State v. Appleby

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IN THE SUPREME COURT OF THE STATE OF KANSAS

NO. 98,017

STATE OF KANSAS,
Appellee,

V.

BENJAMIN A. APPLEBY,
Appellant.


SYLLABUS BY THE COURT


1. When an appellate court reviews a ruling relating to a double jeopardy or multiplicity
issue, an unlimited scope of appellate review applies.

2. Multiplicity is the charging of a single offense in several counts of a complaint or
information. Multiplicity creates the potential for multiple punishments for a single
offense in violation of the Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution and § 10 of the Kansas Constitution Bill of Rights. The procedural
objection of multiplicity preserves a claim of double jeopardy, which arises when a
defendant is actually sentenced twice for one offense.

3. When analyzing a claim of double jeopardy, the overarching inquiry is whether the
convictions are for the same offense. There are two components to this inquiry, both of
which must be met for there to be a double jeopardy violation: (1) Do the convictions
arise from the same conduct? and (2) By statutory definition are there two offenses or
only one?

4. When analyzing whether sentences relating to two convictions that arise from unitary
conduct result in a double jeopardy violation, the test to be applied depends on whether
the convictions arose from one or two statutes. If the double jeopardy issue arises from
convictions for multiple violations of a single statute, the unit of prosecution test is
applied. If the double jeopardy issue arises from multiple convictions of different
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statutes, in other words if it is a multiple-description issue, the strict-elements test is
applied.

5. The strict-elements test serves as a rule of statutory construction to discern whether the
Kansas Legislature intended multiple offenses and multiple punishments when a court is
analyzing the claim under the Double Jeopardy Clause of the Fifth Amendment to the
United States Constitution. Similarly, when analyzing a claim under § 10 of the Kansas
Constitution Bill of Rights, the strict-elements test is applied to implement the legislative
declaration in K.S.A. 21-3107 that a defendant may be convicted of two crimes arising
from the same conduct unless one is a lesser included offense of the other. Finally,
K.S.A. 21-3107 provides a statutory defense when charges arise from the same conduct.

6. K.S.A. 21-3439, the capital murder statute, is neither referenced nor incorporated into the
inherently dangerous felony statute, K.S.A. 21-3436, which provides that a homicide
alleged to violate K.S.A. 21-3401(b) and certain felonies identified by the legislature as
inherently dangerous are distinct and do not merge. Consequently, the inherently
dangerous felony statute does not apply when a homicide is charged under the capital
murder statute.

7. When capital murder is charged under K.S.A. 21-3439(a)(4), the State must prove
beyond a reasonable doubt that the defendant intentionally and with premeditation killed
a victim in the commission of, or subsequent to, the commission of one of the sex crimes
listed in the statute, which includes attempted rape as defined in K.S.A. 21-3301 and
K.S.A. 21-3502. Hence, all of the elements of the underlying sex crime are some of the
elements of the capital murder, meaning the specified sex crime is a lesser included
offense. As a result, under K.S.A. 21-3107, a count charging capital murder under
K.S.A. 21-3439(a)(4) is multiplicitous with a count charging the underlying sex crime,
and imposing sentences for both convictions violates a defendant's rights to be free from
double jeopardy as guaranteed by the Fifth Amendment to the United States Constitution
and § 10 of the Kansas Constitution Bill of Rights.

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8. In reviewing a trial court's decision regarding suppression of a defendant's statement to
law enforcement officers, an appellate court reviews the factual underpinnings of the
decision by a substantial competent evidence standard and the ultimate legal conclusion
by a de novo standard. The appellate court does not reweigh evidence or assess the
credibility of witnesses but will give deference to the trial court's findings of fact.

9. A suspect may seek legal assistance for only limited purposes in his or her dealings with
law enforcement. A suspect's request for counsel which is unambiguously limited to a
law enforcement procedure that does not involve oral inquiry does not constitute an
invocation of the right to counsel in custodial interrogation under the Fifth Amendment.

10. The right to counsel under the Sixth Amendment to the United States Constitution is
offense specific and cannot be invoked once for all future prosecutions. As a result, the
assertion of Sixth Amendment rights in one case does not prevent the admission of
incriminating statements pertaining to other crimes as to which the Sixth Amendment
right has not yet attached.

11. When a suspect invokes his or her Fifth Amendment right to counsel, which is protected
by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385
U.S. 890 (1966), interrogation must cease regarding that or any other crime.

12. Assertion of the Fifth Amendment right to counsel requires, at a minimum, some
statement that can reasonably be construed to be an expression of a desire for the
assistance of an attorney in dealing with a custodial interrogation by law enforcement.

13. When a defendant argues he or she requested the assistance of counsel, the timing as well
as the content and context of a reference to counsel may help determine whether there has
been an unambiguous assertion of the right to have the assistance of an attorney in
dealing with a custodial interrogation by law enforcement officers.


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14. A de novo standard of review applies to challenges to the legal basis of a trial court's
admission of evidence, including a challenge alleging evidence was admitted in violation
of the Confrontation Clause of the Sixth Amendment to the United States Constitution.

15. Testimonial statements of witnesses absent from trial are admissible over a Confrontation
Clause objection only when the declarant is unavailable and the defendant has had a prior
opportunity to cross-examine the declarant.

16. DNA is physical evidence and is nontestimonial. Placing this physical evidence in a
database with other physical evidence―i.e., other DNA profiles―does not convert the
nature of the evidence, even if the purpose of pooling the profiles is to allow comparisons
that identify criminals. The database is comprised of physical, nontestimonial evidence.

17. The acts of writing computer programs that allow a comparison of samples of physical
evidence or that calculate probabilities of a particular sample occurring in a defined
population are nontestimonial actions. Neither the database nor the statistical program
are functionally identical to live, in-court testimony, doing what a witness does on direct
examination.

18. The Confrontation Clause of the Sixth Amendment to the United States Constitution is
not violated if materials that form the basis of an expert's opinion are not submitted for
the truth of their contents but are examined to assess the weight of the expert's opinion.

19. When a party has objected to an instruction at trial, the instruction will be examined on
appeal to determine if it properly and fairly states the law as applied to the facts of the
case and could not have reasonably misled the jury. In making this determination an
appellate court is required to consider the instructions as a whole and not isolate any one
instruction.



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20. The pattern instructions for Kansas (PIK) have been developed by a knowledgeable
committee to bring accuracy, clarity, and uniformity to jury instructions. They should be
the starting point in the preparation of any set of jury instructions. If the particular facts
in a given case require modification of the applicable pattern instruction or the addition of
some instruction not included in PIK, the trial court should not hesitate to make such
modification or addition. However, absent such need, PIK instructions and
recommendations should be followed.

21. When reviewing the imposition of a sentence of life imprisonment without the possibility
of parole for 50 years, an appellate court reviews the trial court's weighing of aggravating
and mitigating circumstances under an abuse of discretion standard.

22. K.S.A. 21-4635 is constitutional and does not violate the holding of Apprendi v. New
Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).

Appeal from Johnson district court; STEVE LEBEN, judge. Opinion filed November 20, 2009. Affirmed
in part, reversed in part, and sentence vacated in part.

Debra J. Wilson, of Capital and Conflicts Appellate Defender Office, argued the cause and was on the
briefs for appellant.

Steven J. Obermeier, assistant district attorney, argued the cause, and Phill Kline, district attorney, and
Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: Benjamin A. Appleby was convicted of the attempted rape and capital
murder of A.K., a 19-year-old college student, in Johnson County, Kansas.

The following issues are raised on appeal: (1) Are Appleby's convictions of capital
murder and attempted rape multiplicitous, meaning his sentences for both convictions result in a
double jeopardy violation? (2) Did the trial court violate Appleby's right against self-
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incrimination by admitting into evidence custodial statements made after Appleby had asked,
while being booked on a different case, whether he would be able to talk to an attorney? (3) Did
the trial court violate Appleby's right to confrontation by admitting into evidence a computer-
generated report regarding population statistics related to DNA testing? (4) Did the trial court
err by giving a jury instruction containing an expanded definition of "premeditation"? (5) Did
the trial court abuse its discretion in weighing aggravating and mitigating circumstances in
determining whether to impose the hard 50 sentence? and (6) Is the hard 50-sentencing scheme
unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348
(2000)?

On review, we agree with Appleby's arguments regarding issue one, hold that his
attempted rape conviction is multiplicitous with his capital murder conviction, and vacate the
sentence imposed for the attempted rape conviction. However, we affirm Appleby's conviction
and sentence for capital murder, finding that Appleby failed to establish error resulting from any
of the complaints raised in issues two through six.

FACTUAL AND PROCEDURAL BACKGROUND

On June 18, 2002, A.K. was murdered while working alone as an attendant at a
swimming pool near her family's home. Her brother, who also worked as a pool attendant,
arrived at the pool around 5 p.m. to relieve A.K. after her shift ended, but he could not find her.
He called their father, R.K., who came to the pool and searched for his daughter. Around 5:30
p.m., R.K. found A.K. in the pool's pump room, lying face down under a pool cover. She had
been severely beaten, her face was battered and bloody, and her hair was matted with blood.
A.K. was naked from the waist down, her sports bra had been pushed up under her arms, and her
T-shirt was wrapped tightly around her neck.

Soon after this tragic discovery, police arrived and secured the pool area. In doing so, an
officer recorded the name of everyone present at the scene, including a "Teddy Hoover" who was
later identified as Appleby. The police also secured evidence, some of which was tested for
DNA. This testing revealed DNA that did not match A.K.'s. Few other leads developed from
the initial investigation.
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An autopsy led to the conclusion that A.K.'s death was caused by strangulation and
multiple blunt force injuries, although the strangulation would have been enough to kill A.K. Dr.
Michael Handler―the forensic neuropathologist who performed the autopsy and who is board
certified in anatomic pathology, neuropathology, and forensic pathology―concluded there had
been both ligature and manual strangulation. According to him, it would have taken
approximately 10―and perhaps as many as 16―minutes for the assailant to strangle A.K.
Because there was petechial hemorrhaging, Dr. Handler believed there were periods when the
force of strangulation was stopped.

Dr. Handler also identified other injuries, which made it appear A.K. had been in a
horrible fight. Both of her eyes were blackened, her lip was cut, and her arms were bruised and
scraped. A.K.'s hands, especially the knuckles and fingers, were cut, and the fingers on her left
hand were contorted and broken. A.K. also had bruises on her face and both hip bones, knees,
feet, and upper thighs. There were two lacerations on the back of A.K.'s head, which could have
been caused by a fall or by someone beating her head against the floor.

Several months after A.K.'s death, Sergeant Scott Hansen of the Leawood Police
Department went to Appleby's home in Kansas City, Kansas. At that point in time, the police
knew Appleby by his alias of Teddy Hoover. Appleby agreed to speak with Sergeant Hansen
and indicated that he was a self-employed pool maintenance contractor. Hansen requested a
DNA elimination sample from Appleby, who said he would talk to his attorney about providing a
sample. When Hansen tried to follow up later, he discovered that Appleby had left town.

Subsequent leads caused police to seek more information from Appleby, who they still
knew as Teddy Hoover. In November 2004, the investigation led Kansas detectives to
Connecticut, where Appleby was living. Connecticut State Police discovered an outstanding
arrest warrant for Appleby from 1998 and agreed to execute the warrant when Kansas detectives
could be present. The purpose of this arrest was to give Kansas detectives an opportunity to
question Appleby.

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After Kansas detectives arrived in Connecticut, they worked with Connecticut officers to
prepare and obtain search warrants that authorized a search of Appleby's house and the swabbing
of Appleby's mouth for the purpose of obtaining a DNA sample. Then, Connecticut police
arrested Appleby at his home and executed the residential search warrant.

While the search warrant was being executed, Appleby was transported to a nearby
Connecticut police station by Connecticut Detective Daniel Jewiss. On the way, Appleby
volunteered that after some "trouble" in his past, he had taken on the name of his childhood
friend, Teddy Hoover, who had died in an accident.

At the police station, Detective Jewiss started processing Appleby on the Connecticut
arrest warrant. During the book-in process, another detective from Connecticut's major crime
unit executed the search warrant that allowed swabbing Appleby's inner mouth for purposes of
DNA testing. As we will discuss in more detail as part of our analysis of the second issue, when
served with the DNA search warrant Appleby asked if he could speak to an attorney regarding
his right to refuse the swabbing and, at three other points during the book-in process, asked
whether he would have a chance to talk to an attorney. Appleby was told he did not have a right
to refuse the execution of the warrant allowing the DNA swabbing but was told he would have
the opportunity to call an attorney.

After completing most of the book-in process, Detective Jewiss told Appleby that other
detectives wanted to speak to him about "an unrelated matter" and asked if Appleby was willing
to talk to them. Appleby agreed and was taken upstairs to an interrogation room where the
Kansas detectives waited. The detectives asked Appleby if he would answer some questions
about A.K.'s murder. Up to this point, Appleby had not been told that Kansas detectives were
involved or that some of the warrants were related to the A.K. murder investigation.

Appleby told the Kansas detectives he wanted to speak with them and straighten out
some details from the time Sergeant Hansen interviewed him at his home in Kansas City. After
being Mirandized, Appleby told the Kansas detectives that while he lived in Kansas City he used
the name Teddy Hoover and had a pool company named Hoover Pools. Appleby indicated that
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he moved to Texas shortly after his interview with Sergeant Hansen and went back to using his
real name, Benjamin Appleby; then he moved to Connecticut.

The detectives repeatedly asked Appleby if he had been at the pool where A.K. died, but
Appleby told them he had never been there. After approximately 1 hour, the detectives moved
him to an adjoining interview room. The second room contained items from the police
investigation, such as a time line of the investigation, A.K.'s photograph and obituary, an aerial
photograph of the pool, a videotape, a notebook labeled with the name Teddy Hoover, and two
additional notebooks labeled as crime scene and autopsy photographs. The detectives then
confronted Appleby with the fact that an officer at the pool on the day of the murder had logged
the presence of a man who gave the name Teddy Hoover and a telephone number. At that point,
Appleby acknowledged he had been at the pool that day.

About 15 or 20 minutes later, Appleby admitted he had killed A.K. Appleby told the
detectives A.K. was in the pump room when he arrived at the pool. Finding A.K. attractive,
Appleby tried to "hit on her," but A.K. rejected his advances and tried to leave the pump room.
Appleby stood in her way and tried to grab her breasts and her waist. A.K. pushed Appleby and
then punched him. This angered Appleby, who "lost it" and, in his own words, "just beat the shit
out of her."

Appleby described the ensuing struggle during which the two fell and Appleby hit A.K.
twice in the back of the head, which rendered her unconscious. Then he straddled A.K. and
removed her shorts and panties, intending to have sex with her. Appleby next stood up and
found a first-aid kit stored in the pump room. From the kit, the defendant said he took a tube of
ointment and used the ointment as a sexual lubricant, but he could not obtain an erection.

Appleby also admitted to strangling A.K., although he told the detectives he could not
remember what he used. At one point, Appleby suggested he used the rope on the pool
thermometer in the pump room. At other times he stated he did not remember strangling A.K.

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In describing what happened next, Appleby stated that as he was leaving, he thought he
heard A.K. breathing and "didn't want to leave her that way," so he covered her up with the pool
cover. He then left as a young woman drove up and honked a horn. He waved, got into his
truck, and left. Appleby returned to the pool later, about 5:30 p.m., because he wanted to see
what had happened; as a result, he was on the scene when the police created the crime scene log.

DNA testing performed by two crime labs matched Appleby's DNA to the DNA found
mixed with A.K.'s DNA on the ointment tube and on her sports bra and T-shirt. In addition,
Appleby was linked to the crime by the young woman who pulled up as Appleby was leaving the
pool; she identified him as the man she saw.

The State charged Appleby with capital murder for the death of A.K. (Count I), under
K.S.A. 21-3439(a)(4) (intentional premeditated killing in the commission of or subsequent to the
offense of attempted rape), and attempted rape (Count II), under K.S.A. 21-3301 and K.S.A. 21-
3502. The jury found Appleby guilty of both charges. The trial court imposed a hard 50 life
imprisonment sentence for the murder conviction and a consecutive sentence of 228 months'
imprisonment for the attempted rape conviction. Appleby now appeals.

After oral arguments before this court, an order was entered staying a decision pending
the United States Supreme Court's decisions in two cases. The first, Montejo v. Louisiana, 556
U.S. ___, 173 L. Ed. 2d 955, 129 S. Ct. 2079 (2009), which relates to Appleby's second issue
regarding the admission of his confession, was filed on May 26, 2009. The second, Melendez-
Diaz v. Massachusetts, 557 U.S. ___, 174 L. Ed. 2d 314, 129 S. Ct. 2527 (2009), which relates to
Appleby's third issue regarding the admission of the DNA testing, was filed on June 25, 2009.
Following each decision, Appleby filed letters of supplemental authority pursuant to Supreme
Court Rule 6.09(b) (2008 Kan. Ct. R. Annot. 47), and this matter is now ready for decision
pursuant to this court's jurisdiction under K.S.A. 22-3601(b)(1) (off-grid crime).




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ISSUE 1. MULTIPLICITY OF CAPITAL MURDER AND ATTEMPTED RAPE

Appleby's first issue on appeal is a multiplicity and double jeopardy objection that he first
asserted in a pretrial motion to dismiss the attempted rape charge. In the motion, he argued the
Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, § 10 of the
Kansas Constitution Bill of Rights, and K.S.A. 21-3107 prohibit convictions on both counts
alleged against him―i.e., capital murder and attempted rape. The trial court set the motion to
dismiss for hearing along with several other pretrial motions. Although a ruling on this motion is
not contained in the record on appeal, presumably the motion was denied because the case
proceeded on both counts. Because the issue is purely one of law, we are not hindered in our
review by the absence of the ruling from the record on appeal.

A. Standard of Review

When an appellate court reviews a ruling on a double jeopardy or multiplicity issue, an
unlimited scope of appellate review applies. State v. Thompson, 287 Kan. 238, 243, 200 P.3d 22
(2009); State v. Harris, 284 Kan. 560, Syl. ¶ 3, 162 P.3d 28 (2007).

B. Strict-Elements Test

In raising this issue before pretrial, Appleby argued the charges of attempted rape and
capital murder based on the aggravating crime of attempted rape were multiplicitous.

"'"Multiplicity is the charging of a single offense in several counts of a complaint or
information. The reason multiplicity must be considered is that it creates the potential for multiple
punishments for a single offense in violation of the Double Jeopardy Clause of the Fifth
Amendment of the United States Constitution and section 10 of the Kansas Constitution Bill of
Rights."' [Citations omitted.]" State v. Schoonover, 281 Kan. 453, 475, 133 P.3d 48 (2006).

The procedural objection of multiplicity preserves a claim of double jeopardy, which arises when
a defendant is actually sentenced twice for one offense. See Schoonover, 281 Kan. at 475.
When analyzing a claim of double jeopardy,
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"the overarching inquiry is whether the convictions are for the same offense. There are two
components to this inquiry, both of which must be met for there to be a double jeopardy violation:
(1) Do the convictions arise from the same conduct? and (2) By statutory definition are there two
offenses or only one?" Schoonover, 281 Kan. at 496.

The State does not argue that the offenses were two acts of discrete conduct.
Consequently, we accept that the convictions arose from unitary conduct and focus on the second
inquiry of whether the conduct constituted one or two offenses by statutory definition.

When analyzing whether sentences relating to two convictions that arise from unitary
conduct result in a double jeopardy violation, the test to be applied depends on whether the
convictions arose from one or two statutes. If the double jeopardy issue arises from convictions
for multiple violations of a single statute, the unit of prosecution test is applied. If the double
jeopardy issue arises from multiple convictions of different statutes, in other words if it is a
multiple-description issue, the strict-elements test is applied. Schoonover, 281 Kan. at 497.

Because Appleby raises a double jeopardy argument arising from his convictions under
two different statutes, the strict-elements test applies to this analysis. The strict-elements test
"serves as a rule of statutory construction to discern whether [a legislature] intended multiple
offenses and multiple punishments" when a court is analyzing the claim under the Double
Jeopardy Clause of the Fifth Amendment. Schoonover, 281 Kan. at 498. Similarly, when
analyzing a claim under § 10 of the Kansas Constitution Bill of Rights, "the same-elements test
is applied to implement the legislative declaration in [K.S.A. 21-3107] that a defendant may be
convicted of two crimes arising from the same conduct unless one is a lesser included offense of
the other." Schoonover, 281 Kan. at 498. Finally, K.S.A. 21-3107 provides a statutory defense
when charges arise from the "same conduct."

K.S.A. 21-3107 provides:

"(1) When the same conduct of a defendant may establish the commission of more than
one crime under the laws of this state, the defendant may be prosecuted for each of such crimes.
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Each of such crimes may be alleged as a separate count in a single complaint, information or
indictment.
"(2) Upon prosecution for a crime, the defendant may be convicted of either the crime
charged or a lesser included crime, but not both. A lesser included crime is:
(a) A lesser degree of the same crime;
(b) a crime where all elements of the lesser crime are identical to some of the
elements of the crime charged;
(c) an attempt to commit the crime charged; or
(d) an attempt to commit a crime defined under subsection (2)(a) or (2)(b)."
(Emphasis added.)

C. Application of Strict-Elements Test

Recently, in Trotter v. State, 288 Kan. 112, Syl. ¶ 1, 200 P.3d 1236 (2009), we applied
these principles and K.S.A. 21-3107 to a defendant's argument that his premeditated first-degree
murder conviction under K.S.A. 21-3401 and his capital murder conviction under K.S.A. 21-
3439(a)(6) were improperly multiplicitous and his punishment for both crimes violated the
Double Jeopardy Clause. Because Trotter was convicted of crimes defined by two separate
statutes, he argued the strict-elements test applied and noted that all of the elements of
premeditated first-degree murder had to be proven as some of the elements of capital murder
under K.S.A. 21-3439(a)(6), which defines capital murder as the "intentional and premeditated
killing of more than one person as a part of the same act or transaction or in two or more acts or
transactions connected together or constituting parts of a common scheme or course of conduct."
We agreed with the defendant's argument and concluded the premeditated first-degree murder
conviction was a lesser included offense of the capital murder count and must be reversed under
K.S.A. 21-3107(2). Trotter, 288 Kan. at 120-24.

In reaching this holding in Trotter, we relied on earlier decisions in which we had held
that K.S.A. 21-3439(a)(6) created a unit of prosecution that is comprised of the premeditated
first-degree murder of one victim and the commission of an additional, aggravating premeditated
first-degree murder as part of the same transaction or common scheme. The combination of the
two murders elevated the crime to a capital offense, and the two first-degree murders were
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recognized as lesser included offenses of the capital murder. See State v. Scott, 286 Kan. 54, 65-
66, 183 P.3d 801 (2008); State v. Martis, 277 Kan. 267, Syl. ¶ 1, 83 P.3d 1216 (2004).

Further, the Trotter court noted that the key inquiry in a double jeopardy analysis is to
determine what measure of punishment the legislature intended. Consequently, the Trotter court
considered whether there was a legislative intent to allow the multiple punishment and concluded
the plain language of K.S.A. 21-3439 did not express a legislative intent to override K.S.A. 21-
3107(2), which clearly states that a defendant cannot be convicted of both a primary and lesser
included offense. See Trotter, 288 Kan. at 122-23 (citing Scott, 286 Kan. at 65-66, 68).

The Trotter analysis guides our consideration of Appleby's claim of statutory
multiplicity. Although Trotter's capital murder conviction was based on K.S.A. 21-3439(a)(6)
and Appleby's conviction is based on K.S.A. 21-3439(a)(4), we find no basis to reach a different
conclusion simply because the aggravating felony is attempted rape rather than a premeditated
first-degree murder. In the same manner that the State must prove the elements of the lesser
offense of premeditated first-degree murder when the charge arises under K.S.A. 21-3439(a)(6),
the State must prove the lesser offense of a sex crime―in this case, attempted rape―when the
capital murder charge is brought under K.S.A. 21-3439(a)(4). To prove the elements of capital
murder, the State had to prove beyond a reasonable doubt that Appleby intentionally, and with
premeditation, killed A.K. in the commission of, or subsequent to, the crime of attempted rape.
Hence, all of the elements of attempted rape were identical to some of the elements of the capital
murder, meaning the attempted rape was a lesser included offense. Under K.S.A. 21-3107(2),
Appleby could not be convicted of both, and imposing sentences for both convictions violated
Appleby's rights to be free from double jeopardy as guaranteed by the Fifth Amendment to the
United States Constitution and § 10 of the Kansas Constitution Bill of Rights.

Recognizing this potential extension of our holding in Trotter, the State urges our
reconsideration of that decision, arguing the decision is contrary to the holding in Harris, 284
Kan. 560, and the felony-murder rule, as applied through the inherently dangerous felony statute.
We reject both arguments.

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Regarding the first argument, the holding in Harris does not apply to the issue in this
case. The specific issue raised in Harris was whether there was a double jeopardy violation
because two of the defendant's three convictions of capital murder were based on the same group
of related murders. The issue arose from Harris' multiple convictions under a single
statute―K.S.A. 21-3439(a)(6), the multiple-murder subparagraph of the capital murder statute.
This contrasts with Trotter's convictions which arose under two statutes―K.S.A. 21-3439(a)(6),
the multiple murder subparagraph of the capital murder statute, and K.S.A. 21-3401, the first-
degree murder statute.

Because Harris' convictions arose from a single statute, the "unit of prosecution" test was
applied to determine if there had been a double jeopardy violation. Under that test, the question
is: What did the legislature intend as the unit of prosecution in a capital murder case? See
Schoonover, 281 Kan. at 497-98. In Harris, we answered this question by determining that the
legislature has proscribed the unit of prosecution as the murder of more than one person in one
act or transaction or in related acts or transactions joined by a common scheme. Harris, 284
Kan. 560, Syl. ¶ 6. This meant that two of Harris' capital murder convictions had to be reversed
because the State charged the murders as part of one scheme. Harris, 284 Kan. at 577-78.

In reaching that holding, we recognized that "under other circumstances, a defendant may
be convicted and punished appropriately and constitutionally on multiple counts of capital
murder, as that offense is defined in K.S.A. 21-3439(a)(1) through (7)." Harris, 284 Kan. at 578.
In this case, the State suggests that this statement in Harris supports cumulative punishment
under the facts in Trotter and, by extension, in this case. The State's argument fails, however,
because it does not recognize that the comment in Harris was intended to recognize the
possibility of charges being brought under different subparagraphs of the capital murder
statute―i.e., two different theories―resulting in multiple counts. Further, the State confuses
the unit of prosecution test applied in Harris with the multiple-description, i.e., the strict
elements, test applied in Trotter.

The distinction is clarified when the sentence from Harris is read in context; doing so
explains the court was referring to a potential issue not reached in Harris and not at issue in this
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case. Specifically, after the sentence relied on by the State, the court cited Brooks v. State, 973
So. 2d 380 (Ala. Crim. App. 2007), in which the defendant had been convicted of four counts of
capital murder in connection with the murder of a 12-year-old boy. The offense satisfied four
definitions of capital murder contained in Ala. Code § 13A-5-40(a) (2006). That potential
situation and the situation actually at issue in Harris raised unit of prosecution questions, not
strict-elements issues. Our holding in Trotter is consistent with the unit of prosecution analysis
in Harris because, in both cases, we considered multiple murders to be one unit of prosecution.

Nevertheless, such a conclusion did not resolve the issue in Trotter because Trotter was
not convicted of multiple counts arising from the same statute and, therefore, the unit of
prosecution test was not the controlling test. Rather, Trotter's convictions arose from multiple
statutes; specifically, the issue presented in Trotter was whether the defendant could be
convicted of one count under K.S.A. 21-3439(a)(6)―capital murder―and of another count
under K.S.A. 21-3401―premeditated first-degree murder. Under those circumstances―i.e.,
when punishment is imposed for violations of two different statutes–the multiple-description,
otherwise known as the strict-elements, test under K.S.A. 21-3107 applies. See Schoonover, 281
Kan. at 497-98.

This case, like Trotter, presents a multiple-description issue: Can Appleby be convicted
of both capital murder under K.S.A. 21-3439(a)(4) and attempted rape under K.S.A. 21-3301
(attempt) and K.S.A. 21-3502 (rape)? The multiple-description, strict-elements test applies to
the determination of this issue and Harris' unit of prosecution analysis has no application.

The second argument raised by the State is that the felony-murder rule, as applied
through the inherently dangerous felony statute, specifically allows multiple convictions for both
the homicide and an underlying felony. The State cites to State v. Holt, 260 Kan. 33, 917 P.2d
1332 (1996), for its holding that convictions for a felony murder and the underlying felony did
not violate double jeopardy. The State relies on the Holt court's statements that there is a
"'distinction between the "lesser included offense" doctrine and the "felony murder" doctrine.
Each is a separate theory of law. Each exists in a distinct legal pigeonhole.'" Holt, 260 Kan. at
17

45; see also Schoonover, 281 Kan. at 489-92 (discussing felony-murder doctrine and double
jeopardy).

The most obvious problem with the State's argument is that the inherently dangerous
felony statute, K.S.A. 21-3436, does not apply to the capital murder statute. Rather, the
inherently dangerous felony statute defines the homicides to which it applies by stating:

"(a) Any of the following felonies shall be deemed an inherently dangerous felony
whether or not such felony is so distinct from the homicide alleged to be a violation of subsection
(b) of K.S.A. 21-3401, and amendments thereto, as not to be an ingredient of the homicide alleged
to be a violation of subsection (b) of K.S.A. 21-3401, and amendments thereto." K.S.A. 21-3436.

The referenced homicide statute―the only referenced homicide statute―is K.S.A. 21-
3401(b), the felony-murder statute, which applies "to the killing of a human being . . . in the
commission of, attempt to commit, or flight from an inherently dangerous felony as defined in
K.S.A. 21-3436." K.S.A. 21-3439―the capital murder statute―is neither referenced nor
incorporated into the inherently dangerous felony statute―K.S.A. 21-3436.

In addition, as we noted in Trotter, the capital murder statute does not contain language
similar to that found in the inherently dangerous felony statute, which provides that the homicide
and the inherently dangerous felony are distinct and do not merge. Trotter, 288 Kan. at 122-23
(citing Scott, 286 Kan. at 68); compare K.S.A. 21-3107 with K.S.A. 21-3439. As we have
frequently recognized, this language in the inherently dangerous felony statute reflects that the
legislature understands the need to express an intent to allow convictions under two statutes for
the same conduct and knows how to do so. See Schoonover, 281 Kan. at 490-91; see also State
v. Farmer, 285 Kan. 541, Syl. ¶ 4, 175 P.3d 221 (2008); State v. Conway, 284 Kan. 37, 57, 159
P.3d 917 (2007); State v. Walker, 283 Kan. 587, 611, 153 P.3d 1257 (2007).

Because the legislature did not include similar language in the capital murder statute, our
analysis is governed by the expression of legislative intent stated in K.S.A. 21-3107(2)(b).
Applying the same-elements test under that provision, Appleby's two convictions―one for
18

capital murder based upon the intentional and premeditated killing of A.K. in the commission of,
or subsequent to, the attempted rape of A.K. under K.S.A. 21-3439(a)(4) and the other for the
attempted rape of A.K. under K.S.A. 21-3301 and K.S.A. 21-3502―are improperly
multiplicitous and violate Appleby's right to be free from double jeopardy. Appleby's sentence
for the attempted rape conviction must be vacated.

ISSUE 2. SUPPRESSION OF CONFESSION


Next, Appleby contends the trial court erred by admitting into evidence the incriminating
statements he made to Kansas detectives. Appleby argues the statements must be suppressed
because he asked about an attorney while he was being booked on the Connecticut arrest
warrant.

A. Attorney Requests

This argument differs from the typical issue arising from the application of Miranda v.
Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966), in that
Appleby was arrested in another state on unrelated charges, and the arresting officer, Detective
Jewiss, had no intention of interrogating Appleby; typically a Miranda issue arises when there is
custodial interrogation related to the crime on which the arrest was based. Under the
circumstances of this case, the State argues Appleby's questions about whether he would be
allowed to talk to an attorney were, at most, an invocation of Sixth Amendment rights related to
the Connecticut charges. Appleby argues that he was asserting his Fifth Amendment rights and
the assertion applied to both cases. To understand these arguments, a more detailed discussion
of the interaction is necessary.

When Appleby was arrested in Connecticut, he was arrested on the Connecticut charges
only, even though the arrest was timed to occur when Kansas detectives were in Connecticut and
the arrest may not have occurred if Kansas law enforcement had not contacted the Connecticut
State Police Department to request assistance in investigating Appleby. But this involvement
was behind the scene; the Kansas detectives did not directly participate when Detective Jewiss
took Appleby into custody at his home, and Appleby was not aware of their presence until after
19

he had asked the Connecticut detectives the four questions about whether he could talk to an
attorney. Appleby did ask Detective Jewiss why there were so many officers at his house, and
the detective explained a search warrant was being executed and the officers were going to
search the home. Appleby questioned what the search was about, and Jewiss replied that he
"wasn't going to talk to him any further about the case; that somebody else would talk to him."

During the approximately 3-mile drive to the station, Detective Jewiss did not ask
Appleby any questions, but Appleby volunteered information about his use of the alias of Teddy
Hoover.

When Detective Jewiss and Appleby arrived at the station, Detective Jewiss began the
routine book-in process on the Connecticut arrest warrant. At this point, before Appleby had
been Mirandized, Appleby asked "if he was going to have the opportunity to talk to an attorney."
Detective Jewiss replied "absolutely." Detective Jewiss testified he understood this to be a
question regarding procedure, not an invocation of the right. While testifying at the suppression
hearing, Detective Jewiss was asked if he was questioning Appleby at this point in time. He
answered: "Not at all. I even informed him that I wouldn't be questioning him, and that I
wouldn't talk to him about either of these cases."

After Appleby asked about an attorney, he was read a notice of rights form that listed the
three Connecticut charges―risk of injury to a minor, disorderly conduct, and public indecency.
The form also advised of Miranda rights and stated in part: "You may consult with an attorney
before being questioned; you may have an attorney present during questioning, and you cannot
be questioned without your consent." Appleby signed the notice of rights form, which was an
acknowledgment, not a waiver of rights.

Soon after that exchange, another Connecticut detective advised Appleby of the search
warrant that authorized the officer to swab the inside of Appleby's mouth in order to obtain a
DNA sample. Detective Jewiss testified that Appleby asked if he had the right to say "no" and
then asked if he could speak to an attorney about his right to refuse the testing. According to
20

Detective Jewiss, the detectives advised Appleby he could not talk to an attorney at that point
regarding a search that had been authorized by a judge.

Following the DNA swabbing, Detective Jewiss continued with the book-in process on
the Connecticut charges. Appleby was fingerprinted and photographed, the property on his
person was inventoried, and a personal information data sheet was completed. During that
process, Appleby asked two more times whether he would have an opportunity to talk to an
attorney.

At the suppression hearing, Detective Jewiss repeatedly testified that he understood
Appleby to be "asking about our procedure as in . . . will he have the opportunity to talk to an
attorney." According to Detective Jewiss, the question was never in the context of, "I don't want
to talk to you" or "I don't want to talk to anybody without an attorney here."

Detective Jewiss testified that during the book-in process he asked Appleby his name,
date and place of birth, residence, and similar book-in questions. The only other question he
asked came about 30 minutes after they arrived at the police station when Detective Jewiss asked
Appleby if he wanted to talk to some people about an unrelated matter. Appleby said he would.
Detective Jewiss was asked if Appleby brought up the word "attorney" at that time, and he
replied, "No, he didn't."

Detective Jewiss was also asked why he did not give Appleby the opportunity to speak to
an attorney before sending him upstairs to be interrogated by the Kansas detectives. Detective
Jewiss, who had repeatedly stated that he had understood Appleby to be asking about procedure
and had explained that a defendant would typically be allowed to contact an attorney only after
the book-in process was complete, testified that "[t]here was still some processing that I had to
continue with."

When Detective Jewiss transferred Appleby to the Kansas detectives, he reported that
Appleby had not invoked his right to counsel, "but he has asked something about an attorney
when the [DNA] search warrant was being conducted." Detective Jewiss did not tell the Kansas
21

detectives about the other instances when Appleby asked whether he would be able to talk to an
attorney.

After Detective Jewiss left, the two Kansas detectives asked Appleby if he wanted to
answer some questions about the murder of A.K. He said he wanted to talk to them, and the
detectives then told him he would be read his Miranda rights again since he was being
interviewed "on a different charge from what he was arrested." After being read his rights,
Appleby said he understood them and was willing to answer some questions. He was questioned
for approximately 2 and 1/2 hours, the final 20 minutes on videotape. At no point during the
questioning by the Kansas detectives did Appleby indicate he wished to speak to or have the
assistance of an attorney.

B. Trial Court's Findings

Appleby filed three pretrial motions to suppress the statements he made to the Kansas
detectives. After hearing the testimony we have described above, the trial court denied
Appleby's motions in a memorandum decision. The trial court explained that although Appleby's
initial motion to suppress cited to the Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution and to three provisions of the Kansas Constitution Bill of Rights, he later
limited his claim to "the admissibility [of the statements] under the Fifth and Fourteenth
Amendments." Therefore, the trial court limited its scope of analysis.

The trial court recognized there are two questions to ask in the determination of whether
a suspect has invoked his or her Fifth Amendment right to counsel: (1) whether the suspect
articulated a desire to have an attorney present sufficiently clearly that a reasonable officer in the
circumstances would understand the statement to be a request for an attorney and (2) whether an
attorney is being requested for purposes of interrogation rather than in regard to later hearings or
proceedings. See State v. Walker, 276 Kan. 939, 945, 80 P.3d 1132 (2003). The trial court
concluded Appleby clearly requested an attorney, but he did not make it clear he wanted the
attorney to assist with questioning rather than to have assistance with his case.

22

Regarding the clear indication that Appleby wanted the assistance of counsel, the trial
court noted Appleby had asked four times about contacting an attorney in a period of
approximately 30 minutes. The trial court found that, although Appleby's requests were never
phrased as a demand, "they clearly communicated a desire to call his attorney without substantial
further delay."

Yet, in concluding the purpose of Appleby's request was not clear, the trial court stated:

"There are many purposes Appleby could have sought to accomplish by contacting his
lawyer. At the time he made those requests, no one had indicated to him that his arrest was
connected in any way to the [A.K.] murder investigation. He may have wanted his attorney to try
to determine whether that was the real reason multiple officers had shown up to search his
residence. Or Appleby may simply have wanted to learn the procedural steps that might take
place following his arrest. Or he may have wanted his attorney to take steps to secure his release
on bond. Other purposes could have been present as well, including the desire to obtain the
assistance of counsel in dealing with any questioning that might ensue after 'processing' was
completed."

In addition, the trial court found:

"Appleby's lack of intent to obtain a lawyer to assist with any pending custodial interrogation is an
inference supported by his later (a) saying affirmatively that he wanted to speak to the [Kansas]
detectives, (b) making an explicit Miranda waiver for them, (c) speaking with them for two and a
half hours, and (d) never mentioning a lawyer during that interview."

Consequently, the trial court denied Appleby's motion to suppress, finding that based
upon Appleby's statements and the context in which they were made, "he did not ask for counsel
for the purpose of assisting him with an imminent custodial interrogation."

C. Standard of Review

In reviewing the trial court's decision regarding suppression, this court reviews the factual
underpinnings of the decision by a substantial competent evidence standard and the ultimate
23

legal conclusion by a de novo standard. We do not reweigh evidence or assess the credibility of
witnesses but will give deference to the trial court's findings of fact. State v. Warledo, 286 Kan.
927, 934-35, 190 P.3d 937 (2008); State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006).

D. Defendant's Arguments

Appleby argues his requests for an attorney were clear and sufficient to require the
Kansas detectives to refrain from questioning him until his requests were honored or until he had
initiated contact with them. Appleby contends that his statements to the Kansas detectives,
therefore, should have been suppressed. To support his argument, he (1) cites a Montana case
holding that law enforcement officers and, in turn, courts must broadly interpret any reference to
an attorney by a suspect; (2) cites an Oregon decision to suppress a suspect's statements under
circumstances Appleby argues are factually similar to this case; and (3) argues the trial court's
reasoning imposes too exacting a standard, essentially requiring the suspect to use the specific
words of "I want an attorney to assist me with your purposed custodial interrogation," and that
his statements to Detective Jewiss were sufficiently clear to invoke his Fifth Amendment right to
counsel.

In making these arguments, Appleby groups together all of the instances where he
referred to an attorney during the book-in process. Nevertheless, as we analyze his arguments,
we recognize that one of the instances was of a different character than the others; that was the
one made in response to the execution of the search warrant for purposes of obtaining DNA
swabs. In that instance, Appleby clearly asked if he could talk to his attorney about whether he
could refuse to allow the swabbing. In the three other instances, his questions were more
general, as he asked whether he would have the opportunity to talk to an attorney. The differing
nature of these questions is important as we consider the cases cited by Appleby.

1. Broad Interpretation

In arguing that any mention of an attorney must be broadly interpreted, Appleby cites
State v. Buck, 331 Mont. 517, 134 P.3d 53 (2006), in which the request made for an attorney was
24

similar to Appleby's question about whether he could talk to an attorney about the DNA search
warrant. However, Buck is not cited by Appleby because of its factual similarity but because of
the court's recognition that law enforcement officers and courts should give broad effect to any
mention of an attorney by a suspect.

In Buck, when served with a search warrant allowing officers to obtain fingernail
scrapings, the suspect said, "'I'll just wait and talk to a lawyer.'" Buck, 331 Mont. at 521. Yet,
when given the opportunity to call a lawyer, the suspect refused to do so. Several days later, the
suspect―who had remained in custody―was again taken to the police station, Mirandized, and
asked if he would answer questions. He agreed and confessed. The suspect later sought
suppression of his confession, arguing his statement that he wanted to talk to an attorney before
submitting to the fingernail scraping was an unambiguous invocation of his Miranda rights.

In considering this argument, the Montana court noted that in Connecticut v. Barrett, 479
U.S. 523, 529-30, 93 L. Ed. 2d 920, 107 S. Ct. 828 (1987), the United States Supreme Court
observed its past decisions had "given broad effect to requests for counsel" and that Montana had
a long-standing rule of liberally construing any mention of an attorney by a suspect. Buck, 331
Mont. at 536-37. The Montana court stated:

"[N]o suspect has an affirmative obligation to explain precisely why he or she wants legal
assistance. . . . [I]f there is any reasonable doubt as to whether a suspect's request for counsel is
limited to only certain aspects of his or her interaction with investigating officers, the request must
be construed as an invocation of the right to counsel in custodial interrogation." Buck, 331 Mont.
at 537.

Appleby urges our adoption of the same viewpoint. We reject that invitation for several
reasons. First, the Montana court's statement cannot be isolated from the holding in the case,
which followed Barrett. In Barrett, the United States Supreme Court refused to suppress a
verbal statement made after a suspect told law enforcement officers he would talk to them, but he
would not give a written statement before talking to his attorney. Barrett, 479 U.S. at 529-30.
Considering Barrett and factually similar cases from other states, the Montana court concluded
that Buck had not invoked his right to the assistance of counsel for the purpose of assisting with
25

interrogation when he refused to submit to fingernail scraping until he had talked to an attorney.
The Montana court stated:

"[A] suspect may seek legal assistance for only limited purposes in his or her dealings with law
enforcement. Based upon this recognition, and pursuant to Barrett, we hold that a suspect's
request for counsel which is unambiguously limited to a police procedure that does not involve
verbal inquiry, does not constitute an invocation of the right to counsel in custodial interrogation.
Rather, a clearly limited request is properly construed according to its plain meaning, assuming
that the suspect fully understands his or her right to counsel." Buck, 331 Mont. at 536-37.

The same conclusion applies in this case to the one comment made by Appleby in the
context of the DNA search warrant. Detective Jewiss testified that after being presented with the
warrant, "Mr. Appleby then asks if he has the right to say no. He also asks if―at that point if he
can talk to his attorney about his right to say no for that." This statement was unambiguous and
was a request for limited assistance. Clearly, it was not a request for the assistance of an attorney
for the purpose of assisting with the custodial interrogation. Undoubtedly, it is because of the
precedent of Barrett that Appleby does not isolate the DNA search-warrant comment as a clear
invocation of his Fifth Amendment right to counsel and relies on Buck only for its dicta about
broadly construing a suspect's comments.

As to this latter point, we reject the Montana court's analysis because of decisions of the
United States Supreme Court decided after Barrett that are not discussed in Buck. Significant to
Appleby's argument is Davis v. United States, 512 U.S. 452, 129 L. Ed. 2d 362, 114 S. Ct. 2350
(1994). The Davis Court noted that Barrett, 479 U.S. at 529-30, and Smith v. Illinois, 469 U.S.
91, 96 & n.3, 83 L. Ed. 2d 488, 105 S. Ct. 490 (1984), mentioned the issue of ambiguous and
equivocal requests for counsel but had "not addressed the issue on the merits. We granted
certiorari, [citation omitted], to do so." Davis, 512 U.S. at 456.

Faced squarely with the issue, the Court held that "the suspect must unambiguously
request counsel." Davis, 512 U.S. at 459. Stating the holding in another way, the Court said:
"We decline petitioner's invitation to extend Edwards and require law enforcement officers to
cease questioning immediately upon the making of an ambiguous or equivocal reference to an
26

attorney. [Citation omitted.]" Davis, 512 U.S. at 459. Further, the Court declined to adopt a
rule requiring officers to ask clarifying questions. Davis, 512 U.S. at 461. The Court reasoned:

"We recognize that requiring a clear assertion of the right to counsel might disadvantage
some suspects who―because of fear, intimidation, lack of linguistic skills, or a variety of other
reasons―will not clearly articulate their right to counsel although they actually want to have a
lawyer present. But the primary protection afforded suspects subject to custodial interrogation is
the Miranda warnings themselves. '[F]ull comprehension of the rights to remain silent and request
an attorney [is] sufficient to dispel whatever coercion is inherent in the interrogation process.'
[Citation omitted.] A suspect who knowingly and voluntarily waives his right to counsel after
having that right explained to him has indicated his willingness to deal with the police unassisted."
Davis, 512 U.S. at 460-61.

Applying this authority, we reject Appleby's argument that any mention of counsel must
be construed broadly. Rather, the trial court was correct in examining whether Appleby's
questions were unambiguous requests for the assistance of counsel for the purpose of the
interrogation.

2. Oregon Case Law

Alternatively, Appleby argues his assertion of Fifth Amendment rights was not
ambiguous or equivocal. To support this argument, he cites State v. Dahlen, 209 Or. App. 110,
146 P.3d 359, modified 210 Or. App. 362, 149 P.3d 1234 (2006) (remanded for further
proceedings, not new trial).

In Dahlen, the defendant was placed in a holding cell after his arrest. Approximately 8
hours later, the suspect knocked on his cell door to get the attention of jailers and asked, "'When
can I call my attorney?'" 209 Or. App. at 115. Less than an hour later, the suspect asked the
same question. Then, 11 hours after his arrest, officers Mirandized the suspect, the suspect
waived his rights, the officers asked questions, and the suspect confessed.

27

The Oregon Court of Appeals suppressed the confession after concluding the suspect's
question of when he could call his attorney was unequivocal and objectively would be
understood to mean that the suspect wanted to call his attorney as soon as possible. Dahlen, 209
Or. App. at 117-19. In reaching this conclusion, the court distinguished a decision of the Oregon
Supreme Court, State v. Charboneau, 323 Or. 38, 54, 913 P.2d 308 (1996). In Charboneau, the
suspect asked, "'Will I have an opportunity to call an attorney tonight?'"; the Oregon Supreme
Court held this request was equivocal and ambiguous and did not require the suppression of the
suspect's confession. Charboneau, 323 Or. at 52, 55-56.

As we compare the questions asked by the suspects in Dahlen and Charboneau with
Appleby's repeated questions of whether he would be able to talk to an attorney, the Charboneau
question―"Will I have an opportunity to call an attorney tonight?"― is more similar. The
discussion in Dahlen cites dictionary definitions and other sources to substantiate the view that
asking "when" is a more definite statement than asking "will." Dahlen, 209 Or. App. at 118. As
we apply that discussion to this case, we note that asking "will" is essentially the same as asking
"whether." Hence, we find the Oregon Supreme Court's analysis of the defendant's question in
Charboneau to be more applicable and the analysis of the question in Dahlen to be inapposite.

Interestingly, the contrast between the two statements and the discussion in Dahlen
actually raises questions about the trial court's conclusion that Appleby asserted a right to
counsel even for Sixth Amendment purposes. We need not parse that question any further,
however, because we agree with the trial court's conclusion that Appleby's statements were
ambiguous and not a clear invocation of Fifth Amendment rights. As noted earlier, because of
the interplay of two investigations the potential for this type of ambiguity is greater in this case
than the typical scenario and, on this basis, Dahlen is distinguishable. The potential for this
ambiguity did not arise under the facts of Dahlen and, consequently, did not need to be
addressed.

Consequently, Appleby's reliance on Dahlen is misplaced.


28

3. Fifth and Sixth Amendment Rights

Finally, disagreeing with the trial court's conclusion that the circumstances created
ambiguity, Appleby asserts that the potential interplay between Fifth and Sixth Amendment
rights did not need to be considered in this case. He argues that the trial court improperly created
two tests that place too exacting a standard on a suspect's attempts to request the assistance of
counsel. Further, he argues a reasonable law enforcement officer would have understood he was
asserting his Fifth Amendment rights.

In response, the State contends that Appleby's requests for an attorney are more akin to a
Sixth Amendment invocation of the right to counsel than a Fifth Amendment invocation of the
right to counsel. It argues Appleby's requests could not reasonably be construed to be requests
for assistance with custodial interrogation because he was not being interrogated at the time he
made those requests. In addition, the State asserts that the Miranda right to counsel may not be
anticipatorily invoked.

The State's arguments bring into issue the interrelationship of Fifth and Sixth
Amendment rights, which was discussed by the United States Supreme Court in McNeil v.
Wisconsin, 501 U.S. 171, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991), under circumstances similar
to those in this case―i.e., where an arrest is made in one case and an interrogation relates to
another. In McNeil, the defendant was arrested in Omaha, Nebraska, pursuant to a Wisconsin
warrant based on charges of an armed robbery outside Milwaukee. Milwaukee detectives went
to Omaha to retrieve McNeil. The detectives advised McNeil of his Miranda rights and began to
ask questions. McNeil refused to answer any questions, the interview ended, and he was taken to
Wisconsin where an attorney was appointed to represent him.

Later that day, McNeil was visited by officers from a different Wisconsin county. The
county detectives advised McNeil of his Miranda rights, and McNeil signed a form waiving
those rights. The county detectives then asked McNeil about charges of murder, attempted
murder, and armed robbery. McNeil denied any involvement in the crimes. Two days later the
29

county detectives returned and again advised McNeil of his Miranda rights. McNeil again
waived his rights and this time confessed.

McNeil sought suppression of his statement to the county detectives asserting a Sixth
Amendment right to counsel, but the Supreme Court determined his confession was admissible.
McNeil, 501 U.S. at 175-76, 181-82. The ruling was based on the distinction between McNeil's
Fifth and Sixth Amendment rights. The Supreme Court explained that the Sixth Amendment
right to counsel had attached in the Milwaukee case. McNeil, 501 U.S. at 175; see Brewer v.
Williams, 430 U.S. 387, 398, 51 L. Ed. 2d 424, 97 S. Ct. 1232, reh. denied 431 U.S. 925 (1977)
(Sixth Amendment right to counsel attaches on filing of formal charges, indictment, or
information; on arraignment; or on arrest on warrant and arraignment thereon). But that right,
the Court explained, is offense specific and cannot be invoked once for all future prosecutions.
McNeil, 501 U.S. at 175. As a result, '''[i]ncriminating statements pertaining to other crimes, as
to which the Sixth Amendment right has not yet attached, are, of course, admissible at the trial of
those offenses.' [Citation omitted.]" McNeil, 501 U.S. at 176.

A similar dividing line is not drawn, however, when the Fifth Amendment right to
counsel―which is protected by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct.
1602, reh. denied 385 U.S. 890 (1966)―is invoked (which McNeil did not do in arguing his
appeal). In other words, Fifth Amendment rights are not offense specific. See Arizona v.
Roberson, 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093 (1988). Thus, the McNeil Court
noted that "[o]nce a suspect invokes the Miranda right to counsel for interrogation regarding one
offense, he may not be reapproached regarding any offense unless counsel is present. [Citation
omitted.]" (Emphasis added.) McNeil, 501 U.S. at 177. Further, Edwards v. Arizona, 451 U.S.
477, 484-85, 68 L. Ed. 2d 378, 101 S. Ct. 1880, reh. denied 452 U.S. 973 (1981),

"established a second layer of prophylaxis for the Miranda right to counsel: Once a suspect
asserts the right, not only must the current interrogation cease, but he may not be approached for
further interrogation 'until counsel has been made available to him,' [Edwards], 451 U.S. at 484-
485,―which means, we have most recently held, that counsel must be present, Minnick v.
Mississippi, 498 U.S. 146[, 112 L. Ed. 2d 489, 111 S. Ct. 486] (1990). If the police do
subsequently initiate an encounter in the absence of counsel (assuming there has been no break in
30

custody), the suspect's statements are presumed involuntary and therefore inadmissible as
substantive evidence at trial, even where the suspect executes a waiver and his statements would
be considered voluntary under traditional standards. This is 'designed to prevent police from
badgering a defendant into waiving his previously asserted Miranda rights,' Michigan v. Harvey,
494 U.S. 344, 350[,108 L. Ed. 2d 293, 110 S. Ct. 1176] (1990)." McNeil, 501 U.S. at 176-77.

See also State v. Morris, 255 Kan. 964, 976-79, 880 P.2d 1244 (1994) (discussing McNeil).

Recently, in Montejo v. Louisiana, 556 U.S. __, 173 L. Ed. 2d 955, 129 S. Ct. 2079
(2009), the Supreme Court reaffirmed this Fifth Amendment jurisprudence, concluding the three
layers of protection―Miranda, Edwards, and Minnick―are sufficient. Montejo, 173 L. Ed. 2d
at 968. However, the Montejo Court modified some aspects of its Sixth Amendment
jurisprudence. Specifically, it overruled Michigan v. Jackson, 475 U.S. 625, 89 L. Ed. 2d 631,
106 S. Ct. 1404 (1986), because of that decision's "'wholesale importation of the Edwards rule
into the Sixth Amendment.'" Montejo, 173 L. Ed. 2d at 964; 173 L. Ed. 2d at 970 (overruling
Jackson).

However, except to separate the exclusionary rule that would apply under the Sixth
Amendment from that which applies when Fifth Amendment rights are violated, the Montejo
Court did not modify McNeil's dividing lines between Fifth and Sixth Amendment analysis, even
though much of that analysis was based on Jackson, which the Montejo Court overruled. In
particular, the Montejo Court did not alter the McNeil requirement that, even if Sixth
Amendment rights have been invoked, a defendant must affirmatively assert Fifth Amendment
rights if subjected to a custodial interrogation in another case. See Montejo, 173 L. Ed. 2d at
968-70 As a result, if Appleby asserted Sixth Amendment rights, as the State suggests, the
assertion was effective only in the Connecticut case.

Moreover, a Sixth Amendment assertion is not an assertion of the right to counsel during
an interrogation―the right protected by the Fifth Amendment. The McNeil Court explained:
"To invoke the Sixth Amendment interest is, as a matter of fact, not to invoke the Miranda-
Edwards interest. One might be quite willing to speak to the police without counsel present
concerning many matters, but not the matter under prosecution." McNeil, 501 U.S. at 178; see
31

Rhode Island v. Innis, 446 U.S. 291, 300, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980) (Miranda's
safeguards and procedural protection of Fifth Amendment rights "are required not where a
suspect is simply taken into custody, but rather where a suspect in custody is subjected to
interrogation.").

Because the accused's purpose in requesting an attorney must be determined in order to
sort the interplay of these rights, the McNeil Court concluded that an effective invocation of the
Fifth Amendment right to counsel

"applies only when the suspect 'ha[s] expressed' his wish for the particular sort of lawyerly
assistance that is the subject of Miranda. [Citation omitted.] It requires, at a minimum, some
statement that can reasonably be construed to be an expression of a desire for the assistance of an
attorney in dealing with custodial interrogation by the police." McNeil, 501 U.S. at 178.

See State v. Walker, 276 Kan. 939, 945, 80 P.3d 1132 (2003) (recognizing two aspects to
assertion of Fifth Amendment rights: [1] a reasonable police officer in the circumstances would
understand request was made for an attorney and [2] the request was for assistance with a
custodial interrogation, not for subsequent hearings or proceedings).

The Montejo Court reiterated this analysis and provided some guidance in making the
determination of whether a request is for an attorney's assistance with a custodial interrogation.
It stated:

"'We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a
context other than "custodial interrogation" . . . .' McNeil, supra [501 U.S.] at 182, n.3, 111 S. Ct.
2204, 115 L. Ed. 2d 158. What matters for Miranda and Edwards is what happens when the
defendant is approached for interrogation, and (if he consents) what happens during the
interrogation . . . ." (Emphasis added.) Montejo, 173 L. Ed. 2d at 970.

Even before the Montejo decision, the State in its brief in this case focused on McNeil's
statement and argued that Appleby could not anticipatorily assert his Fifth Amendment right.
This view is supported by a majority of federal and state courts that have relied on the language
in McNeil to hold that one cannot anticipatorily invoke the right to counsel prior to any custodial
32

interrogation. See, e.g., United States v. Grimes, 142 F.3d 1342, 1347-48 (11th Cir. 1998), cert.
denied 525 U.S. 1088 (1999); United States v. LaGrone, 43 F.3d 332, 337-38 (7th Cir. 1994);
United States v. Thompson, 35 F.3d 100, 103-04 (2d Cir. 1994); Alston v. Redman, 34 F.3d 1237,
1246 (3d Cir. 1994), cert. denied 513 U.S. 1160 (1995); United States v. Wright, 962 F.2d 953,
955 (9th Cir. 1992); United States v. Kelsey, 951 F.2d 1196, 1198-99 (10th Cir. 1991); People v.
Nguyen, 132 Cal. App. 4th 350, 357, 33 Cal. Rptr. 3d 390 (2005); Pardon v. State, 930 So. 2d
700, 703-04 (Fla. Dist. App.), rev. denied 944 So. 2d 346 (Fla. 2006); People v. Villalobos, 193
Ill. 2d 229, 240-42, 737 N.E.2d 639 (2000); Sauerheber v. State, 698 N.E.2d 796, 802 (Ind.
1998); Costley v. State, 175 Md. App. 90, 110-12, 926 A.2d 769 (2007); State v. Aubuchont, 147
N.H. 142, 149-50, 784 A.2d 1170 (2001); State v. Warness, 77 Wash. App. 636, 640-41, 893
P.2d 665 (1995).

Some courts have been liberal in determining the temporal range in which interrogation
could be considered "imminent." E.g., Kelsey, 951 F.2d at 1198-99 (defendant, who asked three
or four times to see his lawyer while in custody during search of home, had reasonable belief that
interrogation was imminent or impending, making request for counsel effective invocation of
Fifth Amendment Miranda right to counsel).

Other courts have been very restrictive in defining "imminent," allowing no intervening
activity between the invocation of the right and the planned initiation of questioning. E.g.,
Nguyen, 132 Cal. App. 4th at 357 (suspect did not invoke Miranda's protections by attempting to
call attorney during arrest); Pardon, 930 So. 2d at 703-04 (interrogation of suspect was not
imminent; he was merely being booked into detention, albeit on same charge on which he was
later questioned); Sauerheber, 698 N.E.2d at 802 (McNeil "strongly suggests that the rights
under Miranda and Edwards do not extend to permit anticipatory requests for counsel to
preclude waiver at the time interrogation begins"; assertion of right when not being questioned
ineffective even if in custody); Costley, 175 Md. App. at 111 (McNeil "suggests that custody,
absent interrogation, is insufficient.").

Similarly, in a case cited by the trial court―Aubuchont, 147 N.H. 142―the court refused
to suppress a statement simply because a suspect, while being arrested, yelled at his wife to call
33

an attorney. The New Hampshire Supreme Court noted: "[T]he timing of the defendant's
request controls whether he invoked his Miranda rights. The purpose of the defendant's request
was ambiguous, because he made his request before he was subject to interrogation or under the
threat of imminent interrogation." Aubuchont, 147 N.H. at 149. As a result, the court concluded:
"[I]t is unclear whether the defendant simply wished to seek advice from his attorney or whether
he wished to obtain assistance of counsel for some future interrogation." Aubuchont, 147 N.H. at
149-50.

This restrictive view is supported by the statements in Montejo that the Court had "'in fact
never held that a person can invoke his Miranda rights anticipatorily, in a context other than
"custodial interrogation"'" and "[w]hat matters for Miranda and Edwards is what happens when
the defendant is approached for interrogation." (Emphasis added.) Montejo, 173 L. Ed. 2d at
970.

Yet the Court did not clearly explain what was meant by the context of a custodial
interrogation or a context other than a custodial interrogation, and the facts of Montejo are very
different from those in this case and therefore do not help to explain the meaning as it would be
applied in this case. As in McNeil, the focus in Montejo was whether there had been an assertion
of Sixth Amendment rights that prevented further interrogation. In fact, upon his arrest, Montejo
waived his Miranda rights and gave police various versions of events related to the crime. A few
days later at a preliminary hearing, known in Louisiana as a "72-hour hearing," counsel was
appointed for Montejo even though he had not requested the appointment and had stood mute
when asked if he wanted the assistance of an attorney. Later that same day, police approached
Montejo, Mirandized him again, and asked him to accompany them to locate the murder weapon.
During the drive, Montejo wrote an inculpatory letter of apology to the victim's widow. After
the drive, Montejo met his attorney for the first time. At trial, he objected to the admission of the
letter, basing his objection on Jackson, 475 U.S. 625. The Supreme Court held that the letter
need not be suppressed based on an objection under Jackson, which it overruled. The Court
concluded Montejo had not asserted his Sixth Amendment right to counsel. Yet, the Court
concluded the case should be remanded to allow Montejo to assert an objection under Edwards,
451 U.S. 477, in other words, a Fifth Amendment objection. In discussing the Fifth Amendment
34

right, the Court stressed that the Edwards rule was meant to prevent police from badgering
defendants into changing their minds about the right to counsel once they had invoked it.
Montejo, 173 L. Ed. 2d at 959. The Court made no attempt to suggest how these various Fifth
Amendment principles would apply to Montejo's circumstances.

Here, Appleby does not assert that a Sixth Amendment right to counsel requires the
suppression of his confession. Nor did the trial court suppress on that basis. The trial court
merely pointed to the possibility of a Sixth Amendment assertion in another case―or perhaps
even the Kansas case―as a circumstance that caused Appleby's assertion to be ambiguous. He
relies on a Fifth Amendment right to counsel and suggests his questions during the book-in
process asserted that right. This argument brings us to the State's position that the right was not
effectively asserted because Appleby was not in the interrogation room.

Recently, in a pre-Montejo case, the Wisconsin Supreme Court examined what the
Supreme Court might have meant by its statement in McNeil that Fifth Amendment rights could
not be asserted in a "context other than 'custodial interrogation' . . . ." McNeil, 501 U.S. at 182
n.3 (language quoted in Montejo, 173 L. Ed. 2d at 970). In State v. Hambly, 307 Wis. 2d 98, 745
N.W.2d 48 (2008), the Wisconsin court noted a tension between statements in various decisions
of the United States Supreme Court. Specifically, the Hambly court attempted to reconcile the
above-stated McNeil language with the Miranda Court's statement that "a pre-interrogation
request for a lawyer . . . affirmatively secures [the] right to have one." Miranda, 384 U.S. at 470.
In doing so, the Wisconsin court noted the Miranda Court did not specifically address what is
meant by a "pre-interrogation request" for counsel during custody and did not address at what
point prior to custodial interrogation a suspect may effectively invoke the Fifth Amendment
Miranda right to counsel. Likewise, the McNeil Court did not address the question of whether
the "'context'" of a custodial interrogation could cover circumstances before an actual
interrogation begins. Hambly, 307 Wis. 2d at 111.

In light of that tension, the Hambly court felt it important to also consider the McNeil
Court's recognition that, under Edwards, an effective invocation of the Fifth Amendment
Miranda right to counsel "'requires, at a minimum, some statement that can reasonably be
35

construed to be an expression of a desire for the assistance of an attorney in dealing with
custodial interrogation by the police.'" Hambly, 307 Wis. 2d at 112 (quoting McNeil, 501 U.S. at
178). With this in mind, the Hambly court concluded the timing of the request for counsel may
help determine whether the request is for the assistance of an attorney in dealing with a custodial
interrogation by the police. Hambly, 307 Wis. 2d at 112. While the Hambly court rejected the
notion that a request for counsel can never be effective if made prior to interrogation, it
concluded that the United States Supreme Court's case law recognizes that a suspect in custody
may request counsel and effectively invoke the "Miranda right to counsel when faced with
'impending interrogation' or when interrogation is 'imminent' and the request for counsel is for
the assistance of counsel during interrogation." Hambly, 307 Wis. 2d at 114-15; see also 2
LaFave, Israel, King & Kerr, Criminal Procedure § 6.9(g), p. 869 n.200 (3d ed. 2007) (citing
cases for proposition that Miranda right to counsel may be validly asserted only when authorities
are conducting custodial interrogation or such interrogation is imminent and request for counsel
is for assistance of counsel during interrogation).

E. Imminent Questioning/Equivocal Assertion

This approach is similar to that followed by the trial court in this case and in past
decisions of this court where the context of a statement regarding an attorney has been analyzed
to view whether an objective law enforcement officer would understand there had been an
invocation of Fifth Amendment rights. For example, in State v. Gant, 288 Kan. 76, 201 P.3d 673
(2009), when considering facts very similar to those in Aubuchont, 147 N.H. 142―the case cited
by the trial court―this court recently held a defendant did not assert his Fifth Amendment rights
when he yelled to his companions while being arrested that they should call a lawyer. Although
we did not consider the question of whether interrogation must be imminent, we did conclude the
factual context revealed the defendant was directing his comments toward his companions, not
police, and was not clearly and unambiguously asserting his right to counsel. Gant, 288 Kan. at
81; see Walker, 276 Kan. at 945; Morris, 255 Kan. at 976-81.

Now, we explicitly recognize what was implicit in many of our prior decisions: The
timing as well as the content and context of a reference to counsel may help determine whether
36

there has been an unambiguous assertion of the right to have the assistance of an attorney in
dealing with a custodial interrogation by law enforcement officers.

This is the approach adopted by the trial court. In reaching the conclusion that the
context in this case created ambiguity, the trial court made several findings that are supported by
substantial competent evidence. Specifically, the trial court found that Appleby was aware he
was being arrested by Connecticut authorities and was being charged for crimes committed in
Connecticut. Further, Appleby had not been subjected to interrogation at that point in time about
anything, in either the Connecticut or the Kansas case, and no one had indicated to him that his
arrest was in any way connected the murder of A.K. See Pennsylvania v. Muniz, 496 U.S. 582,
601, 110 L. Ed. 2d 528, 110 S. Ct. 2638 (1990) (recognizing "'routine booking question'
exception which exempts from Miranda's coverage questions to secure the '"biographical data
necessary to complete booking or pretrial services."'" Moreover, Detective Jewiss had informed
Appleby that he would not be questioning him and that someone else would be talking to him
about "the case." At that point in time, Appleby only knew of the Connecticut case. Hence,
when Appleby asked whether he would have a chance to talk to an attorney, he knew he was not
going to be questioned by Detective Jewiss. At that point in time, interrogation was clearly not
imminent or impending.

It was not until minutes before the custodial interrogation with the Kansas detectives that
Appleby was asked by Detective Jewiss if he would talk to some people about an unrelated
matter. The trial court concluded that at that time: "Appleby undoubtedly believed that matter to
be the [A.K.] murder investigation." Yet Appleby agreed without hesitation to speak to the
detectives. Then Appleby was given his Miranda rights, which he clearly waived. He never
asked about an attorney again. Thus, when questioning was imminent―when Appleby was
approached for interrogation―he clearly waived his right to counsel.

We agree with the conclusion reached by the trial court that Appleby's references to an
attorney during the book-in process on the Connecticut charges did not constitute a clear and
unambiguous assertion of his Fifth Amendment right as protected by Miranda. The trial court
37

did not err in denying Appleby's motion to suppress his custodial statements made to the Kansas
detectives.

ISSUE 3. POPULATION STATISTICS RELATED TO DNA TESTING


Next, Appleby contends the trial court erred by admitting into evidence a computer-
generated report regarding population statistics as they relate to DNA testing. Specifically, he
argues his confrontation rights under the Sixth Amendment to the United States Constitution
were violated as those rights were defined in Crawford v. Washington, 541 U.S. 36, 68, 158 L.
Ed. 2d 177, 124 S. Ct. 1354 (2004).

The trial court admitted the testimony of Dana Soderholm, formerly a forensic scientist
for the Johnson County Crime Laboratory―now with the Kansas Bureau of Investigation (KBI)
Kansas City Regional Laboratory―who used the Polymerase Chain Reaction-Short Tandem
Repeat (PCR-STR) DNA analysis to test various items containing mixtures of blood, and Lisa
Dowler, a Kansas City Crime Laboratory forensic chemist, who ran DNA tests on A.K.'s sports
bra. These experts were permitted to testify regarding the DNA statistical population data that
was generated when they compared, via a computer software program, their tested DNA profiles
with databases of DNA profiles. Dowler and the Kansas City laboratory where she is employed
use a regional database. Soderholm and the Johnson County laboratory where she was employed
use the Federal Bureau of Investigation's (FBI) national DNA database known as the Combined
DNA Indexing System (CODIS); the Johnson County laboratory is certified by the FBI to use
the database. As Soderholm explained, when a DNA profile from a crime matches the DNA
profile from a suspect, a statistical analysis is performed to determine how rare or common that
particular DNA profile is in the general population. Soderholm testified:

"There is a software called Pop-Stats that is given to the labs by the CODIS group, and that is the
information that we use. It is software that is already built in, and you do not get into the
frequencies. You don't change any of that. You type in your alleles and the information is then
calculated within the computer, and then you print it out.
. . . .
". . . The normal procedure is if you have an inclusion, that you use Pop-Stats to generate
your statistics."
38


For example, with regard to the blood on the ointment tube, Soderholm testified that it
was consistent with Appleby's and the "probability of selecting an unrelated individual at random
from the population whose DNA would match that DNA profile from the tube was 1 in 14.44
billion." And with regard to one of the blood stains from the sports bra, Dowler's testimony
indicated that the chances of randomly selecting someone else in the population other than
Appleby whose DNA would match the male DNA profile from the bra was "1 in 2 quadrillion."

Appleby filed a motion to exclude the State's DNA evidence, arguing, inter alia, that
evidence of the application and use of population frequency databases by any witness who is not
an expert in that field would violate his right of confrontation. After conducting a hearing, the
trial court found that the use of DNA population databases did not present a Crawford issue
because those databases are not, in and of themselves, testimonial in nature.

The trial court relied on State v. Lackey, 280 Kan. 190, Syl. ¶ 5, 120 P.3d 332 (2005),
cert. denied 547 U.S. 1056 (2006), overruled on other grounds State v. Davis, 283 Kan. 569, 158
P.3d 317 (2006), where this court concluded that "[f]actual, routine, descriptive, and
nonanalytical findings made in an autopsy report are nontestimonial" and, therefore, "may be
admitted without the testimony of the medical examiner" who performed the autopsy. The trial
court found:

"The CODIS database simply represents a compilation of DNA information obtained over an
extended time period from a large population sample, along with the ability to easily compare any
sample with those already compiled. The CODIS database provides routine, descriptive
information that, under Crawford, is nontestimonial, at least when presented through the testimony
of a qualified DNA expert."

Disputing this conclusion, Appleby takes issue with the fact that Soderholm admitted
during recross-examination that she did not know who provided the samples for the frequencies
or how the databases were made. And although Soderholm had undergone some training
regarding CODIS and population genetics, she was admittedly not a statistician.

39

Appleby, therefore, contends that he had the right to confront a statistician to explain the
statistical principles used in the calculations. And he argues that he was denied any opportunity
to cross-examine the FBI's random match probability estimates because the witnesses presented
at trial did not prepare the database and had no personal knowledge of the methods and
procedures the FBI used to compute the statistical estimates or the set of data upon which the
calculations were based.

A. Standard of Review

Appleby's argument is subject to a de novo standard of review because he challenges the
legal basis of the trial court's admission of evidence, specifically that the evidence was admitted
in violation of the Confrontation Clause of the Sixth Amendment to the United States
Constitution. State v. Reid, 286 Kan. 494, 503, 186 P.3d 713 (2008) (de novo standard applies to
review of legal basis of admission of evidence); State v. Henderson, 284 Kan. 267, Syl. ¶ 2, 160
P.3d 776 (2007) (de novo standard applies to determination of whether the right to confrontation
has been violated).

B. Testimonial

The starting point for Appleby's Sixth Amendment Confrontation Clause objection is the
United States Supreme Court's holding in Crawford that the "testimonial statements" of
witnesses absent from trial are admissible over a Confrontation Clause objection only when the
declarant is unavailable and the defendant has had a prior opportunity to cross-examine the
declarant. Crawford, 541 U.S. at 68. This analysis altered the prior rule of Ohio v. Roberts, 448
U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), abrogated in Crawford, 541 U.S. 36, under
which a hearsay statement made by an unavailable witness could be admitted without violating
the Confrontation Clause if the statement contained adequate guarantees of trustworthiness or
indicia of reliability. Roberts, 448 U.S. at 66. Post-Crawford, the threshold question in any
Confrontation Clause analysis is whether the hearsay statement at issue is testimonial in nature.
State v. Brown, 285 Kan. 261, 285, 173 P.3d 612 (2007).

40

The Supreme Court did not explicitly define the term "testimonial" in Crawford. The
Court did state, however, that "[w]hatever else the term covers, it applies at a minimum to prior
testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police
interrogations." Crawford, 541 U.S. at 68; see also Davis v. Washington, 547 U.S. 813, 822, 165
L. Ed. 2d 224, 126 S. Ct. 2266 (2006) (in context of police interrogations, statements are
nontestimonial when made under circumstances objectively indicating that the primary purpose
of the interrogation is to enable police assistance to meet an ongoing emergency).

Recently, in Melendez-Diaz v. Massachusetts, 557 U.S. ___, 174 L. Ed. 2d 314, 321-22,
332-33, 129 S. Ct. 2527 (2009), the second of the cases that led us to stay this opinion pending a
United States Supreme Court decision, the Supreme Court held that forensic laboratory
certificates of analysis were testimonial and the admission of the certificates without the
testimony of the analysts violated a criminal defendant's rights under the Confrontation Clause of
the Sixth Amendment. In reaching the conclusion that the certificates were testimonial, the
Supreme Court focused on two factors, stating: (1) "The 'certificates' are functionally identical
to live, in-court testimony, doing 'precisely what a witness does on direct examination.' [Citation
omitted]"; and (2) "the affidavits [were] '"made under circumstances which would lead an
objective witness reasonably to believe that the statement would be available for use at a later
trial."' [Citation omitted.]" Melendez-Diaz, 174 L. Ed. 2d at 321; cf. Brown, 285 Kan. at 291
(listing these and other factors to consider in determining if an eyewitness' statement is
testimonial).

After finding the laboratory analysts' certificates met these tests to define testimonial
hearsay, the Melendez-Diaz Court rejected the argument that a different result was justified by
the objectivity of the scientific testing and reliability of the test results. The Melendez-Diaz
majority, discussing this topic in the context of responding to points made by the four dissenting
justices, observed:

"This argument is little more than an invitation to return to our overruled decision in
Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597, which held that evidence with
'particularized guarantees of trustworthiness' was admissible notwithstanding the Confrontation
41

Clause. [Roberts, 448 U.S.] at 66 [ ]. What we said in Crawford in response to that argument
remains true:

"'To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a
procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but
that reliability be assessed in a particular manner: by testing in the crucible of cross-
examination. . . . Dispensing with confrontation because testimony is obviously reliable is akin to
dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth
Amendment prescribes.' [Crawford,] 541 U.S. at 61-62 [ ]." Melendez-Diaz, 174 L. Ed. 2d at
325-26.

This discussion is particularly relevant in this case because the State argues the scientific,
objective nature of the DNA testing and the statistical probability program means the evidence at
issue in this case is nontestimonial. The trial court accepted this argument and partially based its
decision on such a rationale, as evidenced by the trial court's reliance on and citation to Lackey,
280 Kan. 190, Syl. ¶ 5, which in turn was partially based on the rationale that an autopsy report
recorded objective, scientific evidence. Melendez-Diaz undercuts this rationale.

Nevertheless, Melendez-Diaz does not answer the question of whether there was a
Confrontation Clause violation in this case. Here, unlike in Melendez-Diaz, the laboratory
analysts who performed the DNA testing were in court and subject to cross-examination. The
hearsay at issue is the data that was relied on by laboratory analyst Soderholm in reaching her
opinion regarding population frequency of specific DNA profiles. The closest the Melendez-
Diaz Court came to answering this question was to rebut the dissenting justices' argument that
the holding would require several individuals from a laboratory to testify. The Court stated:

"[W]e do not hold, and it is not the case, that anyone whose testimony may be relevant in
establishing the chain of custody, authenticity of the sample, or accuracy of the testing device,
must appear in person as part of the prosecution's case. . . . [D]ocuments prepared in the regular
course of equipment maintenance may well qualify as nontestimonial records." Melendez-Diaz,
174 L. Ed. 2d at 322 n.1.

42

While this statement suggests that not all aspects of the testing process are testimonial and
therefore subject to a defendant's rights under the Confrontation Clause, the examples differ from
the question of whether the data that underlies an expert's opinion is testimonial. Therefore, the
decision does not directly answer our question.

Nevertheless, applying the tests utilized in Melendez-Diaz, we conclude the population
frequency data and the statistical programs used to make that data meaningful are
nontestimonial. We first note that DNA itself is physical evidence and is nontestimonial. Wilson
v. Collins, 517 F.3d 421, 431 (6th Cir. 2008); United States v. Zimmerman, 514 F.3d 851, 855
(9th Cir. 2007); see also Schmerber v. California, 384 U.S. 757, 765, 16 L. Ed. 2d 908, 86 S. Ct.
1826 (1966) (holding that "blood test evidence, although an incriminating product of
compulsion, [is] neither . . . testimony nor evidence relating to some communicative act or
writing" and is therefore not protected by the Fifth Amendment).

Placing this physical evidence in a database with other physical evidence―i.e., other
DNA profiles―does not convert the nature of the evidence, even if the purpose of pooling the
profiles is to allow comparisons that identify criminals. See 42 U.S.C. §§ 14132(b)(3), 14135e
(2006) (stating purposes of CODIS and clearly recognizing use during trial when rules of
evidence allow). The database is comprised of physical, nontestimonial evidence. Further, the
acts of writing computer programs that allow a comparison of samples of physical evidence or
that calculate probabilities of a particular sample occurring in a defined population are
nontestimonial actions. In other words, neither the database nor the statistical program are
functionally identical to live, in-court testimony, doing what a witness does on direct
examination. Rather, it is the expert's opinion, which is subjected to cross-examination, that is
testimonial.

At least one other court has reached the same conclusion that the statistical data obtained
from CODIS is nontestimonial. See State v. Bruce, 2008 WL 4801648 (Ohio App. 2008)
(unpublished opinion). More generally, several courts have reasoned that the Confrontation
Clause is not violated if materials that form the basis of an expert's opinion are not submitted for
the truth of their contents but are examined to assess the weight of the expert's opinion. E.g.,
43

United States v. Lombardozzi, 491 F.3d 61, 73 (2d Cir. 2007); United States v. Henry, 472 F.3d
910, 914 (D.C. Cir. 2007); United States v. Adams, 189 Fed. Appx. 120, 124 (3d Cir. 2006)
(unpublished opinion); United States v. Stone, 222 F.R.D. 334, 339 (E.D. Tenn. 2004); People v.
Sisneros, 174 Cal. App. 4th 142, 153-54, 94 Cal. Rptr. 3d 98 (2009); State v. Lewis, 235 S.W.3d
136, 151 (Tenn. 2007); see Note, Testimonial Hearsay as the Basis for Expert Opinion: The
Intersection of the Confrontation Clause and Federal Rule of Evidence 703 after Crawford v.
Washington, 55 Hastings L.J. 1539, 1540 (2004).

Here, as explained in the testimony in this case, the database and the statistical program
are accepted sources of information generally relied on by DNA experts. Based on this scientific
data―which by itself is nontestimonial―the experts in this case developed their personal
opinions. See State v. Dykes, 252 Kan. 556, 562, 847 P.2d 1214 (1993). These experts were
available for cross-examination and their opinions could be tested by inquiry into their
knowledge or lack of knowledge regarding the data that formed the basis for their opinion.
Consequently, the right to confront the witnesses was made available to Appleby.

The trial court did not err in admitting the opinions of the DNA experts.

ISSUE 4. JURY INSTRUCTION ON PREMEDITATION

Appleby next contends that the trial court's instruction defining "premeditation," to which
Appleby objected at trial, unfairly emphasized the State's theory and violated his right to a fair
trial.

A. Standard of Review

When a party has objected to an instruction at trial, the instruction will be examined on
appeal to determine if it properly and fairly states the law as applied to the facts of the case and
could not have reasonably misled the jury. In making this determination an appellate court is
required to consider the instructions as a whole and not isolate any one instruction. State v.
44

Scott, 286 Kan. 54, 75, 183 P.3d 801 (2008); State v. Edgar, 281 Kan. 47, 54, 127 P.3d 1016
(2006).

B. Instruction and Arguments

The premeditation instruction given in this case tracks substantially with the pattern
instruction defining premeditation, PIK Crim. 3d 56.04(b). However, it contains some additional
language, and it is this additional language to which Appleby objects. The instruction, with the
language added to the PIK instruction in italics, stated:

"Premeditation means to have thought the matter over beforehand. In other words, to
have formed the design or intent to kill before the killing. Stated another way, premeditation is
the process of thinking about a proposed killing before engaging in the act that kills another
person, but premeditation doesn't have to be present before a fight, quarrel, or struggle begins.
There is no specific time period required for premeditation, but it does require more that the
instantaneous, intentional act of taking another person's life. Premeditation can occur at any time
during a violent episode that ultimately causes the victim's death." (Emphasis added.)

Appleby concedes in his appellate brief that the additional statements in the trial court's
definition of premeditation are correct statements of law. See State v. Gunby, 282 Kan. 39, Syl.
¶ 9, 144 P.3d 647 (2006) ("Premeditation is the process of thinking about a proposed killing
before engaging in the homicidal conduct, but it does not have to be present before a fight,
quarrel, or struggle begins. Death by manual strangulation can be strong evidence of
premeditation."); State v. Scott, 271 Kan. 103, 108, 21 P.3d 516, cert. denied 534 U.S. 1047
(2001) ("Premeditation does not have to be present before a fight, quarrel, or struggle begins.");
see also State v. Jones, 279 Kan. 395, 404, 109 P.3d 1158 (2005) (citing Scott, 271 Kan. at 111,
for the rationale that the jury could find defendant's "state of mind" changed from acting with
intent to acting with premeditation "at any time during the violent episode before he caused the
victim's death, including at any time during the strangulation.").

In fact, the record reflects that the trial court relied on Gunby, 282 Kan. 39, which was
also a strangulation case, in drafting the instruction. The State suggests the trial judge in this
45

case "believed his instruction was helpful to the jury to give them additional general rules that
were not arguing one side or another of the case."

As Appleby notes, however, in Gunby the additional language was used in answering a
question from the jury, not as part of the initial instruction to the jury. Appleby argues that
including the language in the initial instruction unduly favored the State's theory of the case.
More fundamentally, he argues it was per se error to deviate from the pattern instruction.

C. Deviation from Pattern Instruction

First, we address Appleby's general argument that it was inappropriate to deviate from a
pattern instruction. Contrary to the implication of this argument, it is not mandatory for Kansas
courts to use PIK instructions, although it is strongly advised. State v. Mitchell, 269 Kan. 349,
355-56, 7 P.3d 1135 (2000). As this court has stated:

"The pattern jury instructions for Kansas (PIK) have been developed by a knowledgeable
committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the
starting point in the preparation of any set of jury instructions. If the particular facts in a given
case require modification of the applicable pattern instruction or the addition of some instruction
not included in PIK, the trial court should not hesitate to make such modification or addition.
However, absent such need, PIK instructions and recommendations should be followed." State v.
Johnson, 255 Kan. 252, Syl. ¶ 3, 874 P.2d 623 (1994).

Hence, we find no merit to Appleby's argument that error occurred simply because the
trial court deviated from the pattern instruction.

D. Undue Emphasis

Second, we address Appleby's contention that the alteration to a PIK instruction may not
single out and give undue emphasis to particular evidence, even if it correctly states the law. To
support his argument, Appleby advances State v. Cathey, 241 Kan. 715, 741 P.2d 738 (1987),
disapproved on other grounds State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006).
46


In Cathey, the jury was instructed that evidence that a defendant had fled soon after the
commission of the alleged offense could be considered as evidence of guilt if the jury found the
defendant fled to avoid arrest and trial. The Cathey court observed that the instruction was a
correct statement of the law; evidence to establish the defendant's consciousness of guilt such as
flight, concealment, fabrication of evidence, or the giving of false information is admissible as
evidence in a criminal case. Cathey, 241 Kan. at 730. But the Cathey court held it was clearly
erroneous for the trial court to instruct the jury on the defendant's consciousness of guilt by flight
because in State v. McCorgary, 218 Kan. 358, 365, 543 P.2d 952 (1975), cert. denied 429 U.S.
867 (1976), the court directed that in subsequent trials the entire instruction on consciousness of
guilt should be omitted from the instructions to the jury; the Cathey court noted that the reason
the instruction had been disapproved is that it emphasized and singled out certain evidence
admitted at a criminal trial. Cathey, 241 Kan. at 730-31.

In responding to Appelby's reliance on Cathey, the State makes two arguments. First, the
State points out that Cathey was distinguished in State v. Williams, 277 Kan. 338, 85 P.3d 697
(2004). Second, the State argues Cathey can also be distinguished because the instruction in this
case merely provides a correct legal definition of the term "premeditation" rather than instructs
the jury how to apply the evidence as did the Cathey instruction.

Regarding the first point, the State is correct―Williams does distinguish Cathey. See
Williams, 277 Kan. at 352-53. However, the distinction made in Williams bolsters Appleby's
argument that there is a difference between emphasizing a theory when answering a question
from a jury and when giving the initial instructions.

In Williams, as in Gunby, the defendant argued that the trial court erred in responding to
the jury's question about premeditation. During its deliberations, the Williams jury asked: "How
long beforehand does the thought have to occur to make it premeditation?"; the word
"beforehand" was circled. Williams, 277 Kan. at 351. While the court responded that no
particular amount of time was required, the jury later sought a more detailed definition of
premeditation. It asked whether premeditation included a preconceived plan and asked for an
47

explanation of the relationship between intent and premeditation. The trial court responded with
a correct statement of law, which was taken from State v. Jamison, 269 Kan. 564, 571-72, 7 P.3d
1204 (2000).

Williams, citing Cathey, 241 Kan. at 730-31, argued that the trial court's second response,
without mention of his mental defect, emphasized the weight of the State's evidence of
premeditation and, by the same token, deemphasized the weight of his evidence of mental defect.
The Williams court found this reliance on Cathey to be faulty in that a response to an inquiry,
unlike an instruction, is formulated in response to the particular question asked by the jury. A
trial court's task in responding to an inquiry is to provide guidance with regard to the subject of
the inquiry. "If the subject of the inquiry involves primarily the evidence of one party," said the
Williams court, "the trial court may be hard pressed, in drafting a helpful response, to avoid
singling out and emphasizing the weight of any party's evidence." Williams, 277 Kan. at 353.
The Williams court concluded that the trial court appropriately gave a response that was
formulated to help the jury understand premeditation, which had been the specific question asked
by the jury. Furthermore, the Williams court stated that if the defendant had wanted the trial
court to remind the jury of the mental defect or disease defense, he could have made a request to
include the mental defect instruction among those the trial court asked the jury to reread. The
Williams court held that there was no abuse of discretion. Williams, 277 Kan. at 353. As
Appleby notes, however, the issue arises in this case because of the trial court's initial
instructions, not because of an answer to a jury question.

The State recognizes this difference but argues the trial court was stating the law without
emphasizing one side of the case or the other. To support this suggestion, the State cites State v.
Green, 245 Kan. 398, 781 P.2d 678 (1989), which in turn is based on State v. Beebe, 244 Kan.
48, 766 P.2d 158 (1988). The State argues these cases suggest that the rationale of Cathey does
not apply in this case because in Cathey, the instruction told the jury how to apply certain
evidence in assessing the defendant's guilt or innocence and in this case―as in Green and
Beebe―the instruction merely provided the legal definition of an element of the crime or factors
to be considered. We agree this is a valid distinction and, in this regard, find Beebe to be the
most analogous and helpful case for purposes of our analysis.
48


In Beebe, the defendant, who was appealing his jury trial convictions of first-degree
murder and aggravated kidnapping, argued the trial court erred in instructing the jury it could
infer malice, premeditation, and deliberation from the use of a deadly weapon in the killing. The
Beebe court concluded it was error to instruct that premeditation and deliberation could be
inferred from the use of a deadly weapon because that fact, standing alone, does not support such
an inference. Rather, a gun could be used to kill in first-degree murder, second-degree murder,
voluntary manslaughter, or involuntary manslaughter. Beebe, 244 Kan. at 58.

On the other hand, the portion of the instruction relative to the inference of malice was
upheld. Unlike the premeditation portion, the malice portion was an accurate statement of the
law, and the Beebe court pointed out that the instruction did not require or direct that malice be
found from the use of a deadly weapon. The court stated: "The use of a deadly weapon is one of
the evidentiary facts from which the jury could infer malice, but we conclude it is the better
practice not to give a separate instruction thereon." Beebe, 244 Kan. at 60.

As in Beebe, the jury instruction defining premeditation in this case contained valid
statements of Kansas law. While those statements of the law were added because of the facts of
the case, they did not direct the jury to a result. In other words, in contrast to the instruction at
issue in Cathey―where the instruction stated that evidence of flight could be considered as
evidence of guilt―there was no statement in the instruction at issue in this case that evidence of
a prolonged struggle or of strangulation could be considered as evidence of premeditation.
Rather, the added language explained the law recognizing that premeditation must be present
before the homicidal conduct but does not have to be present before a struggle begins.

Further, Appleby fails to show that the jury instruction in this case misled the jury or
prejudiced him. Certainly, the instruction included an explanation of premeditation that Appleby
would like to ignore; he would have liked the jury to have believed he had to have premeditated
the murder before he entered the pool pump room because there was no evidence to support such
a finding, while there was direct and overwhelming evidence of premeditation formed before
A.K.'s death. A.K. suffered a severe beating in which she sustained numerous cuts, bruises, and
49

lacerations. And the back of A.K.'s head was bashed open in two places. Blood from A.K. and
Appleby was found mixed together. There was evidence of both manual strangulation and
ligature strangulation. According to expert testimony, it would have taken approximately 10
minutes―and perhaps as many as 16 minutes―for Appleby to strangle A.K. There were some
periods when the force of strangulation was stopped, causing petechial hemorrhaging. The law
supports a conclusion that under those facts there could have been premeditation, and the
instruction merely informed the jury of that law. It did not direct them how to apply the
evidence or unduly emphasize the State's case.

While we again emphasize that trial courts should follow the pattern instructions
whenever possible, we find no error in the premeditation instruction given in this case.

ISSUE 5. HARD 50 SENTENCE: WEIGHING AGGRAVATING AND MITIGATING FACTORS


Next, Appleby argues the trial court abused its discretion in weighing the aggravating and
mitigating circumstances in determining whether to impose the hard 50 sentence. Specifically,
he contends that in weighing the circumstances, the court improperly viewed some of the
mitigating evidence as being a negative or aggravating factor.

When reviewing the imposition of a sentence of life imprisonment without the possibility
of parole for 50 years, an appellate court reviews the sentencing court's weighing of aggravating
and mitigating circumstances under an abuse of discretion standard. State v. Jones, 283 Kan.
186, 215, 151 P.3d 22 (2007); State v. Engelhardt, 280 Kan. 113, 144, 119 P.3d 1148 (2005).

Because the crime in this case occurred in June 2002, the applicable sentencing statute is
K.S.A. 2001 Supp. 21-4635(a), which provided in part:

"[I]f a defendant is convicted of the crime of capital murder and a sentence of death is not
imposed, . . . the court shall determine whether the defendant shall be required to serve . . . for
crimes committed on and after July 1, 1999, a mandatory term of imprisonment of 50 years or
sentenced as otherwise provided by law."

50

K.S.A. 2001 Supp. 21-4635(b) directs the sentencing court to consider evidence of
aggravating and mitigating circumstances in determining whether to impose a hard 50 sentence.
If the court finds that one or more of the aggravating circumstances enumerated in K.S.A. 2001
Supp. 21-4636 exist and that the existence of such aggravating circumstances is not outweighed
by any mitigating circumstances, the defendant "shall" receive the hard 50 sentence. K.S.A.
2001 Supp. 21-4635(c).

Here, the sentencing court found that one aggravating circumstance existed―the
defendant committed the crime in an especially heinous, atrocious, or cruel manner. K.S.A.
2001 Supp. 21-4636(f). As a basis for the aggravating circumstance, the court found (1) there
was infliction of mental anguish or physical abuse before the victim's death and (2) there were
continuous acts of violence before and continuing after the killing. K.S.A. 2001 Supp. 21-
4636(f)(3), (5). Appleby does not raise any arguments disputing these findings.

At sentencing, Appleby asserted two statutory mitigating circumstances. See K.S.A. 21-
4637 ("Mitigating circumstances shall include, but are not limited to" the listed factors.). First,
he argued he was under the influence of extreme mental and emotional disturbances at the time
of the incident. K.S.A. 21-4637(b). Second, Appleby contended his capacity to appreciate the
criminality of his conduct and conform his conduct to the requirements of the law was
substantially impaired because of his mental condition at the time of the incident. K.S.A. 21-
4637(f). He also presented nonstatutory mitigating evidence that he was exposed to violence,
substance abuse, lawless behavior, and abandonment during his youth.

At the sentencing hearing, Appleby presented the testimony of two experts, Dr. David
George Hough, a clinical psychologist, and Dr. Edward Robert Friedlander, a board-certified
anatomical and clinical pathologist.

Dr. Hough, who conducted psychological testing on Appleby, diagnosed him with
intermittent explosive disorder, which Dr. Hough explained, is recognized as a mental disease or
defect. According to Dr. Hough, such behavior is "driven by uncontrolled emotion, mainly
rage," and it is "manifested by such correlates as hyperarousal, a collapse of thinking or cognitive
51

mediation." Focusing on the crime in this case, Dr. Hough opined that "something got kindled
inside [Appleby], and what got kindled was this enormous rage that was way out of proportion to
anything [A.K.] could have said or done. . . . The best I can tell is that this was not planned or
organized or premeditated or rehearsed." Dr. Hough concluded that Appleby did not have
complete control of himself during the event.

Dr. Friedlander gave expert opinion testimony regarding the events in the pool pump
room. He did not view the crime scene or the autopsy, but he reviewed the report of Dr.
Handler, who performed the autopsy in this case, spoke with Dr. Handler, and reviewed some of
Dr. Handler's microscopic slides. Dr. Friedlander testified that in his opinion, A.K. was knocked
out when she fell to the ground after being struck only one or two times in the mouth. Dr.
Friedlander further opined that Appleby punched both of A.K.'s eyes while she was on the
ground, unconscious. And he testified that he did not see evidence of petechial hemorrhaging;
thus, one could not say with certainty how long A.K. had been strangled.

Appleby contends that the sentencing court did not give proper weight to his mitigating
circumstances and went so far as to use the mental disorder as an aggravating circumstance
against him in the balancing equation. He is specifically bothered by the court's asking at the
sentencing hearing why the mental disorder was not an aggravating circumstance: "If [Appleby]
has intermittent explosive disorder and is prone to strong outpourings of rage and behavior far
out of proportion to anything that occurs to him, why is that a reason for a lesser sentence instead
of a greater sentence?" Defense counsel explained immediately, however, that it would show
"he was not necessarily in control of his actions like the rest of us would be." The court then
pointed to the jury's finding that the crime was premeditated. The court was clearly trying to
understand how the two concepts could coexist.

Appleby also points to this statement in the court's sentencing memorandum: "To the
extent that the defendant has 'intermittent explosive disorder,' as testified to by Dr. George
Hough, that does not suggest a need to lock the defendant up for a shorter, rather than a longer,
period." But Appleby fails to look at the surrounding context. In the preceding sentences, the
court states that it gave "due consideration" to the mitigating circumstances presented by the
52

defense, including the evidence, affidavits, and letters submitted by the defense. Then, in the
sentence on which Appleby focuses, the court's statements regarding Dr. Hough's testimony
suggest that the court was looking at the evidence as presented―mitigating circumstances. In
the next sentence, the court indicates that Dr. Hough's testimony failed to explain the defendant's
premeditated conduct, despite ample evidence to support the jury's verdict. Nowhere did the
court say or even imply that Appleby was going to receive a longer sentence due to his alleged
mental defect.

Appleby contends that the present case is similar to Miller v. State, 373 So. 2d 882, 885
(Fla. 1979), in which the Florida Supreme Court vacated the trial court's sentence of death
because the trial court "considered as an aggravating factor the defendant's allegedly incurable
and dangerous mental illness." In addition, Appleby cites Zant v. Stephens, 462 U.S. 862, 77 L.
Ed. 2d 235, 103 S. Ct. 2733 (1983), which expressly left open the possibility that in a "weighing"
state, infection of the process with an invalid aggravating factor might require invalidation of a
death sentence. Both of these cases are inapplicable; in this case, the trial court considered the
factor as a mitigator and did not improperly consider the factor as an aggravating circumstance.

The final authority advanced by Appleby is State v. Legendre, 522 So. 2d 1249 (La. App.
1988), where the defendant was convicted of second-degree battery and received 5 years of hard
labor, the maximum sentence. The evidence supported the conclusion that the defendant had the
necessary specific intent to inflict serious bodily injury on the victim. According to Louisiana
law, maximum sentences could "be justified only in cases classified as 'extreme' by the factual
circumstances of the offense and the apparent [dangerousness] of the defendant." Legendre, 522
So. 2d at 1252.

The sentencing court had evidence that the defendant was a chronic paranoid
schizophrenic, and Louisiana case law indicated that mental illness should be used as a
mitigating circumstance. See Legendre, 522 So. 2d at 1252. The Louisiana appellate court
found that the trial court did not consider the defendant's mental condition a mitigating
circumstance in imposing the sentence. Instead, the trial court seemed to consider it an
aggravating circumstance by stating that the defendant's main problem was "'his lack of insight
53

to his illness and his refusal to take prescribed medication away from the hospital.'" Legendre,
522 So. 2d at 1253. The case was remanded for resentencing, the appellate court holding that
when a person with a recognized, diagnosed mental illness is convicted of crimes, that condition
should be considered to mitigate the type and length of sentence imposed on the offender, "even
if he has been ruled legally sane." Legendre, 522 So. 2d at 1253.

The laws in Legendre are inapplicable to the present case. Appleby essentially argues
that the court failed to properly and carefully consider the mitigating evidence and, instead,
focused only on evidence supporting the aggravating circumstance. But the sentencing court's
comments clearly show that the court did properly consider and weigh the defendant's mitigators.

In this case, the trial court simply found that the State's aggravating circumstance
outweighed the defendant's mitigating circumstances. It is well established that "'[w]eighing
aggravating and mitigating circumstances is not a numbers game. "One aggravating
circumstance can be so compelling as to outweigh several mitigating circumstances"' and vice
versa. [Citations omitted.]" Engelhardt, 280 Kan. at 144.

Appleby has failed to establish an abuse of discretion.

ISSUE 6. HARD 50 SENTENCE: CONSTITUTIONALITY

Appleby contends that the hard 50 sentencing scheme is unconstitutional because it
permits the sentencing court to find facts that enhance the available sentencing range, utilizing a
preponderance of the evidence standard, in violation of Apprendi v. New Jersey, 530 U.S. 466,
147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).

This court has repeatedly rejected similar arguments challenging the constitutionality of
the hard 40/hard 50 sentencing scheme and held our hard 50 scheme is constitutional. State v.
Johnson, 284 Kan. 18, 22-23, 159 P.3d 161 (2007), cert. denied, 169 L. Ed. 2d 737 (2008); see
also State v. Warledo, 286 Kan. 927, 954, 190 P.3d 937 (2008) (reaffirming State v. Conley, 270
Kan. 18, 11 P.3d 1147 [2000], citing Johnson with approval, and noting that the United States
Supreme Court has not "altered decisions in which it recognized that the [Apprendi] prohibition
54

does not apply when considering the minimum sentence to be imposed"); State v. Albright, 283
Kan. 418, 424, 153 P.3d 497 (2007). Appleby presents no persuasive reason to abandon this
long line of precedent.

Affirmed in part, reversed in part, and sentence vacated in part.

McFARLAND, C.J., not participating.
DANIEL L. LOVE, District Judge, assigned.

JOHNSON, J., concurring in part and dissenting in part: Beginning with the suppression
issue, I first acknowledge the majority's thorough and thoughtful analysis of the more recent
post-Miranda decisions. In my view, such a detailed synthesization of the cases is testament to
the manner in which appellate courts have worked diligently and creatively to unnecessarily
complicate, and thus emasculate, the straight-forward directive, pronounced in Miranda some 43
years ago and quoted by the majority, that "a pre-interrogation request for a lawyer . . .
affirmatively secures [the] right to have one." Miranda v. Arizona, 384 U.S. 436, 470, 16 L. Ed.
2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966). Nevertheless, even in the current
environment, I would find that Appleby effectively invoked his Fifth Amendment right to
counsel.

First, I would not require a detainee to possess the knowledge of a constitutional scholar
well-versed in Fifth and Sixth Amendment jurisprudence. Rather, I would view the
circumstances from the perspective of an objectively reasonable layperson interacting with an
objectively reasonable law enforcement officer. In that context, even though only the officer
knew that the arrest was pretextual, both could not have questioned that Appleby was actually in
custody on the 6-year-old Connecticut charges, so as to trigger the protections applicable to
custodial interrogations.

In that setting, Appleby asked Detective Jewiss about consulting with an attorney not
once, but four times. The trial court found that Appleby had asserted his right to an attorney,
albeit perhaps only for Sixth Amendment purposes. The majority questions, but does not decide,
55

whether the wording of Appleby's requests was sufficient to support the trial court's finding.
Without belaboring the point, I would simply submit that one might expect a detainee, who has
been confronted in his home by a multitude of armed officers, arrested, and taken to jail, to
propound a request for an attorney in a most polite and nonconfrontational manner. Moreover,
Appleby's persistence in making a number of requests in a short period of time belies any
equivocation as to his desire to have an attorney present or as to Detective Jewiss' understanding
of that desire.

Granted, the majority discards two of Appleby's requests; one because it was made prior
to his receiving the Miranda warnings and one because it was tied to the execution of the DNA
search warrant. Even without those requests, however, Appleby still asked about consulting with
an attorney twice after receiving the following Notice of Rights:

"1. You are not obligated to say anything, in regard to this offense you are charged with but may
remain silent.
"2. Anything you may say or any statements you make may be used against you.
"3. You are entitled to the services of an attorney.
"4. If you are unable to pay for the services of an attorney you will be referred to a Public
Defender Office where you may request the appointment of an attorney to represent you.
"5. You may consult with an attorney before being questioned, you may have an attorney present
during questioning and you can not be questioned without your consent. X [Initialed:] BA
"6. (Not applicable if you were arrested on a Superior Court Warrant which specified that bail
should be denied or which ordered that you be brought before a clerk or assistant clerk of the
Superior Court.)
You have a right to be promptly interviewed concerning the terms and conditions of your release
pending further proceedings, and upon request, counsel may be present during this interview."

A reasonably intelligent person could not read the plain language of paragraph 3 of that
form and know, or even guess, that the "services of an attorney" to which he or she is facially
unequivocally entitled are, as a matter of law, divided into two categories, i.e., Fifth Amendment
services and Sixth Amendment services. Accordingly, a detainee would need to possess
excellent clairvoyance―or astute constitutional acumen―to ascertain that, if there is any way in
which the detainee's request for an attorney might be construed as being for Sixth Amendment
56

purposes, then the right would not actually accrue or the request become effective until some
undisclosed later time, after the detainee has been subjected to a custodial interrogation.

Likewise, the language of paragraph 5 would not, on its face, be confusing to a layperson.
The detainee may consult with an attorney "before being questioned"; then the detainee may
have an attorney present "during questioning"; but ultimately, the detainee may withhold consent
to be questioned at all. However, from a temporal standpoint, a detainee dare not take his or her
stated rights literally at the risk of being legally sandbagged. Under the authority cited by the
majority, the right to consult with an attorney may be validly asserted only when authorities are
conducting a custodial interrogation or when such interrogation is imminent. See 2 LaFave,
Israel, King & Kerr, Criminal Procedure § 6.9(g), p. 869 n.200 (3d ed. 2007). In other words,
contrary to the plain language in the Notice of Rights, an attempt to exercise of the right to
"consult with an attorney before being questioned" will be deemed invalid as anticipatory, unless
it is asserted during questioning.

Appleby faced one more explosive in the minefield that lay between the receipt of the
Notice of Rights and the exercise of those rights. The form told Appleby that he could have an
attorney present during questioning. Detective Jewiss propounded questions to Appleby during
the book-in process, and Appleby twice asked about consulting an attorney while answering
those questions. The majority flicks away that circumstance as not being an "interrogation,"
noting parenthetically that the courts have recognized a "'routine booking question'" exception to
Miranda for questions designed to obtain the "'"biographical data necessary to complete booking
or pretrial services."'" Pennsylavania v. Muniz, 496 U.S. 582, 601, 110 L. Ed. 2d 528, 110 S. Ct.
2638 (1990).

How was Appleby to know of this court-made exception? The Notice of Rights form did
not suggest any exceptions. Detective Jewiss' self-serving testimony that he advised Appleby
that someone else would be talking to him about the case does not change the fact that Detective
Jewiss was "questioning" Appleby, even if it was not a legal interrogation for Miranda purposes.
Moreover, the distinction between booking questions and case interrogation is less defined in this
case, given that part of the biographical data, specifically Appleby's use of an alias, was to be an
57

integral part of the prosecution. Nevertheless, I reject the notion that Appleby's invocation of his
right to an attorney, made while he was in custody and being questioned by a law enforcement
officer, was an anticipatory request that did not manifest an intent to have an attorney present
during questioning, as he had been advised was his right.

Under the circumstances of this case, I would find that Appleby effectively invoked his
Fifth Amendment right to counsel with respect to the Connecticut charges and in conformance
with the Notice of Rights he had been given in that case. As the majority notes, McNeil v.
Wisconsin, 501 U.S. 171, 176-77, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991), instructs us that
Appleby could not thereafter be approached for further interrogation by the Kansas detectives.
Accordingly, I would reverse the denial of the suppression motion.

I concur with the majority's result on the other issues. However, I feel compelled to
voice my concerns, or perhaps merely display my lack of comprehension, on the stated law
applicable to the double jeopardy and premeditation issues.

The majority notes that a constitutional claim of double jeopardy arises when a defendant
is actually punished more than once for committing one offense. It then turns to the State v.
Schoonover, 281 Kan. 453, 133 P.3d 48 (2006), paradigm of applying the strict-elements test to a
unitary conduct, multiple-description scenario to determine what constitutes one offense. The
rationale for that approach is to "implement the legislative declaration in [K.S.A. 21-3107] that a
defendant may be convicted of two crimes arising from the same conduct unless one is a lesser
included offense of the other." Schoonover, 281 Kan. at 498. In other words, if a person
commits a single act, rather than two acts of discrete conduct, that person may be punished as
many times as the legislature may dictate through its definition of the elements of various crimes.

In my view, that is tantamount to letting the tail wag the dog in the arena of constitutional
jurisprudence. Under the separation of powers doctrine, the judiciary is to interpret the
Constitution, i.e., determine whether a person is being unconstitutionally subjected to multiple
punishments, rather than abdicating that responsibility to the legislature. To the contrary, by
58

developing a test that implements K.S.A. 21-3107, we have permitted the legislature to tell the
judiciary that the prohibition against multiple punishments guaranteed by the Double Jeopardy
Clauses of our state and federal Constitutions simply does not apply in this state, unless perhaps
a lesser included offense is involved. For instance, the legislature could effect a multiple
punishment in nearly every speeding or other traffic infraction case by creating the crime of
possessing a motor vehicle with the intent to use it to commit a traffic offense. See State v.
Cooper, 285 Kan. 964, Syl. && 3, 4, 179 P.3d 439 (2008) (offense of manufacturing
methamphetamine does not have the same elements as offense of using drug paraphernalia to
manufacture methamphetamine; multiple punishments for the same conduct is constitutional so
long as the crimes have different elements). I simply cannot accept that constitutional rights are
to be determined by the legislature.

Finally, tilting at one last windmill, I must express my frustration with the complete
adulteration of the rather simple concept of premeditation. In my view, that concept was aptly
described in a portion of the definition proffered in State v. Gunby, 282 Kan. 39, Syl. ¶ 9, 144
P.3d 647 (2006), which stated that "[p]remeditation is the process of thinking about a proposed
killing before engaging in the homicidal conduct." Unfortunately, that case, and others, have
gone further by opining that premeditation does not have to be present before the commencement
of a fight, quarrel, or struggle and declaring that manual strangulation is strong evidence of
premeditation. 282 Kan. 39, Syl. ¶ 9. Apparently, the suggestion is that, even though a killer
may commence the homicidal conduct of manual strangulation without having thought over the
matter beforehand, he or she may be deemed to have premeditated the killing if there is a
possibility that the killer ruminated upon what he or she was doing during the murderous act, but
before it actually caused the victim's death. To the contrary, I would find that premeditation, as
the very word contemplates, requires that the matter be thought over before commencement of
the homicidal conduct, whether the killing method be shooting, stabbing, strangulation, or some
other means. Nevertheless, I concur with the majority in this case because of the evidence
supporting two instances of strangulation, which would allow for a period of time to premeditate
the killing before commencing the second, fatal strangulation.