs an appellate court to remand for resentencing when a
conviction designated as the primary crime is reversed. See State v. Brooks, 298 Kan.

164
672, 685, 317 P.3d 54 (2014) (appellate court should not speculate about legislative intent
when statute is plain and unambiguous). But that section of the statute should be read in
harmony with the aforementioned subsection (b)(2) to avoid a meaningless and absurd
result in death penalty cases. See State v. Coman, 294 Kan. 84, 93, 273 P.3d 701 (2012)
(appellate courts must consider various provisions of an act in pari materia with a view of
reconciling and bringing the provisions into workable harmony if possible); State v.
Frierson, 298 Kan. 1005, 1013, 319 P.3d 515 (2014) (courts must construe statutes to
avoid unreasonable or absurd results and presume the legislature does not intend to enact
meaningless legislation). Given that we have scant resources to perform the necessary
judicial functions in this State, I would hold that a resentencing for the on-grid crime is
currently a moot issue in this case, unnecessary unless a federal court subsequently sets
aside the death sentence, at which point a resentencing would be meaningful.

Finally, while the majority gives lip service to the rule that a heightened degree of
reliability is required to impose a death sentence, it does not appear to actually exercise
any heightened scrutiny of the prejudicial effect of the fundamental failure of the
proceedings. It cites to State v. Warren, 302 Kan. 601, 610, 356 P.3d 396 (2015), to
support its suggestion that Kleypas' failure to request an individual polling of the jury is
fatal to his mistrial claim. But Warren was not a capital case where heightened scrutiny is
required and the alleged fundamental failure in that proceeding occurred during jury
selection, not during the evidentiary portion of the trial in front of a sitting jury.

The majority also cites to State v. Rayton, 268 Kan. 711, 722-23, 1 P.3d 854
(2000), which involved felony murder, not a death penalty, and, more importantly,
involved more effort on the part of the trial court, to-wit:

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 "A review of the record indicates the jurors assured the judge that they were able
to objectively consider the evidence and render a verdict unbiased by the perceived
threats. The judge had an opportunity to observe the demeanor of the jurors. When the
judge denied Rayton's motion for a mistrial, he stated:

'Well, I guess the decision I make is based, at least in part, on my
assessment of [the jurors'] demeanor in talking to them and . . . the way
they responded to my questions and the—the forthrightness with which
they answered and their—their overall attitude, which was a low level of
concern about the entire incident or series of incidents, and that it wasn't
something that would affect a decision, and they were very convincing
about that. And maybe from the print, you know, on the paper in the
record, that doesn't come off that way but that's the way I assess it. And I
am very interested in Mr. Rayton having a fair trial and I thought—'

"In view of the judge's assessment of the lack of actual intimidation felt by the
jurors, the judge did not abuse his discretion in denying Rayton's motion for a mistrial."
Rayton, 268 Kan. at 722-23.

In my view, simply presuming that the jury will heed the trial judge's admonition
to ignore the fundamental failure in the proceedings is insufficient to reach the requisite
level of reliability required in a death penalty case. A heightened degree of reliability as
to a lack of prejudice to the defendant should require something like the trial judge
making an individual and sequestered inquiry of each juror as to whether the incident
would affect his or her judgment, with the judge personally observing each juror's
responses and assessing the credibility of the negative responses. Even in Rayton, where
a death sentence was not a possibility, the trial judge made the finding that the jurors
were "'very convincing'" in their assertion that the fundamental failure in the proceedings

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"'wasn't something that would affect [their] decision.'" 268 Kan. at 722. I believe we
should require no less here.

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