State v. Reginald Carr

1



IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 90,044

STATE OF KANSAS,
Appellee,

v.

REGINALD DEXTER CARR, JR.,
Appellant.


SYLLABUS BY THE COURT

1.
The Sixth Amendment to the United States Constitution guarantees an accused in
all serious criminal prosecutions the right to trial by an impartial jury. This protection is
incorporated into and made applicable to the states through the due process provision of
the Fourteenth Amendment. The Kansas Constitution includes a similarly worded
guarantee for its citizens in Section 10 of the Bill of Rights, which recognizes a
defendant's right to a speedy and public trial by an impartial jury of the county or district
in which the offense is alleged to have been committed. We have analyzed the state
constitutional provision in the same way as the federal constitutional provision.

2.
K.S.A. 22-2616(1) gives Kansans a vehicle to obtain a change of venue to prevent
a local community's hostility or preconceived opinion on a defendant's guilt from
hijacking his or her criminal trial.

2



3.
Seven factors are considered relevant to evaluate whether the existence of
presumed prejudice demands a change of venue: (1) media interference with courtroom
proceedings; (2) the magnitude and tone of the coverage; (3) the size and characteristics
of the community in which the crime occurred; (4) the amount of time that elapsed
between the crime and the trial; (5) the jury's verdict; (6) the impact of the crime on the
community; and (7) the effect, if any, of a codefendant's publicized decision to plead
guilty.

4.
On appeal, a claim of presumed prejudice is judged by a mixed standard of review.
A district judge's findings of fact on the seven relevant factors considered in determining
whether presumed prejudice demands a change of venue are examined to determine
whether they are supported by substantial competent evidence in the record. The district
court's weighing of the factors and ultimate legal conclusion on whether presumed
prejudice has been established is reviewed de novo.

5.
In this case, the district judge did not err by refusing defendant's motions to
transfer venue out of Sedgwick County on the basis of presumed prejudice.

6.
In reviewing for actual prejudice from refusal to change venue, an appellate court
examines whether the district judge had a reasonable basis for concluding that the jurors
selected could be impartial. The crucible for determination of actual prejudice is voir
dire. The judge must review the media coverage and the substance of the jurors'
statements at voir dire to determine whether a community-wide sentiment exists against
3



the defendant. Negative media coverage by itself is insufficient to establish actual
prejudice.

7.
A district judge's decision on actual prejudice is reviewed under an abuse of
discretion standard.

8.
In this case, all of defendant's jurors who had formed an opinion on guilt said
during voir dire they could put their opinions aside. These voir dire responses gave the
district judge a reasonable basis for ruling that no actual prejudice required a venue
change. This case was not so extreme that the jurors' statements about their ability to be
impartial cannot be credited.

9.
Under K.S.A. 22-2616(1), the burden is on the defendant to show prejudice in the
community significant enough that there is a reasonable certainty he or she cannot obtain
a fair trial without a venue change.

10.
Factors to be considered on whether a venue change is necessary under the Kansas
statute include: (1) the particular degree to which the publicity circulated throughout the
community; (2) the degree to which the publicity or that of a like nature circulated to
other areas to which venue could be changed; (3) the length of time which elapsed from
the dissemination of the publicity to the date of trial; (4) the care exercised and the ease
encountered in the selection of the jury; (5) the familiarity with the publicity complained
of and its resultant effects, if any, upon the prospective jurors or the trial jurors; (6) the
challenges exercised by the defendant in the selection of the jury, both peremptory and
4



for cause; (7) the connection of government officials with the release of the publicity; (8)
the severity of the offense charged; and (9) the particular size of the area from which the
venire is drawn.

11.
The district judge did not abuse his discretion by denying defendant's motions for
change of venue under K.S.A. 22-2616(1).

12.
Although two or more defendants may be charged in the same complaint,
information, or indictment if they are alleged to have participated in the same act or
transaction or in the same series of acts or transactions constituting the charged crime or
crimes, the court may order a separate trial for any one defendant when requested by the
defendant or the prosecutor. The decision whether to sever a trial is one within the trial
court's discretion.

13.
A single trial of multiple defendants may serve judicial economy and ensure
consistent verdicts, but the right of a defendant to a fair trial must be the overriding
consideration. Five factors are useful for an appellate court to consider in determining
whether there is sufficient prejudice to mandate severance: (1) whether the defendants
have antagonistic defenses; (2) whether important evidence in favor of one of the
defendants which would be admissible on a separate trial would not be allowed on a joint
trial; (3) whether evidence incompetent as to one defendant and introducible against
another would work prejudicially to the former with the jury; (4) whether the confession
by one defendant, if introduced and proved, would be calculated to prejudice the jury
against the other or others; and (5) whether one of the defendants who could give
5



evidence for the whole or some of the other defendants would become a competent and
compellable witness on the separate trials of such other defendants.

14.
A party moving for severance has the burden to demonstrate actual prejudice to
the district court judge, who has a continuing duty at all stages of a trial to grant
severance if prejudice does appear.

15.
On appeal from a denial of severance, the party claiming error has the burden to
establish a clear abuse of discretion by the trial judge. Once abuse of discretion is
established, the party benefitting from the error bears the burden of demonstrating
harmlessness.

16.
The district judge abused his discretion in this case by repeatedly refusing to sever
the defendant's trial from that of his codefendant brother. However, because of the
overwhelming independent evidence presented by the State, the judge's failure to sever
the guilt phase of the trial was harmless error.

17.
The district judge in this case did not abuse his discretion by denying defendant's
motion to sever noncapital counts from capital counts. Similarity of punishment is not an
indispensable attribute of crimes of same or similar character under K.S.A. 22-3202(1).

18.
K.S.A. 22-3410(2)(i) permits a district judge to remove a prospective juror for
cause when his or her "state of mind with reference to the case or any of the parties"
6



persuades the judge that there is doubt he or she can act impartially. A criminal defendant
has the right to an impartial jury drawn from a venire that has not been tilted in favor of
capital punishment by selective prosecutorial challenges for cause. But this right is
balanced against the State's strong interest in seating jurors who are able to apply the
sentence of capital punishment within the framework provided for by the federal
Constitution and state law.

19.
In this case, the district judge's excuse of prospective juror M.W. for cause was
fairly supported by the record and not an abuse of discretion under K.S.A. 22-3410(2)(i).
Eleven other prospective jurors to whom defendant and his codefendant brother compare
M.W. expressed a willingness to follow the law, while M.W. did not.

20.
The same standard of review and legal framework applicable to a district judge's
decision to excuse a prospective juror who cannot set aside his or her objection to the
death penalty applies equally to decisions not to excuse prospective jurors challenged for
cause based on their inability to consider a sentence other than death.

21.
The district judge's refusal to excuse four prospective jurors for cause was fairly
supported by the record and not an abuse of discretion under K.S.A. 22-3410(2)(i). These
four prospective jurors expressed a willingness to consider and give effect to mitigating
evidence.

22.
Section 7 of the Kansas Constitution Bill of Rights provides that "[n]o religious
test or property qualification shall be required for any office of public trust." This section
7



does not provide any greater limitation than already provided under K.S.A. 43-156,
which provides that "[n]o person shall be excluded from service as a grand or petit juror
in the district courts of Kansas on account of . . . religion . . . ."

23.
K.S.A. 43-156 is in some tension with K.S.A. 22-3410(2)(i)—which provides that
a prospective juror may be challenged for cause as unqualified to serve when he or she is
partial or biased—because K.S.A. 22-3410(2)(i) requires a prospective juror who can
never participate in imposition of the death penalty to be excused for cause as partial,
even though his or her scruples have a basis in a religious code. Jurors cannot be
discriminated against on the basis of their religious belief or lack of belief, but they can
be excluded from jury service when their belief or nonbelief makes it impossible for them
to act in conformance with the signature requirement of that service: impartiality under
the rule of law.

24.
In this case, the district judge did not violate Section 7 of the Kansas Constitution
Bill of Rights or K.S.A. 43-156 when he excused prospective jurors for cause because
they had said their religious beliefs would prevent them from behaving impartially.

25.
A district judge's handling of a challenge to a criminal defendant's peremptory
strike under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986),
involves three steps, each subject to its own standard of review on appeal. Under the first
step, the party challenging the strike must make a prima facie showing that the other
party exercised a peremptory challenge on the basis of race. Appellate courts utilize
plenary or unlimited review over this step. If a prima facie case is established, the burden
shifts to the party exercising the strike to articulate a race-neutral reason for striking the
8



prospective juror. This reason must be facially valid, but it does not need to be persuasive
or plausible. The reason offered will be deemed race-neutral unless a discriminatory
intent is inherent in the explanation. The opponent of the strike continues to bear the
burden of persuasion. The scope of review on a district judge's ruling that the party
attempting the strike has expressed racially neutral reasons is abuse of discretion. In the
third step, the district judge determines whether the party opposing the strike has carried
its burden of proving purposeful discrimination. This decision is reviewed under an abuse
of discretion standard.

26.
The district judge erred in this case by granting the State's challenge under Batson
v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), to the defendants'
peremptory strikes of the eventual presiding juror by failing to perform the necessary
three steps of analysis.

27.
Each state is free to determine whether a district judge's good faith error in
denying a criminal defendant's peremptory challenge under Batson v. Kentucky, 476 U.S.
79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), is subject to review for harmlessness. In
Kansas, review for harmless error applies to such error, and the district judge's error in
this case does not require reversal of all of defendant's convictions, standing alone.

28.
In this case, because defendants did not object to testimony from a felony-murder
victim's neighbor and husband about the victim's out-of-court statements to them, any
issue based on that testimony under the Confrontation Clause or Crawford v. Washington,
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), was not preserved for appeal.
Any error in admission of testimony from law enforcement witnesses about the victim's
9



statements that was subject to defense objection based on the Confrontation Clause or
Crawford, was harmless because the testimony was largely repetitive of the testimony
admitted without objection.

29.
When the sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. A conviction for felony murder cannot stand
without sufficient evidence of one of the enumerated inherently dangerous felonies listed
in K.S.A. 21-3436.

30.
The jury in this case was permitted to consider evidence against defendant on
joined charges when deciding whether to find him guilty or not guilty on a charge of
felony murder involving a different victim at a different time and place. Some of the
evidence in support of the joined charges also was applicable to the felony murder and
made the State's evidence on that crime sufficient to convince a rational factfinder of
defendant's guilt beyond a reasonable doubt.

31.
Under State v. Todd, 299 Kan. 263, ___, 323 P.3d 829 (2014), and State v.
Gleason, No. 97,296, 299 Kan. ___, ___ P.3d ___ (filed July 18, 2014) (slip op. at 42),
defendant was not entitled to lesser included instructions for felony murder because a
subsequent statutory amendment abolishing any lesser included offenses for that crime
can be applied to defendant without violation of the Ex Post Facto Clause or due process.

10



32.
In this case, the jury instructions on capital murder under K.S.A. 21-3439(a)(4)
failed to state the elements of the crime because they relied on sex-crime instructions
defining the underlying sex crime for a victim other than the victim of the capital murder.
In addition, three of the four counts of capital murder under K.S.A. 21-3439(a)(6) were
multiplicitous with the first count. Under Stromberg v. California, 283 U.S. 359, 51 S. Ct.
532, 75 L. Ed. 1117 (1931), and Yates v. United States, 354 U.S. 298, 77 S. Ct. 1064, 1 L.
Ed. 2d 1356 (1957), the combination of these errors requires reversal of three of the
defendant's four convictions of capital murder.

33.
The defendant's appellate claim that a special unanimity instruction was required
because of a multiple acts problem on the capital murders charged under K.S.A. 21-
3439(a)(4) is moot.

34.
The defendant's appellate claim that he is entitled to reversal of his convictions for
sex offenses on which capital charges under K.S.A. 21-3439(a)(4) were based is moot.

35.
In this case, the State's evidence against the defendant on aggravated burglary,
viewed in the light most favorable to the prosecution, was sufficient to support a
reasonable factfinder's verdict of guilty.

36.
Although it is possible to prosecute a male as a principal or an aider or abettor for
causing a rape or attempted rape under Kansas law, the State did not succeed in charging
those crimes here; and the defendant's convictions based on coerced victim-on-victim sex
11



acts are void because the amended complaint failed to endow the district court with
subject matter jurisdiction.

37.
The State's evidence against the defendant as an aider and abettor of a victim's
digital penetration of herself, viewed in the light most favorable to the prosecution, was
sufficient to support a reasonable factfinder's guilty verdict on rape.

38.
In this case, the defendant's conviction as an aider and abettor of penile rape of a
victim immediately after digital rape of the same victim rests on unitary conduct and
must be reversed as multiplicitous.

39.
In this case, abundant evidence supported the defendant's conviction as an aider
and abettor of his codefendant's sex crimes. It is not necessary that an aider and abettor be
contemporaneously aware that his or her principal is committing a crime that the aider
and abettor has encouraged or facilitated. It also is not necessary that an aider and abettor
be in the immediate vicinity of the principal and the victim during commission of the
crime.

40.
Although omission of a defendant's name from a charging document may pose a
subject matter jurisdiction problem, the defendant's name was included in Count 43
charging attempted rape in this case. Any technical defect in this charge did not deprive
the district court of subject matter jurisdiction.

12



41.
Kansas' third-party evidence rule does not prevent a criminal defendant from
introducing circumstantial evidence of an uncharged person's guilt simply because the
State's case against the defendant includes direct evidence. The district judge abused his
discretion in excluding relevant evidence of a third party's guilt proffered by the
defendant in the form of the defendant's own testimony about observations of the third
party, including the third party's possession of victims' stolen property.

42.
The hearsay rule is subject to a K.S.A. 60-460(j) exception for out-of-court
statements against the declarant's interest. The district judge abused his discretion in
excluding the defendant's testimony about statements made by his codefendant brother
that, based on the record before this court, qualified as declarations against interest.

43.
A criminal defendant is entitled to a meaningful opportunity to present a complete
defense, but protection of this fundamental right is tempered by sensible control of the
criminal trial process, including procedural rules and evidentiary rulings that serve
legitimate interests. When a district judge excludes relevant, admissible, and
noncumulative evidence integral to a defendant's theory of defense, without furthering a
legitimate interest, the right to present a defense is violated.

44.
The district judge abused his discretion by excluding evidence to support the
defendant's defense under a misinterpretation of the third-party evidence rule and by
refusing to apply a K.S.A. 60-460(j) hearsay exception, which violated the defendant's
right to present a defense. However, such a constitutional error, even when it implicates a
defendant's right to testify, is subject to evaluation for harmlessness.
13




45.
Given the strength of the State's case against the defendant on the record before
the court, the district judge's violation of the defendant's right to present a defense was
not reversible, standing alone.

46.
The district judge in this case did not err by admitting evidence of the results of
mitochondrial DNA testing of four hairs found at the crime scene, which narrowed the
list of contributors to maternal relatives of the defendant. This was circumstantial
evidence of the defendant's presence at the scene, even though more precise nuclear DNA
analysis of one hair was admitted at trial and implicated his codefendant brother and not
the defendant. The district court also need not have excluded the mitochondrial DNA
evidence because the risk of undue prejudice outweighed its probative value.

47.
Under K.S.A. 2013 Supp. 21-5402(d), felony murder is not a lesser included
offense of capital murder. Application of this statute to a defendant whose direct appeal
was pending at the time the statute took effect does not violate the Ex Post Facto Clause
or due process.

48.
A district judge does not abuse his or her discretion by denying a mistrial because
of an alleged discovery violation by the State, when the State was unaware of new
medical evidence linking the defendant and a victim until midtrial and disclosed the
evidence to the defense as soon as it surfaced. Under such circumstances, there is no
discovery violation that amounts to a fundamental failure in the proceedings.

14



49.
It is an abuse of discretion for a district judge to automatically exclude expert
testimony on the reliability of eyewitness identifications. However, on the entire record in
this case, there is no reasonable probability the judge's error affected the outcome of the
trial of the defendant.

50.
A jury view is nonevidentiary and not a critical stage of a criminal prosecution
requiring the presence of a criminal defendant; neither the defendant's statutory nor his
constitutional right to be present at all critical stages of the proceedings against him was
violated by the judge's failure to ensure his presence during the jury view in this case.

51.
A jury view may occur outside of the presence of a criminal defendant's counsel
without violating the Sixth Amendment or K.S.A. 22-4503.

52.
Given the cautionary eyewitness identification instruction's inclusion of "any other
circumstances that may have affected the accuracy of the . . . identification" as a catch-all
factor the jury was permitted to consider, there was no error in the judge's omission of the
defendant's requested language, "the race of the witness and the race of the person
observed." Under the catch-all factor's broad language, counsel for the defense were free
to argue any factor the evidence would support.

53.
In this case, the district judge committed error by giving both PIK Crim 3d 54.05
(Responsibility for Crimes of Another) and PIK Crim. 3d 54.06 (Responsibility for
Crimes of Another—Crime Not Intended), when the defendant was charged with specific
15



intent crimes demanding proof of premeditation. The error does not merit reversal as
clear error because of the strength of the State's premeditation case.

54.
A jury instruction stating "[a] person who, either before or during its commission,
intentionally aids, abets, advises, or counsels another to commit a crime with intent to
promote or assist in its commission is criminally responsible for the crime committed
regardless of the extent of the person's participation, if any, in the actual commission of
the crime" is adequate to communicate that the aider and abettor must personally possess
the same specific intent as the principal. There was no error in this case attributable to the
district judge's failure to tell the jury explicitly that the State must prove an aider and
abettor's premeditation in order to convict him of capital murder or attempted first-degree
premeditated murder.

55.
Omission of "by such person as a probable consequence of committing or
attempting to commit the crime intended" from the end of PIK Crim. 3d 54.06 does not
result in clear error because of a failure to communicate a need for causation and a
measurement of probability.

56.
A prosecutor is permitted wide latitude in discussing the evidence. The
prosecutor's first few dramatic sentences in her closing argument on this 58-count case
did not exceed the wide latitude by inviting jurors to put themselves in the position of the
victims.

16



57.
Cumulative error can require reversal of all of a criminal defendant's convictions
even when one error standing alone does not. Cumulative error does not require reversal
of all of the defendant's convictions in this case.

58.
The Eighth Amendment to the United States Constitution requires a jury to make
an individualized capital sentencing determination. It does not categorically mandate
separate penalty phase proceedings for each codefendant in a death penalty case. The
Eighth Amendment was violated in this capital case when the district judge refused to
sever the penalty phase of the proceedings; because the codefendants' mitigation cases
were at least partially antagonistic; because evidence admitted in the joint penalty phase
may not have been admitted in a severed proceeding; and because mitigating evidence as
to one codefendant was prone to be used by the jury as improper, nonstatutory
aggravating evidence against the other.

59.
The standard of review and the ultimate question that must be answered with
regard to whether error in the penalty phase of a capital trial was harmless is whether the
court is able to find beyond a reasonable doubt that the error, viewed in the light of the
record as a whole, had little, if any, likelihood of changing the jury's ultimate conclusion
regarding the weight of the aggravating and mitigating circumstances. The test is not
whether a death penalty sentence would have been imposed but for the error; instead the
inquiry is whether the death verdict actually rendered in this trial was surely
unattributable to the error. In this case, the judge committed reversible error by refusing
to sever the penalty phase of the codefendants' trial.

17



60.
The State's compliance with K.S.A. 21-4624(a) provides a capital murder
defendant with constitutionally sufficient notice of aggravating factors.

61.
K.S.A. 2013 Supp. 21-6624's aggravators—that the defendants knowingly or
purposely killed or created a great risk of death to more than one person; that they
committed the crime for themselves or for another for the purpose of receiving money or
any other thing of monetary value; that they committed the crime in order to avoid or
prevent a lawful arrest or prosecution; and that they committed the crime in an especially
heinous, atrocious, or cruel manner—are adequate to channel the jury's discretion in the
penalty phase of a capital case.

62.
Due process requires a reasonably accurate and complete record of the trial
proceeding in order to allow meaningful and effective appellate review. And, when a
claim appears to have a substantial foundation based on the available record but the claim
cannot be reviewed because of the incomplete or inaccurate transcript, the proper remedy
is reversal. Still, a defendant does not have a constitutionally protected right to a totally
accurate transcript of the criminal proceedings. A record that is incomplete but that
involves no substantial or significant omissions does not require reversal. Appellants
seeking reversal on the grounds that they are denied due process because of an inaccurate
or incomplete transcript must make the best feasible showing possible that a complete
and accurate transcript might have changed the outcome of the appeal. If no such
showing is made, no relief is appropriate.

18



63.
K.S.A. 21-4624(c) provides for a relaxed evidentiary standard during the penalty
phase of a capital proceeding:

"In the sentencing proceeding, evidence may be presented concerning any matter
that the court deems relevant to the question of sentence and shall include matters relating
to any of the aggravating circumstances enumerated in K.S.A. 21-4625 and amendments
thereto and any mitigating circumstances. Any such evidence which the court deems to
have probative value may be received regardless of its admissibility under the rules of
evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay
statements. Only such evidence of aggravating circumstances as the state has made
known to the defendant prior to the sentencing proceeding shall be admissible, and no
evidence secured in violation of the constitution of the United States or of the state of
Kansas shall be admissible."

64.
K.S.A. 21-4624(c)'s relaxed evidentiary standard of admission is consistent with
the United States Supreme Court's all relevant evidence doctrine, which demands that a
capital sentencing jury have before it all possible relevant information about the
individual defendant whose fate it must determine. It provides for an individualized
inquiry and does not limit the discretion of the sentencer to consider relevant
circumstances offered by the defendant. K.S.A. 21-4624(c) provides that only relevant
evidence is to be admitted, thus assuring the evidence actually has probative value.
Moreover, evidence secured in violation of the United States Constitution or the Kansas
Constitution is inadmissible. The relaxed evidentiary standard is sufficient to protect the
defendant's right to a fair trial and does not violate either the United States or Kansas
Constitutions.

19



65.
The Sixth Amendment Confrontation Clause and Crawford v. Washington, 541
U.S. 36, 56, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), apply in the penalty phase of a
capital case and control over any contrary interpretation or application of K.S.A. 21-
4624(c).

66.
In order to be admissible in a penalty phase of a capital trial, mitigating evidence
must be relevant to the defendant. The district judge in this case did not abuse his
discretion by excluding general testimony about parole likelihood, including an
explanation of the statutory rubric and statistics on past paroles of others.

67.
Testimony about the impact of a defendant's execution must be probative on the
material question of the defendant's character.

68.
A State expert's testimony about other experts' out-of-court agreement with him is
subject to evaluation for admissibility under the Sixth Amendment, Crawford v.
Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and K.S.A.
21-4624(c).

69.
Rebuttal evidence is that which contradicts evidence introduced by an opposing
party. It may tend to corroborate evidence of a party who first presented evidence on the
particular issue, or it may refute or deny some affirmative fact which an opposing party
has attempted to prove. It may be used to explain, repel, counteract, or disprove
testimony or facts introduced by or on behalf of the adverse party. Such evidence
20



includes not only testimony that contradicts the witnesses on the opposite side, but also
corroborates previous testimony. There is no inflexible legal requirement that rebuttal or
surrebuttal evidence be new. A district judge who excludes surrebuttal testimony because
he or she believes it will not be new abuses his or her discretion.

70.
In the absence of a request, the trial court has no duty to inform the jury in a
capital murder case of the term of imprisonment to which a defendant would be
sentenced if death were not imposed. Where such an instruction is requested, the trial
court must provide the jury with the alternative number of years that a defendant would
be required to serve in prison if not sentenced to death. Additionally, where a defendant
has been found guilty of charges in addition to capital murder, the trial court upon request
must provide the jury with the possible terms of imprisonment for each additional charge
and advise the jury that the determination of whether such other sentences shall be served
consecutive to or concurrent with each other and the sentence for the murder conviction
is a matter committed to the sound discretion of the trial court.

71.
A district judge must instruct a penalty phase jury in a capital case not only that it
need not be unanimous on the existence of a mitigating circumstance but also that a
mitigating circumstance need not be proved beyond a reasonable doubt.

72.
It is inadvisable for an aggravating circumstances instruction in the penalty phase
of a capital case to reference a generic crime rather than capital murder.

21



73.
An instruction to a jury in a penalty phase of a capital case that reads:
"Mitigating circumstances are those which in fairness may be considered as extenuating
or reducing the degree of moral culpability or blame or which justify a sentence of less
than death, even though they do not justify or excuse the offense. In this proceeding, you
may consider sympathy for a defendant. The appropriateness of exercising mercy can
itself be a mitigating factor in determining whether the State has proved beyond a
reasonable doubt that the death penalty should be imposed," is not erroneous because it
equates mercy to a mitigating factor.

74.
The aggravating circumstances instruction for a penalty phase in a capital case
must be corrected to be consistent with the verdict form designed to cover the situation
when the jury agrees unanimously on the existence of an aggravating circumstance but
cannot agree unanimously on how it weighs against any mitigation.

Appeal from Sedgwick District Court; PAUL W. CLARK, judge. Opinion filed July 25, 2014.
Affirmed in part, reversed in part, sentence of death vacated, and case remanded.

Debra J. Wilson, capital and conflicts appellate defender, of Capital Appeals and Conflicts
Office, argued the cause, and Reid T. Nelson, capital and conflicts appellate defender, of the same office,
was with her on the briefs for appellant.

Kim T. Parker, deputy district attorney, argued the cause, and Debra S. Peterson, special
prosecutor, David Lowden, chief attorney, Lesley A. Isherwood, assistant district attorney, Nola Tedesco
Foulston, former district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general,
were on the briefs for appellee.

22



The opinion of the court was delivered by

Per Curiam: Defendant Reginald Dexter Carr, Jr., and his brother, Jonathan D.
Carr, were jointly charged, tried, convicted, and sentenced for crimes committed in a
series of three incidents in December 2000 in Wichita. This is R. Carr's direct appeal
from his 50 convictions and 4 death sentences.

In the first incident on December 7 and 8, Andrew Schreiber was the victim. The
State charged R. Carr and J. Carr with one count of kidnapping, one count of aggravated
robbery, one count of aggravated battery, and one count of criminal damage to property.
The jury convicted R. Carr on all counts and acquitted J. Carr on all counts.

In the second incident on December 11, Linda Ann Walenta was the victim. The
State charged R. Carr and J. Carr with one count of first-degree felony murder. The jury
convicted both men.

In the third incident on December 14 and 15, Heather M., Aaron S., Brad H., Jason
B., and Holly G. were the victims of an invasion at the men's Birchwood Drive home that
led to sex crimes, kidnappings, robberies, and, eventually, murder and attempted murder.
The State charged R. Carr and J. Carr with eight alternative counts of capital murder, four
based on a related sex crime under K.S.A. 21-3439(a)(4) and four based on multiple first-
degree premeditated murders under K.S.A. 21-3439(a)(6); one count of attempted first-
degree murder; five counts of aggravated kidnapping; nine counts of aggravated robbery,
eight of which were alternatives, four based on use of a dangerous weapon and four based
on infliction of bodily harm; one count of aggravated burglary; 13 counts of rape, eight of
which were based on coerced victim-on-victim sexual intercourse and one of which was
based on a victim's coerced self-penetration; three counts of aggravated criminal sodomy,
two of which were based on coerced victim-on-victim oral sex; seven counts of attempted
23



rape, six of which were based on coerced victim-on-victim overt acts toward the
perpetration of sexual intercourse; one count of burglary; and one count of theft. The
State also charged R. Carr and J. Carr with one count of cruelty to animals because of the
killing of Holly G.'s dog. The jury convicted R. Carr and J. Carr on all of the charges
arising out of the Birchwood incident.

In connection with the three incidents, the State also charged R. Carr alone with
three counts of unlawful possession of a firearm. The jury convicted him on these three
counts as well.

In the separate capital penalty proceeding that followed, R. Carr and J. Carr were
sentenced to death for each of the four capital murders committed on December 15. They
each received a hard 20 life sentence for the Walenta felony murder. J. Carr received a
controlling total of 492 months' imprisonment consecutive to the hard 20 life sentence,
and R. Carr received a controlling total of 570 months' imprisonment consecutive to the
hard 20 life sentence for the remaining nondeath-eligible crimes.

In his briefs, R. Carr raises 21 issues tied to the guilt phase of his prosecution and
19 issues tied to the death penalty phase of his prosecution. In addition, because this is a
death penalty case, this court is empowered to notice and discuss unassigned potential
errors under K.S.A. 2013 Supp. 21-6619(b), which we do. R. Carr does not challenge the
sentences he received for the Schreiber crimes; for the Walenta felony murder; for the
crimes in which Heather M., Aaron S., Brad H., Jason B., and Holly G. were the victims
that were not eligible for the death penalty; or for the cruelty to animals conviction.

Both sides sought many extensions of time to file briefs in this appeal and in J.
Carr's separate appeal. In R. Carr's case, all of these extension requests were unopposed
24



by the other side of the case. After completion of briefing, this court heard oral argument
on December 17, 2013.

After searching review of the record, careful examination of the parties'
arguments, extensive independent legal research, and lengthy deliberations, we affirm 32
of R. Carr's 50 convictions, including those for one count of capital murder of Heather
M., Aaron S., Brad H., and Jason B. under K.S.A. 21-3439(a)(6); for the felony murder
of Walenta; and for all of the crimes against Schreiber. We reverse the three remaining
convictions for capital murder because of charging and multiplicity errors. We also
reverse his convictions on Counts 25, 26, 29 through 40, and 42 for coerced sex acts for
similar reasons. We affirm the convictions based on Counts 2, 9 through 24, 27, 28, 41,
and 43 through 58.

We vacate R. Carr's death sentence for the remaining capital murder conviction,
because the district judge refused to sever the defendants' penalty phase trials. We
remand to the district court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND FOR GUILT PHASE ISSUES

Resolution of R. Carr's claims on this appeal demands a comprehensive review of
the disturbing facts underlying his convictions and sentences. It also requires discussion
of the actions now attributed to J. Carr, as the defendants' cases were joined at the hip
until appeal and their challenges to their convictions and death sentences are necessarily
intertwined.

25



The Schreiber Incident and Investigation

The first incident began when Schreiber went to a convenience store at 21st and
Woodlawn at 10:45 p.m. on December 7, 2000. He parked his 1998 Ford Expedition on
the side of the building and went inside to make a purchase. Just after he returned to his
car and sat down in the driver's seat, a man holding a small, black, semi-automatic
handgun palm down approached and placed the gun's barrel against the glass of the
window in the driver's door. The man ordered Schreiber to move over to the front
passenger seat.

As Schreiber followed the order and the man climbed into the driver's seat, the
man hit Schreiber in the back of the head with the gun and told him to hurry up. Once
both were situated, the man backed the Expedition out of the parking lot and drove away.
As he was driving, he asked Schreiber if he had any money. Schreiber said yes and
handed over his wallet.

The man pulled into a nearby alley, and a second man came up to the front
passenger window and pointed another gun at Schreiber. The driver ordered Schreiber to
let the other man into the front passenger seat and then get into a middle seat behind the
front seat of the Expedition. As the second man got into the car, he hit Schreiber in the
head with his gun and told Schreiber not to look at him.

The two men asked Schreiber if he had an ATM card, remarking that someone
who drove a car like the Expedition must have money. When Schreiber said he had an
ATM card, the driver gave Schreiber his wallet and had him get his ATM card out.
Schreiber then handed the wallet back to the driver.

26



The driver went to a nearby ATM, pulling up beside it so that Schreiber could
access the machine through the rear passenger window. Schreiber told the men that he
could withdraw only $300 at a time. They instructed him to withdraw $300, and, as the
machine dispensed the money, the men told Schreiber to hand it over his shoulder
without looking at them, which he did. The passenger grabbed the money. The two men
then told Schreiber to hand them the receipt, which he did in the same way. When the
passenger determined from the receipt that Schreiber still had money, he said they were
not done yet.

The driver went to a second ATM, where Schreiber again withdrew the maximum
of $300. Again, the men asked for the receipt, and, after determining that Schreiber still
had money in his account, they again said they were not done.

At a third ATM, Schreiber tried to withdraw $300, but there were insufficient
funds to cover that amount. The men told Schreiber to try to get $200, and the transaction
processed successfully. Schreiber handed the passenger the money and the receipt in the
same way that he did at the first and second ATMs. When the passenger looked at the
third receipt, he said they were going to leave Schreiber with 8 dollars and some change,
which the two men appeared to find funny.

During the entire time the two men took Schreiber from ATM to ATM, the second
man held a gun to Schreiber's head. Schreiber described the passenger's gun as a dark
semi-automatic handgun. During the episode, including a stretch of driving when the
Expedition moved north of the convenience store and then west on Kansas Highway 96,
the men demanded that Schreiber remove any jewelry and give it to them. Schreiber
handed over a silver Guess watch with a blue face. While he was removing the watch, he
turned his head and was again hit on the head and told not to look at the two men.

27



The men also discussed what they were going to do with Schreiber, including the
possibility of dropping him off on a dirt road. After driving on several dirt roads bordered
by open fields, however, the men determined that the locations were not remote enough
for their purposes. The men also discussed the Expedition, the driver commenting on how
much he liked it and wanted one. The passenger said at one point that he planned to take
Schreiber's pants and shoes when they dropped him off, because it was so cold outside.
The passenger appeared to be amused by his own remark.

Eventually, the men took Schreiber back into town and stopped at a car wash near
Windsor at Woodgate Apartments on East 21st Street. There, after two switches between
the positions of the passenger and Schreiber, they told Schreiber to lie face down on the
floor in front of the middle seat. They also discussed dropping the second man off at their
car.

After leaving the car wash, the driver stopped the Expedition again and the
passenger got out of the car. As he left, he reminded the driver to be sure to wipe down
the Expedition. The driver told the passenger to follow him. Schreiber heard another
vehicle. Both cars were driven for several more minutes and then stopped. The driver told
the other man that they had not arrived at the right spot and that the second man should
continue to follow.

The two cars were driven for another 5 to 10 minutes before they were stopped
again. Schreiber could tell that this time the cars had left the paved road. Schreiber heard
the driver turn off the ignition and then wipe the surfaces in the Expedition.

The driver then got out of the Expedition and had a discussion with the second
man about whether they were going to leave Schreiber's keys behind. The second man
then told Schreiber that the two men were going to put the keys in the street. The driver
28



asked Schreiber if he had a spare tire and Schreiber said that he did. The driver said he
was going to slash the tires. Schreiber then heard someone fire three shots.

The driver instructed Schreiber to wait 20 minutes before leaving the scene.
Schreiber heard the men get into the other car and drive away. As they did so, he peeked
out of a window of the Expedition and saw the receding square taillights of the other car.

Schreiber found his keys. One of the Expedition's tires had three holes in it, but he
was able to maneuver the car back onto the paved road near 43rd Street and Webb Road
and drive home, where he called 911.

When law enforcement responded to Schreiber's call, he told police that the driver
who accosted him was a black male in his 20s, approximately 5 feet 9 inches or 5 feet 10
inches tall and with a medium build. Schreiber said the driver was wearing a beanie or
stocking cap of some type, blue jeans, and a long-sleeved dark t-shirt or sweatshirt. The
driver had some facial hair but not a full mustache or a full beard. Schreiber described the
second man as a black male who was taller than the driver, and who was wearing a winter
jacket or parka.

The Walenta Incident and Investigation

The second incident, at about 9:40 p.m. on December 11, 2000, took place in the
driveway of Walenta's home on Dublin Court in east Wichita.

Walenta, who was a cellist with the Wichita Symphony, was arriving home from
practice in her 2000 GMC Yukon. As she turned into one of the side streets near her
home, she noticed a newer, light-colored, four-door Honda-type vehicle turn behind her.

29



The car continued to follow Walenta's Yukon as she turned into her street, a dead
end with a cul-de-sac. As Walenta approached her house, she noticed that the car had
stopped in front of the residence directly south of hers. And, when she pulled into her
driveway, she saw a black male get out of the front passenger side of the car and begin
walking toward the driver's side of her Yukon.

As the man approached, he said he needed help. Walenta rolled her window down
a few inches, and the man immediately pointed a handgun through the window, palm
down and at her head. Walenta tried to start her Yukon, which ground the starter gear
because the car was already running. The man then told Walenta not to move the Yukon,
but Walenta shifted into reverse. When she did, the man shot her.

The gunman began to run away, and, as he did, the other car appeared to be
leaving. Walenta was not sure whether the gunman may have been left behind by
whoever was driving the car that had followed her.

After Walenta had been shot, her across-the-street neighbor, Anna Kelley, heard a
car horn honking. When Kelley looked outside, she realized that the honking was coming
from Walenta's Yukon, and that the Yukon's lights were flashing. When Kelley opened
her front door, Walenta began calling to her for help. Kelley's husband called police as
Kelley ran to Walenta's car. The Yukon was still running; its driver's window had
shattered; and Walenta was slumped backward in the driver's seat.

While waiting for police to arrive, Walenta told Kelley she had been shot by a
black man with wiry hair. She also said that a light-colored car had followed her into her
street.

30



Once transported to the hospital, Walenta provided somewhat more detailed
descriptions of the gunman, although they varied in certain respects from one another.
She described the gunman as a black male in his 30s with a medium build. She said his
hair was long, straight, and wiry, and described it as shoulder-length with corkscrews. At
different points, she estimated his height at between 5 feet 7 inches and 6 feet; as between
5 feet 9 inches and more than 6 feet; and as approximately 6 feet. The only description
she was able to give of the gunman's clothing was that he might have been wearing a
beige trench coat.

Walenta suffered three gunshot wounds, and one of the bullets severed her spinal
cord, rendering her paraplegic. But she began recovering during her stay in the hospital
and was scheduled to be transferred to a rehabilitation facility on January 2, 2001. That
day, however, Walenta suffered a pulmonary embolus—a complication of her paralysis—
and died.

The Quadruple Homicide and Crimes Leading to It

The third incident began on December 14, 2000, at a home shared by Aaron S.,
Brad H., and Jason B. at 12727 Birchwood, the middle unit of a triplex at the intersection
of 127th and Birchwood.

Holly G., who was the girlfriend of Jason B., was with Jason B. at the home. Holly
G. had her dog with her as well. Aaron S. and his friend, Heather M., also were at the
home, as was Brad H.

As Holly G. and Jason B. began getting ready for bed at about 10:30 p.m., Holly
G. pulled her hair back and fastened it with a plastic clip. Jason B. turned off the front
31



porch light, made sure the front door was locked, and then came to bed. Holly G.'s dog
was in Jason B.'s bedroom with Holly G. and Jason B.

A few minutes later, the porch light came on again. Holly G. heard Aaron S.
talking to someone whose voice she did not recognize. Then Jason B.'s bedroom door
burst open, and a tall black man with a gun came through the doorway. Jason B.
screamed as the gunman yanked the covers off of the bed. A second black man, holding
onto Aaron S. by the shirt, came into the room and pushed Aaron S. onto the bed with
Holly G. and Jason B. The man also was armed.

The two intruders asked if anyone else was in the house and were told Brad H.
was downstairs. One of the intruders went downstairs to get Brad H. while the other
stayed in the bedroom. The intruder who stayed upstairs kept demanding to know if there
was anyone else in the house, saying, "[D]on't lie, don't lie." Aaron S. eventually told him
that Heather M. was in the other upstairs bedroom. When the intruder who had gone
downstairs returned to the bedroom with Brad H., he was carrying a golf club, and he
ordered Brad H. onto the floor at the foot of the bed. One of the intruders retrieved
Heather M. from the other bedroom and told her to get on the floor in Jason B.'s bedroom
as well.

The intruders demanded to know where the phones in the house were and whether
there was a safe. One of them was shouting, "Where's the safe? A house this fucking
nice[,] there's got to be a safe!" One looked around the house while the other stood guard
over the five friends. At one point, the intruders also said that someone needed to "shut
. . . up" Holly G.'s dog or they would shoot it. Eventually the dog was muzzled.

The intruders also demanded to know who among Heather M., Aaron S., Brad H.,
Jason B., and Holly G. had money. When none had any cash, the intruders asked who had
32



ATM cards. Each raised his or her hand, and the intruders asked each how much money
he or she had in the bank. After obtaining this information, the intruders had a whispered
discussion. They then ordered the five victims to remove their clothes. The intruders then
pulled all of the clothes out of the closet in Jason B.'s bedroom, ordered the five into the
closet, and told them to sit down. They were threatened not to speak to each other.

The intruders then conversed about wanting to watch two women engage in sex
acts and ordered Holly G. and Heather M. to go to the bar area outside of Jason B.'s
bedroom. They told the women to "suck that pussy." Holly G. and Heather M. complied;
Holly G. performed oral sex on Heather M., and then Heather M. performed oral sex on
Holly G. The intruders also demanded that the two women use their fingers to penetrate
each other's vaginas; again, the women complied. During these acts, both intruders
watched and made further demands, telling the women again to "suck that pussy" and "do
it deeper." When Heather M. was performing oral sex on Holly G., one of the intruders
hit Holly G.'s knee so that he could get a better view of what was happening.

Next, the intruders brought each of the three male victims out to the bar area one
at a time and ordered each to have sexual intercourse with Holly G. Although one of the
intruders had thrown a shirt or other piece of clothing over Holly G.'s face, she remained
able to see her feet and distinguish between the three male victims during these acts. The
first was Brad H.; the second, Jason B.; the third, Aaron S. At some point during these
acts, Heather was moved from beside Holly G. to the closet.

Neither Brad H. nor Jason B. was able to achieve an erection, but penetration of
Holly G. nevertheless occurred. The intruders made comments about "popping"
someone's "ass," if the absence of an erection prevented fulfillment of their demands.
Aaron S. initially defied the intruders, saying, "[N]o, I don't want to do this." One of the
intruders then became angry and hit Aaron S. in the back of the head with something
33



hard, causing him to cry out in pain. Aaron S. then attempted to comply by having
intercourse with Holly G.

After these acts, the intruders ordered Holly G. back into the closet in Jason B.'s
bedroom and brought Heather M. from the closet out to the bar area. They then
commanded Aaron S., Jason B., and Brad H., in that order, to have sexual intercourse
with Heather M.

During these events, the intruders threatened to shoot if one of the men did not
achieve an erection. Holly G. heard one of them say words to the effect of: "[I]t's 11:53,
it's 11:54, somebody better get their dick hard, get a hard on." Holly G. heard Heather M.
moaning in pain when each of the three men was outside of the closet. When Aaron S.
was in the bar area with Heather M., Holly G. heard Aaron S. say again that he did not
want to do what he was being ordered to do.

By this time, about midnight, Holly G. had seen enough of the two intruders that
she was able to differentiate between them. The one she referred to as the first was a
taller, thinner, black male who was wearing an orange and black sweater with the word
"FUBU" on it, black jeans, a leather coat, and some kind of boots. The intruder Holly G.
referred to as the second was stockier than the other and was wearing a black leather coat.

After the coerced victim-on-victim sex acts, the stockier of the two intruders took
Brad H. to a series of ATMs. Before they could leave, there was a problem finding car
keys, which caused the intruders to say that someone had better find his or her "fucking
keys" or someone would be shot.

While Brad H. was gone with the stockier intruder, the taller, thinner intruder
ordered Holly G. out of the closet. He ordered her to get on all fours and get herself
34



"wet." To comply, Holly G. placed her finger in her vagina. The intruder then vaginally
raped her from behind. During the rape, Holly G. was able to see that the intruder had
laid a small, silver handgun on the floor. The gun was 4 inches to 5 inches long and was
not a revolver. The other gun Holly G. had seen that night was black.

When the taller, thinner intruder returned Holly G. to the closet, he ordered
Heather M. out of it and raped or attempted to rape her. From inside the closet, Holly G.,
Jason B., and Aaron S. could hear Heather M. moaning. Aaron. S., in particular, was
crying and saying, "[T]his shouldn't happen this way." Heather M. was never put back
into the closet.

Brad H. and the stockier intruder were away from the home about 30 minutes. The
stockier intruder then took Jason B. to two ATMs. Jason B. and the intruder were gone
about 20 minutes.

There followed a discussion about which of the remaining victims would leave
next with the stockier intruder. Holly G. said she would go. She got out of the closet, put
on a white sweatshirt, and took her ATM card out of her purse. The stockier intruder took
her through the front door to the outside and told her to get into the driver's side of Jason
B.'s silver Dodge Dakota pickup truck. The intruder sat slouched back in the corner of the
passenger seat with what Holly G. believed to be a gun in his hand.

At the Commerce Bank ATM to which Holly G. drove at the stockier intruder's
direction, Holly G. withdrew $350, the maximum amount allowed in one withdrawal. She
then unsuccessfully attempted a $200 withdrawal and then successfully made a $150
withdrawal. This exhausted her available money. When she leaned out of the truck to
take the cash out of the machine, the stockier intruder groped her vagina with his gloved
hand.
35




At one point during this trip, Holly G. asked the stockier intruder if he was going
to shoot her and the other victims. He said no. She then asked him if he promised not to
shoot them, and he said, "Yeah, I'm not going to shoot you."

Also during the trip to the ATM, the stockier intruder asked Holly G. if the other
intruder had had intercourse with her. When Holly G. said that he had, the stockier
intruder wanted to know if she had enjoyed it. To appease him, Holly G. said yes. She
had seen what she believed to be a gun in his lap. The stockier intruder also asked if she
had ever had sex with a black person and if it was better with the taller, thinner intruder
than with her boyfriend.

When Holly G. and the stockier intruder were walking back into the house, he told
her it was too bad they had not met under other circumstances because she was kind of
cute and they could have dated. She replied, "[K]ind of, yeah." He then asked, "[W]hat
does that mean?" Holly G. responded that she wasn't really having a good time.

When Holly G. returned to the closet, she told Aaron S., Brad H., and Jason B.: "I
think we're all going to be okay. I asked him, he said he's not going to shoot us."

Aaron S. was the next to leave the home with the stockier intruder. Holly G.
thought Aaron S. put on pants and a shirt before they left.

While Aaron S. was gone, the taller, thinner intruder opened the closet door and
offered the remaining victims a glass of whiskey, which they refused. Holly G. then
heard someone handling a popcorn tin and a change jar. She heard the taller, thinner
intruder ask Heather M., who was outside of the closet at the time: "[W]hose is this?"
Heather M. said she did not know, but it was probably Holly G.'s. He then asked which of
36



the male victims was Holly G.'s boyfriend, and Heather M. said Jason B. The taller,
thinner intruder then opened the closet door and asked for Jason B. When Jason B.
identified himself, the intruder asked him if the item that had been found was the only
one of its kind. Jason B. said yes. The item was an engagement ring Jason B. had
purchased for but not yet given to Holly G.

When Aaron S. returned, the stockier intruder told Holly G. to leave the closet and
pushed her into the dining room by jabbing her in the back with something she assumed
was a gun. He said, "Don’t worry[.] I'm not going to shoot you yet." The stockier intruder
then made Holly G. get down onto all fours and vaginally raped her from behind. He then
grabbed her, turned her around, ejaculated into her mouth, and ordered her to swallow.
Holly G. was able to see the stockier intruder's face at this point.

Holly G. went to the bathroom, but, when she opened the bathroom door, she saw
the taller, thinner intruder raping Heather M. from behind. Heather M. was on all fours,
and the taller intruder was on his knees. The bathroom light was on, and the second
intruder was only 2 feet to 3 feet in front of Holly G.; so she was able to see his face. The
taller intruder shut the door, telling Holly G. he was not finished yet.

Holly G. waited outside the bathroom door for a few minutes and then opened it
again. The taller intruder then directed Holly G. to get down on all fours. She complied
and he again vaginally raped her from behind. After he stopped, Holly G. heard what
sounded like a condom being removed, and then the toilet was flushed.

Holly G. was then directed back to the bar area, where Heather M. was already
sitting. The three male victims remained in the closet in Jason B.'s bedroom. The women
were cold and Holly G. put on a sweater. The two intruders were talking to each other,
and then the stockier one went downstairs. When he came back upstairs, Holly G. heard
37



him say something about a big screen television. Brad H. had a big screen television in
his downstairs bedroom.

Holly G. also was able to get a better look at the stockier intruder at that time. She
saw his face and noted that his hair was close to his head and not sticking out like the
thinner intruder's hair.

At some point, the intruders used cleaning solution to wipe various surfaces and
things in the house. When they had finished this task, all five victims were taken to the
garage. Holly G. and Heather M. were wearing nothing but sweaters. Aaron S. was still
wearing pants and a shirt. Brad H. and Jason B. were naked.

Holly G. and Heather M. were directed to get into the trunk of a beige Honda
Civic belonging to Aaron S. The intruders then tried to get all three of the men into the
trunk, but they could not fit. Holly G. and Heather M. were then put into the back seat of
the Honda, and the men were put into the trunk. Holly G. was then directed to get into the
passenger side of Jason B.'s truck. After some discussion between the intruders, as the
stockier intruder was taking Holly G. to the truck, the taller, thinner intruder said, "If she
gives you any trouble . . . let me know and we'll take care of that."

The taller, thinner intruder drove away from the Birchwood home first in the
Civic, followed by the stockier intruder driving the truck. As she rode with the stockier
intruder, Holly G. asked him where they were going. He said they were going somewhere
to drop the five victims off—away from their cars and the home. Again, Holly G. was
able to see the stockier intruder's face; at this point, he was making no effort to keep her
from looking at him. Holly G. noted that the clock in the truck showed it was 2:07 a.m.

38



The Honda and the truck were driven to a soccer field at 29th Street and
Greenwich Road, and the intruders got out. Holly G. was ordered to get into the driver's
seat of the Civic. The two intruders talked to each other for a couple of minutes, and then
the male victims were brought out of the trunk and made to kneel in front of the Civic.

At this point, Holly G. turned to Heather M. and said, "Oh my God, they're going
to shoot us." She and Heather M. were then directed to get out of the car. Holly G. knelt
by Jason B., and Heather M. knelt by Aaron S.

Holly G. saw that the two intruders were standing fairly close together. She then
heard a shot, and everyone started screaming. Aaron S. was pleading, "Please, no" and
used the word, "sir." Holly G. heard three more shots.

Holly G. then felt an impact on the back of her head and everything went gray.
She remained kneeling, but then she was kicked over and fell forward. She heard talking,
heard one of the truck's doors shut, heard its engine start, and then felt another impact.
She thought she had been run over. She heard the truck drive away after pausing for a
moment, and she waited until she could no longer hear it before she looked to see if the
intruders and the truck were gone. She saw the truck go south on Greenwich Road and,
when its lights disappeared, she got up and began checking to see if any of the four other
victims was still alive.

Holly G. looked at Jason B. first. She rolled him over and saw blood coming from
one of his eyes. She took her sweater off and tied it around Jason B.'s head to try to stop
the bleeding. After looking at the others, Holly G. decided she needed to get help.
Looking for the nearest safe place, she spotted a house with white Christmas lights in the
distance. Now naked and barefoot, Holly G. ran more than a mile through snow, crossing
several fences, some with barbed wire, to get to that house.
39




It was approximately 2:15 a.m. on December 15, when Steve Johnson and his wife
heard someone pounding loudly on their front door and ringing their doorbell. Johnson
looked outside and saw a naked woman at his door. He opened the door and the woman,
Holly G., told him that she and four friends had been abducted, taken to a nearby field,
and shot. Holly G. had blood on her back, and her hair was matted as a result of some
type of wound. The Johnsons let Holly G. inside, gave her blankets, and called 911.

Investigation Leading to R. Carr's Arrest and Discovery of Evidence

Sedgwick County Emergency Communications dispatch received the Johnsons'
call at 2:37 a.m. Johnson tried to convey everything Holly G. was telling him to the 911
operator, but he ultimately handed the phone to Holly G. because she was giving him
information too fast for him to pass it on. Holly G. was afraid she was not going to
survive and wanted the police to know everything that she knew about the Birchwood
crimes.

Holly G. told the 911 operator that two black men broke into the Birchwood home
at 11 p.m. She said the two intruders put her and her four friends in a closet, took turns
raping her and the other woman who was at the house, and took them one-by-one to
ATMs to make them withdraw money from their bank accounts. She said the two men
then took two of their vehicles, a silver Dodge Dakota pickup truck and a beige Honda
Civic, and drove them to a field on Greenwich Road past 37th Street. There, the two men
made them get on their knees and then shot all five of them in the back of the head. The
two intruders then drove away in the truck.

Holly G. also gave a description of her attackers to the dispatcher. She said one of
the men was tall and skinny, about 6 feet tall, had hair like "Buckwheat," and was
40



wearing an orange and black sweater and black "jean-type" pants. The other had a heavier
build, was also about 6 feet tall, and was wearing a black leather coat.

While Holly G. was being treated in a local hospital emergency room, officers
obtained additional information from her. She said the intruder with the orange and black
sweater was in his early 20s; was about 6 feet tall and weighed 175 pounds; had a bushy
afro that stuck out about 2 inches; and was wearing black leather gloves and blue jeans.
The other intruder was in his early 20s; was about 6 feet tall and weighed 190 to 200
pounds; and was wearing a black leather coat, black leather gloves, blue jeans, and boots.
She said both men were carrying small semi-automatic handguns.

Holly G. had suffered a gunshot wound to the back of her head. The impact
fractured her skull; but the bullet did not penetrate into her brain, apparently because it
had been deflected by the plastic hair clip she was wearing. Holly G. also had other
injuries, including bruises to her face and frostbite to her feet.

While Holly G. was transported and treated at the hospital, law enforcement found
Aaron S.'s Honda Civic and the bodies of the four other victims lying in a road at the
snow-covered soccer field where they had been shot. Sheriff's Deputy Matthew Lynch
was first on the scene. He detected no pulse in Heather M. Aaron S. appeared to be
attempting to breathe, as did Brad H. Jason B. did not appear to be breathing and had no
pulse. Lynch advised dispatch that there were four "code blue" victims, meaning each
was at least in cardiac arrest. EMS arrived on the scene at 2:54 a.m.

Officers collected spent cartridge casings, a bullet fragment, an ATM receipt
reflecting a withdrawal on December 15 at 1:17 a.m., and pieces of Holly G.'s plastic hair
clip at the soccer field.

41



Meanwhile, Wichita Police Officer Michael Dean was dispatched to the
Birchwood home. He arrived at approximately 3 a.m. About that same time, Sergeant
John Hoofer also was dispatched to the home. On his way there, Hoofer saw a Dodge
Dakota pickup passing him in the opposite direction at about 127th Street. Because the
vehicle matched a description that had been put out over the police radio, he turned
around to pursue it. In the process, he lost track of it.

Hoofer arrived at the Birchwood home at 3:19 a.m., and he and Dean went inside.
The home appeared to have been ransacked. In the bedrooms, dresser drawers had been
pulled out; clothes were strewn all over; and the beds had been stripped of their linens. In
the living room, an entertainment center had an open space where a television would
have been, and a coaxial cable had been pulled through the open space and was lying on
the floor. Downstairs, there was a computer desk with no computer. In what law
enforcement would later learn was Jason B.'s bedroom, there was a large pool of blood on
the corner of the mattress and what appeared to be a bullet hole. On the floor below that
part of the mattress was a dead dog. The two officers then went back outside and secured
the home as a crime scene.

A short while later, Dean was standing by his patrol vehicle when he saw an older
white Plymouth come down 127th

Street and drive by the Birchwood residence. He
thought this was unusual, because it was 4 a.m. in a secluded residential area where there
had been very little traffic, and the streets were snow-packed, making driving conditions
hazardous. It was just a few minutes later when Dean saw the same vehicle coming down
Birchwood. As the car drove past, Dean saw that the driver was a black male wearing a
stocking cap. The driver stared straight ahead as the car passed, never acknowledging the
officer or looking at what was now an obvious crime scene surrounded by police tape.
Dean thought this was highly unusual and noted the car's Ford County license plate
number. He watched as the vehicle turned onto 127th Street and headed back in the
42



direction from which it had come the first time he saw it. He notified Hoofer that he
needed to stop the vehicle and identify the driver.

At 4:13 a.m., Hoofer stopped the white Plymouth, a 1988 model, as it was driving
away from the area of the Birchwood residence on 127th Street. He noticed a black
leather coat on the back seat. The driver was R. Carr. He showed Hoofer a piece of paper
identifying him and listing a Dodge City address. R. Carr told Hoofer he was driving to
the apartment of his girlfriend, Stefanie Donley. From R. Carr's description, Hoofer
recognized the apartment's location as the 5400 block of East 21st Street, the address
of—the Windsor at Woodgate complex. At some point after R. Carr identified himself,
the encounter with Hoofer ended; and R. Carr drove away.

At about 4:30 a.m., R. Carr arrived at Donley's apartment. He stayed
approximately 15 minutes and left again, returning about 45 minutes later.

About the same time R. Carr returned to the apartment complex, Christian Taylor,
another resident of Windsor at Woodgate, was watching the local news as he got ready
for work. He saw a report on a quadruple homicide during the previous night and noted
that police were looking for a gray or silver Dodge Dakota pickup truck. As Taylor left
his apartment to go to his car about 6:25 a.m., he saw a Dodge Dakota pickup truck
fitting the description parked on the other side of an empty spot next to his car. The truck
was backed in so that its tailgate was facing a fence; the tailgate was down. A large TV
was in the bed of the truck. He then saw a black man, later identified as R. Carr, appear
from behind the truck. Taylor described the man as in his 20s or 30s, with a few days'
growth of facial hair, wearing blue jeans and a black or brown leather jacket, and with a
scarf or hood covering his head.

43



Thinking the truck and the man he saw might have something to do with the
quadruple homicide, Taylor got into his car, drove out of the parking lot, and headed to
the nearest police station to report what he had seen.

Meanwhile, sometime after 6 a.m., Riwa Obel Nsangalufu, another resident of the
Windsor at Woodgate complex, left his apartment to start his car and let it warm up. As
he walked, he saw a man, later identified as R. Carr, trying to drag a large television on a
blanket toward Building 8. Obel noticed a silver Dodge Dakota that was backed up
against the fence with its tailgate down. R. Carr asked Obel to help, explaining he was
moving in. After several requests, Obel agreed.

Obel helped R. Carr get the television up a set of stairs to Apartment 819. At that
point, R. Carr told Obel that he could get the television inside by himself. R. Carr offered
Obel a tip for helping him and displayed some folded bills. Obel refused the money.

R. Carr then knocked on the door of Apartment 819 and Donley came out. She
asked R. Carr where he had been all night and said she had been waiting for him.

R. Carr told Donley that his sister had made him take his things out of her garage.
He then began bringing various items into her apartment. He also had about $900 in cash
that he took out of his pocket. R. Carr, according to Donley, was trying to reach J. Carr,
and finally talked to him on the telephone at 5:30 a.m. to 5:45 a.m. R. Carr told Donley
that J. Carr was seeing a married woman, that the woman's husband came home, that
there was a shootout, and that J. Carr had run off.

A short while later, R. Carr took a shower, and Donley noticed that he removed a
pair of red shorts he had been wearing under his pants the previous evening.

44



An officer investigating Taylor's report located the Dodge Dakota at the apartment
complex parking lot and confirmed it had belonged to Jason B. The tailgate of the truck
was down, and there were footprints and drag marks in the snow that led to a
multicolored comforter on a sidewalk. On the other side of the fence behind the truck, the
officer saw clothing that appeared to have been thrown over the fence. There was also a
blue-and-white-striped comforter in a trash dumpster next to the pickup truck. Law
enforcement later confirmed that the bedding and clothing belonged to residents of 12727
Birchwood.

At about the time that the officer was observing the comforter in the dumpster,
Obel was leaving the apartment complex to go to work. The officer stopped Obel, and
Obel told the officer about helping a man move a large TV from the truck to an apartment
in Building 8. Obel showed the officer Apartment 819.

Officer Jamie Crouch was among the law enforcement agents who responded to
the Windsor at Woodgate apartments and he stationed himself outside the balcony of
Apartment 819. He heard other officers knock on the apartment's door and announce their
identity as police. A few seconds later, the apartment's sliding glass door onto the
balcony opened. R. Carr emerged from the apartment; and he placed his hands on a
balcony railing as if he were going to jump from the balcony to the ground.

When the officers knocking on the door entered the apartment, Officer Renay
Bryand observed R. Carr coming back into the apartment from the balcony. R. Carr was
arrested. On his person, officers found a gas card bearing Jason B.'s name; a watch that
belonged to Heather M.; and $996, including 49 $20 bills.

Inside Apartment 819, officers also found numerous items belonging to the
residents of 12727 Birchwood. These items included Brad H.'s large television, Jason B.'s
45



checkbook, a garment bag with an identification tag for Aaron S., computer equipment
belonging to Aaron S., tools, electronic equipment, clothing and jewelry, and several
travel bags. The officers also found a credit card belonging to Holly G. They also found
Brad H.'s wallet and Schreiber's Guess watch in a bedroom, under letters addressed to R.
Carr. Shorts and t-shirts belonging to R. Carr were recovered from a bathroom and a sofa
in the apartment. The officer also found a stocking cap, dark leather gloves, and a dark
leather coat. Inside the pocket of the leather coat were two Intrust Bank receipts from
12:06 that morning. The receipts showed balance inquiries made on checking and savings
accounts belonging to Brad H.

Inside the Dakota pickup truck, officers found an ATM card bearing Jason B.'s
name and a wallet containing his driver's license. They also found two Commerce Bank
ATM receipts showing withdrawals that morning. One receipt showed a withdrawal of
$200 at 12:31 a.m. from Jason B.'s bank account, and the other showed withdrawals of
$350 and $150 at 12:53 a.m. from Holly G.'s bank account.

J. Carr's Movements and Arrest and Discovery of Evidence

While police were following up on Holly G.'s appearance at the Johnsons' door, J.
Carr had called his friend, Tronda Adams, at 3:31 a.m. and said he missed a 2:30 a.m.
train he had intended to take to Cleveland, Ohio. Adams granted J. Carr permission to
spend the night at the home she shared with her mother, and he arrived there at
approximately 3:45 a.m. He had driven Donley's Toyota Camry and was still wearing a
brown leather jacket, an orange and black FUBU sweater, black pants, and brown or
black boots—the same clothes he had been wearing the previous evening when he said
goodbye to Adams at 9:30 p.m. and left her home with his brother, R. Carr.

46



J. Carr asked Adams if she had a $20 bill for singles, and she observed that he had
more than $500 in his pocket. Adams had never seen J. Carr with that amount of cash in
the past. When she asked him where he had gotten the money, J. Carr said he had gone to
the bank and withdrawn all of his funds before he was to leave town. Adams thought this
was strange because J. Carr was unemployed and did not ordinarily reside in Wichita.
Adams would eventually testify that her cell phone records showed that J. Carr made a
call to Dodge City at 4:25 a.m. and a call to his sister at 4:26 a.m. She would also testify
he woke her sometime between 4 a.m. and 5 a.m. to say that R. Carr was coming over to
trade cars.

Later that morning, Adams saw news reports about the quadruple homicide. The
reports said the police were looking for two suspects, one wearing an orange FUBU shirt.
Adams woke J. Carr to tell him what had happened and to see how he would react to the
news report. When she asked him if he had heard about four people getting killed, he said
no. When she told him that the gunmen had taken the victims to ATMs and forced them
to withdraw cash, J. Carr asked how the police knew that fact. Adams told him that one
of the victims had survived.

Adams' mother, Toni Greene, was cleaning about 11 a.m. when she found a
maroon jewelry box in one of the pockets of J. Carr's jacket. Inside the box was a
diamond engagement ring. Thinking it must be intended for J. Carr's girlfriend in Ohio,
she put the ring back where she found it.

About noon, Adams was watching the local television news while her mother and
J. Carr were in the room with her. Adams saw video coverage of R. Carr being arrested
and told J. Carr to go downstairs with her right away. Once downstairs, Adams asked J.
Carr if he had seen the video of his brother being arrested. He said he did. When she
asked him what had happened, he told her he was just hanging around drinking after he
47



had missed his train, apparently at his sister's home. Adams told him that his story was
not going to work: He had been wearing the orange FUBU sweater, and the police
already had his brother. J. Carr became upset during this conversation and was crying.

While Adams and J. Carr were downstairs, Greene had continued watching the
news. Although she did not recognize R. Carr as the person being arrested in the video,
she learned that one of the items taken from the Birchwood residence was an engagement
ring. She also learned that the police were looking for an older white Plymouth, and she
had noticed a white Plymouth parked outside the house earlier that morning.

Greene checked outside to see if the Plymouth was still there. It was. She then
called Adams upstairs and told her they needed to leave immediately. Greene told Adams
that J. Carr was the person the police were trying to find. She specifically told Adams
about the engagement ring she had seen in J. Carr's jacket pocket and the Plymouth that
police were looking for parked outside. Adams and Greene went across the street to a
neighbor's house, and Greene and the neighbor called the police.

Looking back toward her house, Adams saw J. Carr come to its front door and
make an inquiring gesture in her direction. He was again wearing the FUBU sweater.
When the police arrived, J. Carr moved away from the door and went back inside. And, a
short while later, Adams saw J. Carr running through an alley. He had again removed the
FUBU sweater.

After a foot chase, officers apprehended J. Carr. They found more than $1,000 in
cash on his person.

Inside Adams' home, police found the orange and black FUBU sweater; leather
gloves; and J. Carr's brown leather jacket. The jacket pocket still contained the
48



engagement ring Jason B. had purchased for Holly G., as well as an identification card
for J. Carr.

In addition, several items were collected from the white Plymouth. These items
included two clocks belonging to Brad H.

While J. Carr was being driven to a hospital after his arrest, pursuant to a warrant
for bodily specimens, he asked the transporting detective and officer about an earlier
quadruple homicide in Wichita. When told the suspects had been arrested and charged
with capital murder, he asked what capital murder was, how the death penalty was
administered, and whether a person who received a lethal injection felt pain.

Additional Investigation and Evidence Identifications

Initially, Schreiber was not able to identify either of the men who kidnapped him
by viewing photo arrays. However, on the morning of December 15, when Schreiber saw
news footage of R. Carr's arrest, he believed R. Carr was one of the men. He called the
detective assigned to his case and said he was "about 90 percent sure that [R. Carr was]
the person who abducted" him the week before.

Later, at preliminary hearing and trial, Schreiber identified R. Carr as the man who
approached his car outside of the convenience store. He did not identify J. Carr as the
second kidnapper at either preliminary hearing or trial.

Walenta was shown two photo arrays at approximately 7:15 p.m. on December 15.
Walenta said that the first and second photographs in one array fit the general appearance
of the person who shot her. She said the eyes of the person in the second photograph
"represented what she remembered about the suspect who shot her." The person in the
49



second photograph was R. Carr. The person in the first photograph was in prison at the
time of the Walenta incident. Walenta was unable to identify anyone from the second
array, which contained a photograph of J. Carr.

Holly G. had been shown two photo arrays at approximately 6:30 p.m. on
December 15, and had been asked if she could identify "any of the people in the pictures
as the intruders."

Holly G. said she thought the person in position number two in the first array, the
same shown later to Walenta, was one of the men. That person was R. Carr. When asked
why she thought the person in position number two was one of the men, Holly G. noted
his eyes, his features, and his hair.

When she viewed the second array, Holly G. said she thought the other intruder
was in position number one, based on her recognition of him and "similar hair as to what
[she] remembered," a "Buckwheat" hairdo standing off the head, kind of clumped
together. The person in position number one was not R. or J. Carr and was in custody at
the time of the Birchwood crimes. J. Carr was in position number four in the second
array.

At preliminary hearing, Holly G. was not able to identify the second, stockier
intruder at the Birchwood residence. By the time of the hearing, R. Carr had shaved his
head, and he intermittently wore glasses. Holly G. was able to identify J. Carr as the first,
taller intruder.

At trial, Holly G. identified both R. Carr and J. Carr—R. Carr as the second,
stockier intruder and J. Carr as the first, taller intruder.

50



Autopsies

Heather M. died of a contact gunshot wound to her head. Her body showed
bruising on her lower extremities. Injuries to her genital area were consistent with the
application of force, and injuries to her knees were consistent with being placed on her
hands and knees for the purpose of sexual intercourse.

Aaron S. died of a contact gunshot wound to his head. He sustained blunt trauma
injuries to his head and neck; and his legs showed bruises, red discoloration, and scrapes.
Injuries on his forehead and head were consistent with being hit with a golf club and the
gun associated with the murders.

Jason B. died of an intermediate-range gunshot wound to his head. In addition, his
body showed blunt trauma injuries. An injury to his buttocks was consistent with being
hit with a golf club.

Like Jason B., Brad H. died of an intermediate-range gunshot wound to his head.
His face showed blunt trauma injuries.

All of the gunshot wounds to the four Birchwood murder victims were consistent
with their bodies being in a kneeling position with their heads down when the bullets
entered their skulls.

Holly G.'s dog sustained "severe injury and fracturing of the neck, almost to the
point where the head had fallen down off of the support of the spinal cord and vertebrae."
Testimony at trial established that the dog's injuries could have been caused by a golf
club. The dog also sustained a puncture wound to its neck.

51



DNA and Other Biological Evidence

Semen collected from the carpet in the dining room of the Birchwood home and a
hair with attached root from Jason B.'s bedroom matched J. Carr's DNA.

J. Carr's DNA also was found in samples from Holly G.'s rape examination.
Semen collected from Holly G.'s labia majora matched J. Carr's DNA; and a sample of
Holly G.'s vaginal discharge was consistent with DNA from her and J. Carr, while all
others at the Birchwood home were excluded as contributors. J. Carr was determined to
be the major contributor to a mixed DNA profile found in semen from a swab of Holly
G.'s lips, and all others at the home were excluded as contributors except for Holly G. and
J. Carr.

A stain on J. Carr's boxer shorts matched Heather M.'s DNA. The results on a
second stain on the boxer shorts excluded possible contributors other than Holly G.,
Heather M., and J. Carr.

Heather M.'s DNA was found in blood on the pair of R. Carr's red undershorts left
on the bathroom floor when he took a shower at Donley's apartment on the morning of
December 15. Heather M.'s DNA was also detected on a white t-shirt on the sofa in
Donley's apartment. A test of DNA on a gray t-shirt from the sofa excluded everyone at
the Birchwood residence except for Heather M. In addition, R. Carr's semen was found
on a white muscle shirt, which he also left on Donley's bathroom floor.

Foreign material found on Holly G.'s thigh was tested and excluded everyone at
the Birchwood residence except for her, R. Carr, and J. Carr.

52



An analysis of swabs from Heather M.'s vaginal entrance, clitoris, vagina, and
vaginal vault was positive for the presence of seminal fluid. Blood also was detected on
cervical swabs.

DNA samples from the penises of Aaron S., Brad H., and Jason B. also were
tested. The sample from Aaron S. included him and Heather M. In addition to Brad H.
himself, Holly G. could not be excluded on his sample. Jason B.'s sample was consistent
with him, Holly G., and Heather M.

Testing was performed on three other hairs collected from the Birchwood
residence.

A Wichita Police Department chemist trained in hair examination originally
separated the total of four hairs from other hairs and fibers collected from the Birchwood
home. She testified that she performed the separation macroscopically and that she had
labeled three of the hairs Negroid and a fourth as "possibly" so.

On further testing, one of the hairs produced no result and may have been a non-
human animal hair. Another did not match either R. or J. Carr, both of whom are African-
American; that hair was more typical of a Caucasian or a person with European ancestry.
Mitochondrial DNA testing on the third hair, which had been collected from the floor of
Jason B.'s bedroom, showed that neither R. Carr nor J. Carr could be excluded as the
contributor. Persons within the same maternal line will have the same mitochondrial
DNA; thus the two brothers would be expected to have the same mitochondrial DNA
profile.

Blood on a golf club found at the Birchwood home was positively identified as
nonprimate blood.
53




A law enforcement agent would eventually testify at trial that he observed warts
on R. Carr's penis after R. Carr was arrested. Donley had also noticed lesions on R. Carr
that she believed to be genital warts. Holly G. learned a few months after the Birchwood
crimes that she had contracted HPV (Human papillomavirus), a virus that can cause
genital warts.

Schreiber's Guess Watch also was tested for DNA, and the results were consistent
with R. Carr.

Bank Account Transactions

Bank account records for Brad H., Jason B., Holly G., and Aaron S. showed the
following chronology of transactions on December 14 and 15:

December 14, 2000:

Commerce Bank ATM
 11:54 p.m. $350 withdrawal from Brad H.'s checking account
 11:55 p.m. $350 withdrawal from Brad H.'s savings account
 11:55 p.m. attempted $350 withdrawal from Brad H.'s account
 11:56 p.m. attempted $350 withdrawal from Brad H.'s account
Prairie State Bank ATM
 11:58 p.m. attempted $500 withdrawal from Brad H.'s account
 11:58 p.m. attempted $350 withdrawal from Brad H.'s account
 11:59 p.m. attempted $350 withdrawal from Brad H.'s account

54



December 15, 2000

Central Bank & Trust ATM
 12:02 a.m. attempted $200 withdrawal from Brad H.'s account
Intrust Bank ATM
 12:05 a.m. attempted $100 withdrawal from Brad H.'s account
 12:06 a.m. balance inquiry on Brad H.'s account
Commerce Bank ATM
 12:31 a.m. $200 withdrawal from Jason B.'s Prairie State Bank account
Prairie State Bank ATM
 12:31 a.m. attempted $250 withdrawal from Jason B.'s Prairie State Bank account
 12:31 a.m. attempted $200 withdrawal from Jason B.'s Prairie State Bank account
 12:32 a.m. balance inquiry on Jason B.'s Prairie State Bank account
 12:32 a.m. attempted $200 withdrawal from Jason B.'s Prairie State Bank account
 12:32 a.m. attempted $100 withdrawal from Jason B.'s Prairie State Bank account
 12:32 a.m. attempted $100 withdrawal from Jason B.'s Capitol Federal account
 12:34 a.m. $80 withdrawal from Jason B.'s Capitol Federal account
Commerce Bank ATM
 12:53 a.m. $350 withdrawal from Holly G.'s account
 12:54 a.m. attempted $200 withdrawal from Holly G.'s account
 12:54 a.m. $150 withdrawal from Holly G.'s account
 1:17 a.m. $350 withdrawal from Aaron S'.s account
Central Bank & Trust ATM
 1:21 a.m. attempted $200 withdrawal from Aaron S.'s account

55



Gun Evidence

Between December 10 and December 12, Adams saw J. Carr with two guns: a
small, silver revolver and a black handgun.

On December 10, she was having problems with her boyfriend, and J. Carr gave
her the small, silver gun to use for her protection. At 11:15 p.m. on December 11, J. Carr
showed up at Adams' home after being dropped off by R. Carr. J. Carr asked Adams to
give the small, silver gun back to him. In return, he gave her the black handgun, a
semiautomatic.

The next evening, J. Carr told Adams that he needed the black gun back, and she
gave it to him. He asked how she had been touching it and scolded her for doing so too
much. J. Carr then thoroughly cleaned the gun. He wiped down the barrel and the grip
and then he ejected the clip and removed the bullets and wiped down the clip and each
bullet.

About 3 months after the quadruple homicide, on March 19, 2001, a Winfield
Correctional Facility inmate on clean-up detail found a Lorcin .380 caliber handgun at the
intersection of Kansas Highway 96 and Greenwich Road in Wichita. Ballistics testing
demonstrated that all of the bullets, casings, and fragments associated with the Schreiber,
Walenta, and Birchwood incidents came from the Lorcin .380 handgun. This included a
casing found at the scene where Schreiber was left by his abductors, bullets and casings
from Walenta's Yukon, a bullet from Walenta's chest, casings and a bullet fragment found
at 29th and Greenwich Road, and a bullet from the body of Aaron S. Adams identified
the Lorcin as the black handgun that J. Carr had given her the evening of December 11
and that she had returned to him on December 12.

56



Shoeprints and Cigar Ash

A print from J. Carr's left Timberland shoe had the same size, shape, and sole
design as a shoeprint found on a cardboard sunshade in the garage at 12727 Birchwood.
A print from the left shoe of R. Carr's pair of Buffalino boots had the same characteristics
as a lift taken from a box under Jason B.'s bed. A print from R. Carr's right Buffalino boot
had the same class characteristics as a lift taken from a tarp under Jason B.'s bed.
Investigators found ashes on a desk in the basement that were wider in diameter than
those from a normal cigarette. There were no ashtrays, cigarettes, or any other kind of
smoking material in the residence. Investigators collected the ashes because they found
the presence of the ashes to be "unusual." A partially smoked cigar was recovered from
R. Carr's leather coat and another from the dashboard of his white Plymouth.

Birchwood Neighbor

After work on December 14, the night the Birchwood incident began, Jean Beck
went to The Grape, a restaurant at Central and Rock Road in Wichita. The restaurant was
a short distance from Walenta's home. Beck left at approximately 10:45 p.m. in her 2000
BMW 323. As she was driving to her home at 12725 Birchwood, the triplex unit next
door to 12727 Birchwood, she noticed a newer, tan Toyota four-door car behind her. As
Beck turned off 13th Street into her residential area, the driver of the Toyota turned in
behind her. Beck called her daughter and asked her to open the garage door at 12725
Birchwood; and, for safety, Beck stayed inside her car until the Toyota had passed her
home. After the Toyota went by, it headed back toward 13th Street.

57



Defense Evidence

R. Carr put on a competing ballistics expert, who testified that his test firings from
the Lorcin .380 were inconclusive in terms of a match to bullets and casings recovered
from the crime scenes and bodies of the victims. However, the expert, Richard Ernest,
admitted that he did not clean the gun before conducting the test firings and that the gun
had significantly degraded by that time. He conceded that his conclusion could have been
different if he had fired the Lorcin in the same condition as it was when the State's expert
fired it.

J. Carr introduced an exhibit confirming his purchase of an Amtrak passenger train
ticket from Newton to Cleveland, to depart at 2:40 a.m. on December 15, 2000.

Additional facts necessary to resolution of particular legal issues will be discussed
below.

Renumbering of Counts in Jury Instructions and Capital Murder Theories

In its instructions to the jury and in the verdict forms, the alternative capital
murder counts set forth in Counts 1 through 8 of the amended complaint were combined
into Counts 1 through 4 of capital murder—one for each of the four Birchwood killings—
based on alternate theories of guilt under K.S.A. 2l-3439(a)(4) (underlying sex crime) or
K.S.A. 21-3439(a)(6) (multiple first-degree premeditated murders). At an instructions
conference, the State had asserted that it did not matter if the jury was not unanimous on
the theory as long as it was unanimous on guilt. A similar combining and renumbering
occurred for the alternative counts of aggravated robbery set out in Counts 15 through 22
of the amended complaint. The remaining counts in the amended complaint were
renumbered accordingly in the instructions and verdict forms. Accordingly, the 58
58



charges in the amended complaint were reduced to 50 possible crimes of conviction. For
clarity, this opinion consistently uses the count numbers from the amended complaint.

GUILT PHASE ISSUES AND SHORT ANSWERS

We begin our discussion by setting out the questions we answer on the guilt phase
of R. Carr's trial. Many of these are also raised by or applicable to J. Carr. We have taken
the liberty of reformulating certain questions to focus on their legally significant aspects
or effects. We also have reordered questions raised by the defense and have inserted
among them unassigned potential errors noted by us, because we believe this
organization enhances clarity. We number all questions consecutively, 1 through 27,
despite occasional intervening subheadings.

Our statement of each question is followed by a brief statement of its answer.

Issues Affecting All Incidents

1. Did the district judge err in refusing to grant defense motions for change of
venue? A majority of six of the court's members answers this question no. One member
of the court dissents and writes separately on this issue and its reversibility, standing
alone.

2. Did the district judge err in refusing to sever the guilt phase of defendants' trial?
A majority of six members of the court answers this question yes. One member of the
court dissents and writes separately on this issue. A majority of four members of the court
agrees that any error on this issue was not reversible standing alone. Three members of
the court dissent, and one of them writes separately for the three on the reversibility
question, standing alone.
59




3. Was it error for the State to pursue conviction of R. Carr for all counts arising
out of the three December 2000 incidents in one prosecution? The court unanimously
answers this question no.

4. Did the district judge err (a) by excusing prospective juror M.W., who opposed
the death penalty, for cause, (b) by failing to excuse allegedly mitigation-impaired jury
panel members W.B., D.R., D.Ge., and H.Gu. for cause, or (c) by excusing prospective
jurors K.J., M.G., H.D., C.R., D.H., and M.B., who expressed moral or religious
reservations about the death penalty, for cause? The court unanimously agrees there was
no error on any of these bases.

5. Did the district judge err by rejecting a defense challenge under Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct 1712, 90 L. Ed. 2d 69 (1986), to the State's peremptory
strike of juror and eventual foreperson W.B.? The court unanimously answers this
question yes. A majority of four members of the court agrees that any error on this issue
was not reversible standing alone. Three members of the court dissent, and one of them
writes separately for the three on the reversibility question, standing alone.

Issues Specific to Walenta Incident

6. Was the district judge's admission of statements by Walenta through law
enforcement error under the Sixth Amendment and Crawford v. Washington, 541 U.S.
36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)? The court unanimously answers this
question yes. The court unanimously agrees that this error was not reversible standing
alone.

60



7. Was the evidence of attempted aggravated robbery of Walenta sufficient to
support R. Carr's felony murder conviction? A majority of four of the court's members
answers this question yes. Three members of the court dissent, and one of them writes
separately for the three on this issue and its reversibility, standing alone.

8. Did the district judge err by failing to instruct the jury on second-degree murder
as a lesser included offense of felony murder of Walenta? The court unanimously
answers this question no.

Issues Specific to Quadruple Homicide and Other Birchwood Crimes

9. Did faulty jury instructions on all four K.S.A. 21-3439(a)(4) sex-crime-based
capital murders and a multiplicity problem on three of four K.S.A. 21-3439(a)(6)
multiple-death capital murders combine to require reversal of three of R. Carr's death-
eligible convictions? The court unanimously answers this question yes.

10. Was a special unanimity instruction required for Counts 1, 3, 5, and 7 because
of proof of multiple sex crimes underlying each count? The court declines to reach the
merits of this issue because it is moot.

11. Must sex crime convictions underlying capital murder Counts 1, 3, 5, and 7 be
reversed because they were lesser included offenses of capital murder under K.S.A. 21-
3439(a)(4)? The court declines to reach the merits of this issue because it is moot.

12. Was the State's evidence of aggravated burglary sufficient? The court
unanimously answers this question yes.

61



13. Did the State fail to correctly charge and the district judge fail to correctly
instruct on coerced victim-on-victim rape and attempted rape, as those crimes are defined
by Kansas statutes, rendering R. Carr's convictions on those offenses void for lack of
subject matter jurisdiction? The court unanimously answers this question yes.

14. Was the State's evidence of R. Carr's guilt as an aider and abettor on Count 41
for Holly G.'s digital self-penetration sufficient? A majority of four of the court's
members answers this question yes. Three members of the court dissent and one of them
writes separately for them on this issue and its reversibility.

15. Were Count 41 and Count 42 multiplicitous? The court unanimously answers
this question yes. The court unanimously agrees that this error requires reversal of R.
Carr's conviction as an aider and abettor on Count 42.

16. Was the evidence of R. Carr's aiding and abetting of J. Carr's rape of Holly G.
and attempted rape and rape of Heather M. sufficient? The court unanimously answers
this question yes.

17. Did Count 43 of the charging document confer subject matter jurisdiction to
prosecute R. Carr for attempted rape of Heather M.? The court unanimously answers this
question yes.

18. Did the district judge misapply the third-party evidence rule and hearsay
exceptions, preventing R. Carr from presenting his defense? The court unanimously
answers this question yes. The court unanimously agrees that any error on this issue was
not reversible standing alone.

62



19. Was evidence of results from mitochondrial DNA testing of hairs found at the
Birchwood home erroneously admitted? The court unanimously answers this question no.

20. Did the district judge err by denying R. Carr's motion for mistrial after
evidence developed at trial that R. Carr had genital warts and that the surviving victim,
Holly G., contracted HPV after the second intruder she identified as R. Carr raped her?
The court unanimously answers this question no.

21. Did the district judge err by failing to instruct on felony murder as a lesser
included crime of capital murder? The court unanimously answers this question no.

Other Evidentiary Issues

22. Did the district judge err by automatically excluding eyewitness identification
expert testimony proffered by the defense? The court unanimously answers this question
yes. The court unanimously agrees that any error on this issue was not reversible standing
alone.

23. Did the district judge err by permitting a jury view of locations referenced in
evidence, in violation of the defendants' right to be present, right to assistance of counsel,
and right to a public trial? The court unanimously answers this question no.

Other Instructional Issues

24. Did the district judge err by failing to include language in the instruction on
reliability of eyewitness identifications to ensure that jurors considered possible
infirmities in cross-racial identifications? The court unanimously answers this question
no.
63




25. Was the instruction on aiding and abetting erroneous because (a) it permitted
jurors to convict the defendants as aiders and abettors for reasonably foreseeable crimes
of the other, regardless of whether the State proved the aider and abettor's premeditation,
(b) it failed to communicate expressly that an aider and abettor had to possess
premeditated intent to kill personally in order to be convicted of capital murder, or (c) it
omitted language from K.S.A. 21-3205(2)? The court unanimously answers the first
question yes. The court unanimously answers the second question no. The court
unanimously answers the third question no. The court unanimously agrees that the error
on the first question was not reversible standing alone.

Prosecutorial Misconduct

26. Did one of the prosecutors commit reversible misconduct by telling jurors to
place themselves in the position of the victims? The court unanimously answers this
question no.

Cumulative Error

27. Did cumulative error deny R. Carr a fair trial on his guilt? A majority of four
of the court's members answers this question no. Three members of the court dissent, and
one of them writes separately for them on this issue.

1. VENUE

The defendants argue that pretrial publicity was so pervasive and prejudicial in
Sedgwick County that it prevented trial by a fair and impartial jury, violating their rights
under the Sixth and Fourteenth Amendments to the United States Constitution and
64



Section 10 of the Kansas Constitution Bill of Rights, and that District Court Judge Paul
Clark abused his discretion by refusing to transfer this case to another county under
K.S.A. 22-2616(1). To the extent only one defendant has explicitly raised a particular
argument, we consider it on behalf of the other defendant as well under the authority of
K.S.A. 21-6619(b).

Additional Factual and Procedural Background

The defendants first moved for a change of venue in March 2002. At a May 28,
2002, evidentiary hearing on their motion, they presented a spring 2002 venue study to
demonstrate the depth of media saturation about this case in Sedgwick County.

The study was based on two telephone surveys, one of 401 Sedgwick County
residents and one of 200 Wyandotte County residents. Lisa Dahl of Litigation
Consultants, Inc., who conducted the surveys, testified that Wyandotte County served as
a control county. It was selected because local media coverage of the case had been
limited and it was a metropolitan area similar to Sedgwick County in demographic
makeup, economy, and crime rates. At the time of the surveys, Sedgwick County had
452,000 residents and Wyandotte County had about 157,000 residents.

The Sedgwick County response rate was 80 percent. Dahl testified that, although
the Wyandotte County response rate was lower at 62.89 percent, it nevertheless fell
within a range sufficient to provide an accurate representation of the views of the
community at large.

The survey showed that 96 percent of the respondents in Sedgwick County were
aware of this case, as compared to 29.5 percent in Wyandotte County. Further, 74.1
percent of those surveyed in Sedgwick County held an overall opinion that the defendants
65



were guilty. Approximately half of these respondents said the defendants were "definitely
guilty," and the other half said they were "probably guilty." In contrast, 22 percent of the
Wyandotte County respondents believed the defendants were "definitely" or "probably"
guilty, according to Dahl. Addressing their understanding of the quality of the evidence,
72.3 percent of the Sedgwick County respondents believed it to be "overwhelming" or
"strong." Only 16 percent of the Wyandotte County respondents believed likewise.

Personal discussions about this case correlated with more widespread beliefs on
the defendants' guilt. Of the 59.1 percent of respondents in Sedgwick County who had
engaged in such personal discussions, 86 percent believed that the defendants were
"definitely" or "probably" guilty. And, of the 56.4 percent of respondents who had merely
overheard such discussions, 82 percent believed the defendants were "definitely" or
"probably" guilty.

Dahl also compiled extensive examples of news media coverage of this case,
which included both print and online newspaper articles; internet coverage from websites
other than those whose content was generated by newspapers; radio coverage, including
audio, transcripts and notes from broadcasts, and printouts of stories on their websites;
and television footage. Much of the coverage was, not surprisingly, unfavorable to the
defendants.

The existence of unfavorable media coverage had been demonstrated in a hearing
nearly a year before on the defendants' motion to close proceedings to the media and the
Wichita Eagle newspaper's and KWCH-TV's motion to intervene. Thomas David
Beisecker, a professor of communication studies at the University of Kansas and
president of Advocacy Research Associates, had testified about the content of media
coverage in the first few months after the crimes. In addition to describing facts of the
crimes and the legal proceedings, Beisecker said, the coverage included discussion of the
66



good character of the victims, R. Carr's parole status and criminal history, and the
community's fear and insecurity stemming from the crimes.

Coverage of the crimes in this case was especially intense immediately after the
Birchwood crimes and the defendants' arrests. Within 2 days of the crimes the Wichita
Eagle had published a story about R. Carr's recent release from jail after his parole
violation and detailing his criminal history. The funerals of Heather M., Aaron S., Brad
H., and Jason B. were covered extensively. Press coverage and public response to it also
focused on fear among Wichita citizens as a result of the string of crimes attributed to the
defendants.

Press coverage spiked again when Walenta died on January 2, 2001, and when the
amended complaint was filed against the defendants 2 days later. In the months
following, various pretrial proceedings such as the April 2001 preliminary hearing and
the discovery of the gun used in the crimes prompted additional stories. The 1-year
anniversary of the quadruple homicide also prompted media stories.

Measurement of intensity of community opinion was another feature of Dahl's
surveys. She testified that the surveys were done more than a year after the crimes and
that, if the opinions of members of the public were going to dissipate, they would have
done so by the time the telephone calls were placed. Because they had not, she expected
that there would be little movement in the opinions evident from the survey results
between the time of the survey and the start of the defendants' trial a few months later.

Dahl admitted that her surveys did not explore the question of impartiality and that
she was not aware of any studies in her field conclusively establishing that participants in
such surveys who voiced opinions on guilt could not ultimately serve as impartial jurors.

67



After the evidentiary hearing on the motion to change venue, Judge Clark said that
he would hear closing arguments from counsel after he had had an opportunity to review
the exhibits.

Closing arguments were held on June 13, 2002. Immediately upon the completion
of the arguments, Judge Clark spoke. He first found that Dahl was qualified to render an
expert opinion and that the venue study was scientifically valid. He then ruled:

"The argument then comes to the emotionally biasing publicity. The purpose in selecting
a jury is not to find a jury free of knowledge. It is to find a jury free of bias and prejudice.
The study shows and the evidence shows and experience shows that in this particular
case, having reviewed the material furnished, the law[,] and the argument of counsel, that
the venue in which the defendants will be assured of the greatest number of venire
persons free of bias or prejudice from whom a jury may be selected to decide the case
solely on the facts in evidence, viewed by the light of the instruments of law, is Sedgwick
County, Kansas. The motion is overruled for both defendants."

In late July 2002, a political committee ran an advertisement on local Wichita
television stations supporting the candidacy of Phill Kline for Kansas Attorney General.
The advertisement identified R. Carr and labeled him a murderer. Although the
advertisement had run in at least one other Kansas media market, it did not identify R.
Carr by name in that market.

The ads and reaction to them generated days of coverage on local television news
in Wichita and in the Wichita Eagle. Among others quoted was Sedgwick County District
Attorney Nola Foulston, the lead prosecutor on the case. She said that "placing this ad in
front of a constituency of individuals in our community that are the same people that are
going to form a jury pool could have a devastating effect."

68



The Kline ad and related media prompted the defendants to renew their motion to
change venue, and Judge Clark held another hearing on the subject on August 2, 2002.
Again, he rejected the defendants' arguments.

Judge Clark's second oral ruling was even more brief than his first: "I . . . know
that on venue and fair trial and the ability to have a jury that will be fair, that's determined
by a questioning process we will try here first. I will overrule the motion. If it can't be
done, we will have a fair trial before this is over, one way or the other. That's all I have
on the motions." His written order denying the renewed motion said that he found the
evidence was "not clear that a fair, impartial jury cannot be selected."

In the month voir dire was to begin in September 2002, prospective jurors
completed sworn questionnaires that inquired about their exposure to pretrial publicity
and whether any opinions they held on the case were so set that they would not be able to
set them aside. According to the questionnaire responses, 92 percent of the prospective
jurors had been exposed to pretrial publicity on this case.

Judge Clark began voir dire on September 9, 2002, prepared to examine up to nine
panels of 20 prospective jurors each until 60 were qualified for final selection. He began
by excusing a handful of prospective jurors based on their questionnaire responses. He
then conducted general voir dire, excusing several prospective jurors for reasons
unrelated to pretrial publicity.

At the conclusion of general voir dire, Judge Clark permitted individual voir dire
on the subjects of racial prejudice, pretrial publicity, and the death penalty. After
individual voir dire of 86 prospective jurors, a panel of 60, plus a panel of 8 prospective
alternates, was established.

69



Nearly all 86 prospective jurors examined individually had been exposed to at
least some publicity regarding the case. Several mentioned seeing articles about the case
within days before the beginning of jury selection.

Fifty-two of the 86 said they had formed no opinion about the case. Of the 34 who
said they had formed opinions about the case, all but three said they could set them aside,
presume the defendants' innocence, and decide the case only on the evidence.

The defendants challenged 11 of the 86 prospective jurors for cause in whole or in
part because of preconceived opinions of guilt. Judge Clark overruled 10 out of 11 of
these challenges, relying on the prospective jurors' statements that they could set their
opinions aside and decide the case impartially on the evidence presented.

Jury selection lasted 19 days.

Of the 12 jurors seated after the parties exercised their peremptory challenges, 11
had been exposed to some degree of pretrial publicity; 5 of the 11 said that their exposure
was minimal.

Eight of the 12 said they had formed no opinion on the defendants' guilt; 4 had
admitted during individual voir dire that they believed the defendants were guilty based
on pretrial publicity: D.G., D.M., T.N., and J.S.

The defense had unsuccessfully challenged D.G. for cause. D.G. said that he had
heard about the case from television and the newspaper. He had some difficulty recalling
the details of the media coverage because of the passage of time since the crimes. Based
on how the events were portrayed in media coverage, it appeared to him that the
defendants were guilty. He continued to believe that until he was called to jury duty and
70



asked whether he could keep an open mind. In his responses to the questionnaire, D.G.
said without equivocation that he could set his opinion aside. During individual voir dire,
one of the prosecutors asked him if he understood that it would be improper for a juror to
consider outside information when deciding the case, and D.G. responded, "Hopefully, I
can separate the two and just try to hear the facts and evidence presented." The
prosecutor suggested that D.G.'s use of the word "hopefully" might cause some to
question the strength of his conviction and then asked D.G. a series of follow-up
questions. D.G. said he agreed that the defendants were entitled to an impartial jury;
acknowledged he would have to base his decision on the evidence, even if it conflicted
with information from pretrial publicity; and said he would have no problem doing so.
Several of D.G.'s statements were made in response to leading questions, such as this
from the prosecution: "And you would agree with me that the defendants . . . are entitled
to a jury that could decide their case based upon what is presented here in court?" In
response to questioning from R. Carr's counsel, D.G. confirmed his ability to consider
only admitted evidence. But, later in the questioning, he occasionally said he would
"hope" and "try" to set aside what he had learned from pretrial publicity.

The defense had also unsuccessfully challenged D.M. for cause. D.M. was
exposed to television and newspaper coverage. Based on the coverage, D.M. said that he
"suppose[d]" he had an opinion that would "lean toward guilt." He said that he
understood it would be improper to rely on information from outside the courtroom in
making a decision. Then the prosecution asked: "And so you wouldn't do that, would
you?" And D.M. said that he "hopefully [would] not" do so. Again, the prosecutor
explained that "hopefully" might not be good enough and that justice required a definitive
answer. At that point, D.M. said, "Ah, yes. I believe I could put it aside, yes—what I've
heard." D.M. agreed that media coverage could be incomplete or inaccurate and that it
would be unfair to find a defendant guilty on such information. In response to questions
71



from defendants' counsel, D.M. again confirmed his ability to set aside his previous
opinion.

The defense had passed T.N. for cause. T.N said she believed R. Carr and J. Carr
were guilty based on coverage in the newspaper. She expressed confidence she could set
that opinion aside and said she would not convict someone based on information she read
in the press. She said she understood that the media may not be privy to all of the facts
and that it would be unfair to base her decision on such information. Some of T.N.'s
statements responded to leading questions, such as this from the prosecution, "So you
will not convict somebody based on what you may have read in the newspaper?" In
response to questions from defense counsel, T.N. again confirmed that she could set aside
her opinion and the information she acquired from pretrial publicity.

The defense had unsuccessfully challenged J.S. for cause. J.S. was exposed to
pretrial publicity about the time the defendants were arrested. When asked whether he
had formed an opinion of guilt based on the coverage, J.S. said, "Well, yeah, not really
based on anything, just, you know, kind of the idea that . . . somebody gets arrested . . .
there is bound to be evidence against them." J.S. said that he understood not all persons
arrested are guilty—an awareness that would make it easier for him to set his opinion
aside. J.S. said that he would make a decision based solely on the evidence.

After voir dire was completed, the defendants orally renewed their motion for
change of venue once more, arguing that the process of jury selection demonstrated that
pretrial publicity had tainted the pool. Judge Clark overruled the motion, saying that jury
selection confirmed "the contrary."

The trial was televised, but Judge Clark restricted media access to evidence, made
sure that microphones would not pick up the defendants' confidential discussions with
72



counsel, and allowed witnesses to decide whether their voices or images could be
published or broadcast. The judge reserved six seats inside the courtroom for members of
the press. He admonished jurors not to pay attention to any of the publicity surrounding
the case during jury selection and again at trial. The record does not suggest that the
media created any disruption or otherwise interfered with the judge's conduct of the
proceedings.

Items identified during testimony as belonging to the victims included Aaron S.'s
Koch Industries business card; a ring that Heather M., a teacher, had bought while on a
choir tour in Europe; Heather M.'s Catholic Family Credit Union debit card; and Brad
H.'s Koch identification card. In describing the state of Aaron S.'s ransacked bedroom, an
investigator testified that she had seen an envelope containing cash and checks "that were
meant for a ski trip that he was planning for the youth organization in church." Next to a
toppled clock were some prayer books and religious material.

The jury knew that R. Carr was charged with three counts of criminal possession
of a firearm for possessing a gun within 10 years after being convicted of a felony.
Donley testified that he was unemployed and made money fighting his dog. In addition,
R. Carr's attorney elicited testimony from Donley that R. Carr sold illegal drugs.

General Legal Framework and Standards of Review

The defendants argue that Judge Clark's refusal to grant a change of venue
violated their right to an impartial jury under the Sixth and Fourteenth Amendments of
the United States Constitution and under Section 10 of the Kansas Constitution Bill of
Rights. They also argue that the judge abused his discretion under the Kansas statute
governing change of venue, K.S.A. 22-2616(1).

73



The Sixth Amendment guarantees an accused "[i]n all criminal prosecutions" the
right to a trial by "an impartial jury." U.S. Const. amend. VI. This protection is
incorporated into and made applicable to the states through the due process provision of
the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L.
Ed. 2d 491 (1968).

The Kansas Constitution includes a similarly worded guarantee for its citizens in
Section 10 of the Bill of Rights, which recognizes a defendant's right to a speedy and
public trial "by an impartial jury of the county or district in which the offense is alleged
to have been committed." We have not previously analyzed our state constitutional
language differently from the federal provision. See State v. Hall, 220 Kan. 712, 714, 556
P.2d 413 (1976). And neither the defendants nor the State urge us to do so today.

In addition, K.S.A. 22-2616(1) gives Kansans a vehicle to obtain a change of
venue to prevent a local community's hostility or preconceived opinion on a defendant's
guilt from hijacking his or her criminal trial:

"In any prosecution, the court upon motion of the defendant shall order that the
case be transferred as to him to another county or district if the court is satisfied that there
exists in the county where the prosecution is pending so great a prejudice against the
defendant that he cannot obtain a fair and impartial trial in that county."

The United States Supreme Court has examined Sixth Amendment venue
challenges based on pretrial publicity in two contexts. Goss v. Nelson, 439 F.3d 621, 628-
29 (10th Cir. 2006) (citing Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed.
2d 663 [1963] [presumed prejudice]; Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L.
Ed. 2d 751 [1961] [actual prejudice]).

74



"The first context occurs where the pretrial publicity is so pervasive and
prejudicial that we cannot expect to find an unbiased jury pool in the community. We
'presume prejudice' before trial in those cases, and a venue change is necessary." 439
F.3d at 628. "In such cases, a trial court is permitted to transfer venue without conducting
voir dire of prospective jurors." House v. Hatch, 527 F.3d 1010, 1023-24 (10th Cir.
2008).

The second context, "actual prejudice," occurs "where the effect of pretrial
publicity manifested at jury selection is so substantial as to taint the entire jury pool."
Goss, 439 F.3d at 628; see Gardner v. Galetka, 568 F.3d 862, 888 (10th Cir. 2009). "In
cases of actual prejudice, 'the voir dire testimony and the record of publicity [must] reveal
the kind of wave of public passion that would have made a fair trial unlikely by the jury
that was impaneled as a whole.' [Citation omitted.]" Hatch, 527 F.3d at 1024.

As Professor Wayne R. LaFave and his colleagues have written, a claim that
pretrial publicity has so tainted prospective jurors as to make a fair trial impossible
cannot be "determined solely by the standards prescribed in the venue change statute or
court rule. The federal constitution may also play a significant role." See 6 LaFave,
Israel, King, & Kerr Criminal Procedure, § 23.2(a) (3d ed. 2007). And, when in conflict,
even constitutionally based provisions on the location of criminal trials must yield to
those establishing a defendant's right to an impartial jury. Skilling v. United States, 561
U.S. 358, 378, 130 S. Ct. 2896 177 L. Ed. 2d 619 (2010) ("The Constitution's place-of-
trial prescriptions . . . do not impede transfer of the proceedings to a different district at
the defendant's request if extraordinary local prejudice will prevent a fair trial."); United
States v. McVeigh, 918 F. Supp. 1467, 1469 (W.D. Okla. 1996) ("right to an impartial
jury in the Sixth Amendment . . . will override the place of trial provisions in both Article
III and the Sixth Amendment in extraordinary cases"). The same certainly is true about
the relationship between the fair trial provisions of the federal Constitution on the one
75



hand and state constitutional and statutory provisions prescribing the ordinary venue for
criminal trials, see, e.g., Kan. Const. Bill of Rights, § 10 (granting right to speedy public
trial by impartial jury of county, district where offense allegedly committed), on the other
hand. The federal Constitution is supreme.

The defendants invoke both presumed prejudice and actual prejudice in this case.
They agree with the State that our traditional standard of review on denial of a motion to
change venue has been abuse of discretion. See State v. Higgenbotham, 271 Kan. 582,
591, 23 P.3d 874 (2001) (citing State v. Cravatt, 267 Kan. 314, 336, 979 P.2d 679
[1999]). But they also urge us to consider whether an unlimited standard of review may
be appropriate under Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S. Ct. 1507, 16 L. Ed.
2d 600 (1966) ("trial courts must take strong measures to ensure" that defendants tried by
impartial jury free from outside influences; appellate courts "have the duty to make an
independent evaluation of the circumstances"), and our statutory duty to determine
whether a sentence of death "was imposed under the influence of passion, prejudice or
other arbitrary factor," K.S.A. 2013 Supp. 21-6619(c)(1).

Because we have not previously been precise about how analysis of presumed
prejudice differs from analysis of actual prejudice, about how the two theories are
supported by and applied under the federal and state constitutions and in concert with our
state venue change statute, or about how our standard of review on appeal may be
affected, we begin our discussion of the defendants' venue challenge by tearing apart and
then reassembling these concepts.

We follow many of our sister state courts into this particular breach. See Crowe v.
State, 435 So. 2d 1371, 1376 (Ala. Crim. App. 1983) (pretrial publicity warrants venue
change when defendant can show presumed, actual prejudice); State v. Atwood, 171 Ariz.
576, 631, 832 P.2d 593 (1992) (prejudice from publicity may be presumed in rare
76



instances); People v. Loscutoff, 661 P.2d 274, 276 (Colo. 1983) (identifying actual,
presumed prejudice as alternative theories warranting venue change); State v. Sostre, 48
Conn. Supp. 82, 85, 830 A.2d 1212 (Super. Ct. 2002) (same); Sykes v. State, 953 A.2d
261, 272 (Del. 2008) (relief under venue statute may be satisfied under either presumed,
actual prejudice theory); Noe v. State, 586 So. 2d 371, 379 (Fla. Dist. App. 1991)
(recognizing presumed, inherent prejudice as basis for venue change); Isaacs v. State,
259 Ga. 717, 726, 386 S.E.2d 316 (1989) (analyzing presumed prejudice as basis for
venue change); State v. Fee, 124 Idaho 170, 175, 857 P.2d 649 (Ct. App. 1993)
(recognizing separate theories of presumed, actual prejudice available to demonstrate
grounds for requested venue change); State v. Gavin, 360 N.W.2d 817, 819 (Iowa 1985)
(same); Watkins v. Commonwealth, 2008-SC-000798-MR, 2011 WL 1641764, at *13
(Ky. 2011) (unpublished opinion) (same), cert. denied 132 S. Ct. 1580 (2012) (showing
of actual prejudice unnecessary when prejudice can be presumed); State v. Goodson, 412
So. 2d 1077, 1080 (La. 1982) (reviewing statutory venue challenge under federal
standards established for actual, presumed prejudice); State v. Chesnel, 1999 Me. 120,
734 A.2d 1131, 1134 (1999) (recognizing actual, presumed prejudice as separate
theories); Commonwealth v. Toolan, 460 Mass. 452, 462, 951 N.E.2d 903 (2011) (same);
State v. Everett, 472 N.W.2d 864, 866 (Minn. 1991) (analyzing evidence for presumed,
actual prejudice); State v. Kingman, 362 Mont. 330, 344, 264 P.3d 1104 (2011) ("As the
basis of a motion for change of venue, the defendant may allege presumed prejudice,
actual prejudice, or both."); State v. Smart, 136 N.H. 639, 647, 622 A.2d 1197 (1993)
(same); State v. Biegenwald, 106 N.J. 13, 33, 524 A.2d 130 (1987) (applying different
standards to claims of presumed, actual prejudice); State v. House, 127 N.M. 151, 166,
978 P.2d 967 (Ct. App. 1999) (recognizing distinction between actual, presumed
prejudice); State v. Knight, 81AP-257, 1981 WL 11437 (Ohio App. 1981) (unpublished
opinion) (describing evidentiary standard for presumed prejudice claims); State v. Fanus,
336 Or. 63, 78, 79 P.3d 847 (2003) (citing United States Supreme Court authority for
presumed, actual prejudice); Commonwealth v. Briggs, 608 Pa. 430, 468, 12 A.3d 291
77



(2011), cert. denied 132 S. Ct. 267, 181 L. Ed. 2d 157 (2011) (acknowledging doctrine of
presumed prejudice as alternative to actual prejudice); Crawford v. State, 685 S.W.2d
343, 350 (Tex. App. 1984), aff'd and remanded 696 S.W.2d 903 (Tex. Crim. 1985)
("Pretrial publicity will entitle a defendant to a venue change if he can show either (1)
news media coverage so damaging that it must be presumed no unbiased jury could be
selected, or (2) from the totality of circumstances, actual prejudice."); McBride v. State,
477 A.2d 174, 185 (Del. 1984) (same); State v. Snook, 18 Wash. App. 339, 349, 567 P.2d
687 (1977) (actual prejudice need not be shown where inherent, presumed prejudice
exists); Sanchez v. State, 142 P.3d 1134, 1139 (Wyo. 2006) (recognizing presumed
prejudice rarely invoked, applicable only in extreme circumstances).

Presumed Prejudice

The presumed prejudice doctrine originated in Rideau v. Louisiana, 373 U.S. 723,
83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963).

In Rideau, law enforcement filmed the confession of defendant Wilbert Rideau to
a bank robbery, kidnapping, and murder in Calcasieu Parish, a community of
approximately 150,000. Local television stations broadcast the confession, reaching
approximately 24,000 people in the community the first day, 53,000 the following day,
and 29,000 the day after that. Rideau was convicted at a jury trial and sentenced to death.
His jury included three persons who had seen the confession on television and two deputy
sheriffs from Calcasieu Parish. 373 U.S. at 723-25.

The Court presumed the existence of prejudice necessitating reversal of Rideau's
convictions without considering what was said by panel members during voir dire.

78



"For anyone who has ever watched television[,] the conclusion cannot be avoided that
this spectacle, to the tens of thousands of people who saw and heard it, in a very real
sense was Rideau's trial—at which he pleaded guilty to murder. Any subsequent court
proceedings in a community so pervasively exposed to such a spectacle could be but a
hollow formality.

. . . .

"'[N]o such practice as that disclosed by this record shall send any accused to his
death.'" Rideau, 373 U.S. at 726-27 (quoting Chambers v. Florida, 309 U.S. 227, 241, 60
S. Ct. 472, 84 L. Ed. 716 [1940]).

The Court invoked the doctrine of presumed prejudice again in Estes v. Texas, 381
U.S. 532, 538, 85 S. Ct. 1628, 14 L. Ed. 2d 543 (1965), when extensive publicity before
trial swelled into excessive media involvement and exposure during preliminary court
proceedings. Reporters and television production crews overran the courtroom and
bombarded the viewing public with the sights and sounds of the hearing. These led to
disruption during proceedings and, according to the Court, denied defendant Billie Sol
Estes the "judicial serenity and calm to which [he] was entitled." 381 U.S. at 536.

In Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S. Ct. 1507, 16 L. Ed. 2d 600
(1966), the Supreme Court presumed prejudice after pervasive, highly prejudicial
publicity combined with a circus-like environment during the trial of defendant Samuel
H. Sheppard, who was accused of bludgeoning his pregnant wife to death.

The media assumed an intensively active role from the outset of the sensational
Sheppard case. Before trial, the press reported on the defendant's refusal to take a lie
detector test or be injected with a "truth serum." 384 U.S. at 338-39. At trial, the
courtroom overflowed with members of the press. Their presence inside the bar limited
Sheppard's ability to engage in confidential discussions with his counsel, and they
79



roamed freely around the courtroom, at times creating so much noise that the presiding
judge and the jury could not hear witnesses' testimony. 384 U.S. at 344. The judge
permitted the local newspaper to publish the names and addresses of each juror, exposing
them "to expressions of opinion from both cranks and friends." 384 U.S. at 353. The
judge's admonitions to jurors was better characterized as "suggestions" or "requests" to
avoid exposure to press coverage, and "bedlam reigned," the Court said, thrusting jurors
"into the role of celebrities." 384 U.S. at 353, 355.

In reversing Sheppard's murder conviction, the Court stated that publicity alone
may not be sufficient to warrant relief, but, when it combines with a judge's inability or
lack of desire to control courtroom proceedings, violation of a defendant's right to a fair
trial is readily apparent. 384 U.S. at 354-58.

Since Sheppard, federal courts have refined the parameters of presumed prejudice
claims, setting an extremely high standard for relief. United States v. McVeigh, 153 F.3d
1166, 1181 (10th Cir. 1998), disapproved on other grounds by Hooks v. Ward, 184 F.3d
1206 (10th Cir. 1999). A "court must find that the publicity in essence displaced the
judicial process, thereby denying the defendant his constitutional right to a fair trial."
McVeigh, 153 F.3d at 1181. Reversal of a conviction will occur only "where publicity
'created either a circus atmosphere in the court room or a lynch mob mentality such that it
would be impossible to receive a fair trial.'" Goss v. Nelson, 439 F.3d 621, 628 (10th Cir.
2006), (quoting Hale v. Gibson, 227 F.3d 1298, 1332 [10th Cir. 2000]); McVeigh, 153
F.3d at 1181.

For its part, in its most recent review of a presumed prejudice question, the United
States Supreme Court has identified seven relevant factors to be evaluated: (1) media
interference with courtroom proceedings; (2) the magnitude and tone of the coverage; (3)
the size and characteristics of the community in which the crime occurred; (4) the amount
80



of time that elapsed between the crime and the trial; (5) the jury's verdict; (6) the impact
of the crime on the community; and (7) the effect, if any, of a codefendant's publicized
decision to plead guilty. See Skilling v. United States, 561 U.S. 358, 381-85, 130 S. Ct.
2896, 177 L. Ed. 2d 619 (2010); United States v. Mitchell, 752 F. Supp. 2d 1216, 1220
(D. Utah 2010) (recognizing, applying Skilling factors).

The federal appellate courts have been split on the appropriate standard of review
for presumed prejudice claims.

The Tenth and Fifth Circuits apply de novo review, based on the directive from
Sheppard relied upon by defendants here: appellate courts must conduct an "independent
evaluation" of the circumstances. See McVeigh, 153 F.3d at 1179; United States v.
Skilling, 554 F.3d 529, 557-58 (5th Cir. 2009), aff'd in part, vacated in part, and
remanded by 130 S. Ct. 2896, 177 L. Ed. 2d 619 (2010).

But a majority of the federal circuits, all but one in an opinion filed before Skilling
was decided by the United States Supreme Court, have reviewed presumed prejudice
claims for abuse of discretion. See United States v. Misla-Aldarondo, 478 F.3d 52, 58-59
(1st Cir. 2007); United States v. Sabhnani, 599 F.3d 215, 232-34 (2d Cir. 2010); United
States v. Inigo, 925 F.2d 641, 654-55 (3d Cir. 1991); United States v. Higgs, 353 F.3d
281, 307-09 (4th Cir. 2003); United States v. Jamieson, 427 F.3d 394, 412-13 (6th Cir.
2005); United States v. Nettles, 476 F.3d 508, 513-15 (7th Cir. 2007); United States v.
Rodriguez, 581 F.3d 775, 784-86 (8th Cir. 2009); United States v. Collins, 109 F.3d 1413,
1416 (9th Cir. 1997); United States v. Langford, 647 F.3d 1309, 1319, 1332-34 (11th Cir.
2011).

The Montana Supreme Court recently addressed the standard of review question in
State v. Kingman, and it elected to follow the abuse-of-discretion majority. 362 Mont.
81



330, 347, 264 P.3d 1104 (2011). The court acknowledged the position of the Tenth and
Fifth Circuits, but it held that they failed to offer a "satisfactory explanation for why a
trial court is accorded greater deference in evaluating actual prejudice than it is accorded
in evaluating presumed prejudice." 362 Mont. at 346. It reasoned that an abuse of
discretion standard is more appropriate than de novo review because the "trial judge is
uniquely positioned to assess whether a change of venue is called for due to prejudice in
the community." 362 Mont. at 347.

We disagree with the Montana Supreme Court and the apparent majority among
the federal appellate courts; we do see room for difference in the standard of review
applied to presumed prejudice and actual prejudice claims, because presumed prejudice
does not consider voir dire conducted in the presence of the trial judge. But we also
disagree with the Tenth and Fifth Circuits.

In our view, a mixed standard of review must apply to a presumed prejudice
challenge on appeal. The factors enumerated by the United States Supreme Court in
Skilling require fact findings, whether explicit or necessarily implied, that we must
review for support by substantial competent evidence in the record. If such evidence
exists, we defer on the fact finding. However, overall weighing of the factors calls for a
conclusion of law, and we must review the conclusion of law under a de novo standard.

We hasten to note that this pattern of review is far from revolutionary. Such a
mixed standard is commonplace. It governs our evaluation of the voluntariness of a
criminal defendant's confession and the existence of probable cause or reasonable
suspicion, for example. Moreover, it is a close analytical relative of the way in which our
examination of district court judge decisions for abuse of discretion has evolved:

82



"Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable,
i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is
based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion;
or (3) is based on an error of fact, i.e., if substantial competent evidence does not support
a factual finding on which a prerequisite conclusion of law or the exercise of discretion is
based." State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct.
1594, 182 L. Ed. 2d 205 (2012) (citing State v. Gonzalez, 290 Kan. 747, 755-56, 234 P.3d
1 [2010]).

In other words, even our deferential abuse of discretion standard presupposes unlimited
review of any legal conclusion upon which a discretionary ruling is based. See Gonzalez,
290 Kan. 747, Syl. ¶ 3; see also State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208
(2007) (discretionary decision must be within trial court's discretion, take into account
applicable legal standards); State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005)
(application of abuse of discretion standard of review does not make mistake of law
beyond appellate correction).

We now turn to examination of the Skilling presumed prejudice factors in this
specific case, as of the three points in time when Judge Clark rejected a defense motion
for change of venue.

First Motion for Change of Venue

Judge Clark's rulings on the three motions for change of venue were nothing if not
pithy. He did not expressly mention the possibility of presumed prejudice rather than
actual prejudice, and he made no discrete factual findings in support of any decision on
presumed prejudice.

83



But, on the record before us, defendants never sought a more complete recitation
or writing to explain Judge Clark's venue rulings; and, if they thought the findings were
insufficient for appellate review, they had an obligation to do so. See Fischer v. State,
296 Kan. 808, 825, 295 P.3d 560 (2013) (Notwithstanding district judge's duties under
Supreme Court Rule 165 [2013 Kan. Ct. R. Annot. 265], "a party also has the obligation
to object to inadequate findings of fact and conclusions of law in order to preserve an
issue for appeal because this gives the trial court an opportunity to correct any findings or
conclusions that are argued to be inadequate."). We therefore assume that Judge Clark
made the necessary factual findings to support his decision to deny a change of venue on
any and all theories. See O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan.
318, 361, 277 P.3d 1062 (2012) (when party fails to object to adequacy of district judge's
findings, conclusions, appellate court can presume judge found all facts necessary to
support judgment).

The first factor to be examined for presumed prejudice under Skilling is media
interference with courtroom proceedings. As mentioned above, there is no suggestion in
the record that any media representative interfered with courtroom administration in this
case at any time, including the period leading up to Judge Clark's consideration of the
first motion for change of venue. In each of the cases in which the United States Supreme
Court has presumed prejudice and overturned a conviction, it did so in part because the
prosecution's "'atmosphere . . . was utterly corrupted by press coverage.'" Skilling, 561
U.S. at 380. There was no such atmosphere here and this factor weighed against
presuming prejudice at the time of the ruling on the defendants' first motion.

The second Skilling factor is the magnitude and tone of the coverage. The
magnitude of the coverage of the crimes and this prosecution was extremely high. But the
Sixth Amendment does not demand juror ignorance. Irvin v. Dowd, 366 U.S. 717, 722,
81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961); Goss, 439 F.3d at 627. "[S]carcely any of those
84



best qualified to serve as jurors will not have formed some impression or opinion as to
the merits of the case." Irvin, 366 U.S. at 722. For these reasons, "[e]xtensive pretrial
media coverage of a crime alone has never established prejudice per se." State v. Dunn,
243 Kan. 414, 424, 758 P.2d 718 (1988) (citing State v. Ruebke, 240 Kan. 493, 500, 731
P.2d 842 [1987]; State v. Porter, 223 Kan. 114, 117, 574 P.2d 187 [1977]). "'[P]retrial
publicity—even pervasive, adverse publicity—does not inevitably lead to an unfair trial.'"
Skilling, 561 U.S. at 384 (quoting Nebraska Press Assn. v. Stuart, 427 U.S. 539, 554, 96
S. Ct. 2791, 49 L. Ed. 2d 683 [1976]).

Our review of the tone of at least the mainstream press coverage likely to reach a
wide audience leads us to the conclusion that it was more factual than gratuitously lurid.
See United States v. Angiulo, 897 F.2d 1169, 1181 (1st Cir. 1990) (where media coverage
tends to be more "factual as opposed to inflammatory or sensational, this undermines any
claim for a presumption of prejudice"). Although the coverage occasionally disclosed
facts that would be inadmissible at trial, the State argues persuasively that some evidence
of the victims' good character and community involvement and of R. Carr's criminal
behavior would later be properly admitted—for example, the teaching and youth
leadership of Heather M., Aaron S., Jason B., and Holly G. and the dog fighting and drug
sales of R. Carr. Further, the United States Supreme Court has clarified that the presumed
prejudice doctrine "cannot be made to stand for the proposition that juror exposure to
information about a state defendant's prior convictions or to news accounts of the crime
with which he is charged alone presumptively deprives the defendant of due process."
Murphy v. Florida, 421 U.S. 794, 799, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975); see
Stafford v. Saffle, 34 F.3d 1557, 1566 (10th Cir. 1994) (pervasive pretrial publicity
relating to defendant's prior conviction for killing six people during armed robbery not
presumptively prejudicial; "nothing in the record to suggest that this publicity was
anything other than factual reporting"); United States v. Abello-Silva, 948 F.2d 1168,
1177 (10th Cir. 1991) (no prejudice presumed when press coverage consisted primarily
85



of facts gathered from public records, pretrial hearings); United States v. Flores-Elias,
650 F.2d 1149, 1150 (9th Cir. 1981) (fact-based publicity focusing largely on victims,
their unfortunate plight did not establish prejudice against defendant so great that fair,
impartial trial not possible).

Finally, as we have observed many times when considering a defendant's
challenge to the admission of gruesome photographs of a crime scene or an ensuing
autopsy of a victim into evidence, gruesome crimes give rise to gruesome photographs.
See, e.g., State v. Green, 274 Kan. 145, 148, 48 P.3d 1276 (2002) ("Gruesome crimes
result in gruesome photographs."). Likewise, a quadruple execution-style homicide and
an attempted first-degree premeditated murder preceded by hours of coerced sex acts and
robberies naturally gives rise to press coverage that some may fairly characterize as at
least occasionally sensational. It can hardly help but be so. See State v. Ruebke, 240 Kan.
at 500-01 (court unwilling to adopt pretrial publicity rule that individual can commit
crime so heinous "that news coverage generated by that act will not allow the perpetrator
to be brought to trial"). Yet, overall, we conclude that the primarily factual tone of the
press coverage reviewed by Judge Clark at the time of the defendants' first motion
compensated for its sheer magnitude, and the second Skilling factor did not weigh in
favor of presumed prejudice.

The third Skilling factor, the size and characteristics of the community in which
the crimes occurred, did not weigh in favor of granting the defendants' first motion for
change of venue on the ground of presumed prejudice. Laying claim to 452,000 residents
and the largest city in Kansas, Sedgwick County had the largest population in the state
from which to draw potential jurors. Compare Skilling, 561 U.S. at 382 (large Houston
population, with 4.5 million potential jurors, minimized potential for presumed prejudice)
and Mu'Min v. Virginia, 500 U.S. 415, 429, 111 S. Ct. 1899, 114 L. Ed. 2d 493 (1991)
(potential for prejudice mitigated by size of metropolitan Washington, D.C., statistical
86



area; population of more than 3 million among whom hundreds of murders committed
each year), with Rideau, 373 U.S. at 724-25 (recognizing greater potential for prejudice
in parish with 150,000 residents, where confession broadcast to audience of nearly
100,000 over 3-day period). The United States Supreme Court and at least one federal
district court and one state supreme court have noted population sizes similar to
Sedgwick County on the way to concluding that the risk of prejudice was diminished. See
Gentile v. State Bar of Nevada, 501 U.S. 1030, 1044, 111 S. Ct. 2720, 115 L. Ed. 2d 888
(1991) (reduced likelihood of prejudice when venire drawn from pool of more than
600,000); United States v. Diehl-Armstrong, 739 F. Supp. 2d 786, 793-94, 807 (W.D. Pa.
2010) (no presumed prejudice, in part because jury drawn from community with total
population of 545,615); State v. Gribble, 165 N.H. 1, 19-20, 66 A.3d 1194 (2013)
(potential for prejudice mitigated by jury pool of more than 400,000 residents).

The fourth Skilling factor is the time that elapsed between the crime and the trial.
At the time the first motion to change venue was ruled upon, 17 months had passed since
the crimes were committed. Approximately 3 and 1/2 months remained before voir dire
would begin. In the ordinary case, one might expect these time frames to mean that
public interest in the crimes and the defendants had begun to wane and that it would
continue to do so. See United States v. Lehder-Rivas, 955 F.2d 1510, 1524 (11th Cir.
1992) ("The substantial lapse of time between the peak publicity and the trial also weighs
against a finding of prejudice.") (citing Nebraska Press Ass'n, 427 U.S. at 554); State v.
Sanger, 108 Idaho 910, 913, 702 P.2d 1370, 1373 (Ct. App. 1985) (lapse of 17 months
substantially minimizes prejudice). But Dahl testified about the staying power of the
relevant press coverage and the extreme public opinions it fostered. Although she
expected her surveys to demonstrate marked dissipation by spring 2002, she found less
than expected. We consider this factor inconclusive on presumed prejudice at the time
Judge Clark ruled on the defendants' first motion for change of venue.

87



The jury's verdict is the fifth Skilling factor. It was unknown at the time that Judge
Clark ruled on the defendants' first motion for change of venue.

The sixth Skilling factor is the impact of the crimes on the community.

The defendants' evidence in support of their first motion included strongly hostile
statements by members of the public in response to press coverage of the crimes and the
prosecution, typically appearing in reader comments sections or on websites, at least
some of which appear to have been sponsored by extreme and/or racist groups. It is
difficult to extrapolate from these individual comments to the impact on the public as a
whole. See Gribble, 66 A.3d at 1208 (defendant's reliance on articles quoting residents
who expressed anger, bewilderment, heartbreak over crimes "fails to demonstrate. . . how
the sentiment expressed by a small number of residents in a county with over 400,000
residents is indicative of presumed prejudice in the potential jury pool"). And the
Supreme Court has observed that venue changes have been granted in highly charged
cases like "the prosecution arising from the bombing of the Alfred P. Murrah Federal
Office Building in Oklahoma City," while courts have properly denied such requests in
other "cases involving substantial pretrial publicity and community impact, for example,
the prosecutions resulting from the 1993 World Trade Center bombing . . . and the
prosecution of John Walker Lindh, referred to in the press as the American Taliban."
Skilling, 561 U.S. at 378 n.11.

Still, certain press stories collected by Dahl and entered as exhibits in the
evidentiary hearing on the defendants' first motion documented more widespread public
reaction to the crimes. For example, the Wichita Eagle reported on increased numbers of
security system purchases in the wake of the Birchwood home invasion. We conclude
that this sixth factor weighed in favor of presumed prejudice at the time Judge Clark
considered the defendants' first motion for change of venue.
88




The seventh Skilling factor, publicity given to a codefendant's confession, would
never be applicable in this case, because neither defendant confessed to any of the crimes
with which they were jointly charged. The pretrial publicity before Judge Clark at the
time of the first motion thus lacked the smoking-gun type of information the Supreme
Court has found to be uniquely prejudicial. See Rideau, 373 U.S. at 726 (publicity given
to filmed confession "in a very real sense was Rideau's trial—at which he pleaded
guilty"); Sheppard v. Maxwell, 384 U.S. 333, 338-39, 86 S. Ct. 1507, 16 L. Ed. 2d 600
(1966) (discussing impact of reports of defendant's refusal to take lie detector test); Irvin
v. Dowd, 366 U.S. 717, 725-26, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961) (discussing
prejudice from defendant's offer to plead guilty to avoid death penalty). The absence of
publicity about smoking-gun evidence weighed against presumed prejudice at the time
the defendants' first motion was considered. See Skilling, 561 U.S. at 382-83 (lack of
smoking-gun type of evidence in pretrial coverage made it less memorable, mitigated
prejudgment).

Our review of all of the Skilling factors at the time of the first motion leads us to
conclude that, on balance, there was no presumed prejudice compelling Judge Clark to
transfer venue of this case to another county.

We are not persuaded by the defendants' reliance upon Daniels v. Woodford, 428
F.3d 1181 (9th Cir. 2005), to support their argument for presumed prejudice. In that case,
two law enforcement officers, Dennis Doty and Phil Trust, were shot and killed while
attempting to execute an arrest warrant for defendant Jackson Chambers Daniels, Jr.

"The murders of Doty and Trust generated extensive and nearly continuous publicity
immediately after the shootings and again before Daniels's trial. [Citation omitted.]
Articles described SWAT team searches of the neighborhood where Daniels was hiding.
89




"News accounts described the perpetrator as a Black paraplegic, and Daniels was
identified in press accounts as the killer from the very beginning.

"Although the publicity diminished after Daniels's arrest, it resumed as trial approached.
Three months before the trial, news articles covered the local school board's proposal to
rename its football stadium in honor of officer Doty. One month before Daniels's trial
was to begin, on the anniversary of the killings, a statue commemorating fallen police
officers was unveiled by the county. The publicity surrounding the memorial and its
unveiling ceremony largely referred to officers Trust and Doty. The memorial statue,
standing nine feet tall, was located across the street from the Riverside County
courthouse where Daniels was tried.

"Based on our review of the California Supreme Court's findings, the public's
response to this publicity clearly amounted to a 'huge' wave of public passion. As the
California Supreme Court described it, police stations were 'deluged' with calls from
citizens offering tips on the investigation and offering to establish a memorial fund. In
addition, local newspapers printed numerous letters from readers calling for Daniels's
execution. The officers were turned into 'posthumous celebrities,' and approximately
three thousand people attended their funerals. That the news coverage saturated the
county is reflected in the fact that eighty-seven percent of the jury pool recognized the
case from the media coverage. Two-thirds of those empaneled remembered the case from
the press accounts-some recalled that the suspect was a Black paraplegic, others recalled
that police officers were shot, and two jurors remembered Daniels by name.

"The press accounts did not merely relate factual details, but included editorials
and letters to the editor calling for Daniels's execution. In addition, news articles reflected
the prosecution's theory of the case by attributing the killings to Daniels's desire to escape
justice. Also well-publicized by the press was Daniels's past criminal offenses, including
an arrest for shooting at a police officer. Such information was highly prejudicial and
would not have been admissible at the guilt phase of Daniels's trial." 428 F.3d 1211-12.

90



Based on these facts, the Ninth Circuit presumed prejudice and held that "[t]he
nature and extent of the pretrial publicity, paired with the fact that the majority of actual
and potential jurors remembered the pretrial publicity, warranted a change of venue," and
the refusal to transfer the case "violated Daniels's right to a fair and impartial jury and
thus, his right to due process." 428 F.3d at 1212.

The defendants are correct that their case and Daniels shared certain
characteristics—extensive coverage and citizen awareness; publication of reader
viewpoints, some of which demanded vengeance for the victims' murders; and reporting
of some facts that would be inadmissible at trial. But the impact on and response from the
community was considerably greater in Daniels, where the victims were police officers
killed in the line of duty, and community sentiment was so strong that monuments were
constructed in their honor.

We also are not persuaded by Daniels because it appears to be somewhat behind
the United States Supreme Court's most recent discussion of presumed prejudice in
Skilling. Had the judges who decided Daniels had the benefit of Skilling at the time they
filed their opinion, they may not have relied so heavily on extensive media coverage and
a high level of community familiarity to reach their result. Skilling makes clear that more
is needed before the Sixth Amendment requires a change of venue because of presumed
prejudice.

Daniels also appears to be out of step among other Ninth Circuit decisions. See
Hayes v. Ayers, 632 F.3d 500, 509 (9th Cir. 2011) (no presumed prejudice even though
"stories about [defendant Royal Kenneth] Hayes were unflattering and included
inadmissible evidence"; stories "contained no confession or other blatantly prejudicial
information of the type readers or viewers could not reasonably be expected to shut from
sight"); Ainsworth v. Calderon, 138 F.3d 787, 795 (9th Cir. 1998) (no presumed
91



prejudice in death penalty case despite stories portraying victim as sympathetic,
disclosing defendant's criminal history; coverage accurate, factual); Harris v. Pulley, 885
F.2d 1354 (9th Cir. 1988) (no presumed prejudice in death penalty case despite media
coverage of defendant's confession, prior conviction for manslaughter, parole violations;
editorials, letters called for defendant's execution). At least one district court in the Ninth
Circuit has categorized Daniels as an "extreme case likely to invoke strong and lasting
impressions" of the defendant because he was "a cop killer, he was hunted by a SWAT
team, and one of the men he killed was such an outstanding police officer that his name
warranted special public recognition." United States v. Celestine, 3:09-CR-00065 JWS,
2009 WL 3676497, at *5 (D. Alaska 2009) (unpublished opinion).

The pretrial publicity at the time of the defendants' first motion, although sustained
and unflattering to the defendants, had not made the prosecution into a circus or created a
lynch mob mentality. See Stafford, 34 F.3d at 1566 (presumed prejudice appropriate only
when publicity created circus-like atmosphere, created lynch mob mentality throughout
venire). There was no error in Judge Clark's failure to grant the defendants' first motion
for change of venue on a presumed prejudice basis.

Second Motion for Change of Venue

Our evaluation of presumed prejudice from the vantage point of the second motion
for change of venue—considered by Judge Clark in early August 2002 after several
television stations aired the Kline ad and secondary coverage of the controversy it
generated—changes little. We need only reexamine the second and fourth Skilling
factors, the magnitude and tone of coverage and the timing of the crime and trial.

We acknowledge that these two factors were affected by the advertisement and
resulting coverage, but, we think, only marginally. Although responsible press outlets had
92



refrained from referring to either of the defendants as a murderer before the ad ran, we
are confident that the ad's photograph and reference to R. Carr by name as the murderer
of the quadruple homicide victims would have been recognized by the vast majority of
potential jurors as the overheated campaign pitch it was. There was minimal danger of it
being regarded as reliable journalism. As counsel for R. Carr asserted during the hearing
on the second motion, the ad was a poor excuse for political speech; but reasonably
discerning potential jurors would have recognized that as well.

On the fourth Skilling factor, the timing of the crime and trial did not change.
However, the ad and stories about its effect on the case and on the primary race fell 2
months closer to the beginning of jury selection than the hearing on the first motion.
Although they may have ratcheted up public anticipation of the trial somewhat sooner
than could have been expected in the ordinary course, eventually the ordinary course was
bound to be followed. Again, sensational crimes inevitably produce at least some
breathless press, but the amount attributable to the Kline ad and its secondary coverage
was negligible in the grand scheme before us.

There was no presumed prejudice for Judge Clark to recognize by granting the
defendants' second motion for change of venue.

Third Motion for Change of Venue

The defendants' third motion came after the completion of jury selection. In the
defendants' view, the process of general and individual voir dire, the strikes for cause and
the peremptory strikes, although executed in an orderly fashion, had confirmed their
worst fears. They contended they were in the center ring at the circus, where a fair trial
would be impossible.

93



This is the essence of the doctrine of presumed prejudice. If it exists, then, by
definition, the problem of damning pretrial publicity and the public opinions on guilt it
has spawned are not amenable to correction. No amount of juror education or admonition
or instruction will fix them. No number of seemingly sincere assurances by a venire
member that he or she can and will put aside preconceived ideas about the defendants'
culpability can be believed.

We simply cannot go there. When we reexamine the seven Skilling factors as of
the time of the defendants' third motion, again, we do not believe that Judge Clark erred
because prejudice should have been presumed. The press still was not running amok in
the courtroom. Judge Clark maintained appropriate control. Although the jury
questionnaire responses and the content of individual voir dire confirmed Dahl's earlier
surveys showing that familiarity with pretrial publicity was wide and deep, defendants
did not even claim that the tone of the coverage had altered in any significant way to their
detriment. The other Skilling factors, on the record before us, also were static or remained
inapplicable. The defendants and their counsel did not show that "an irrepressibly hostile
attitude pervaded the community," Stafford, 34 F.3d at 1566, requiring Judge Clark to
transfer the case to a different county.

Even now, with the benefit of the full record of the trial, including the verdict, we
cannot say that prejudice should be presumed. In Skilling, the Court observed that the
jury's acquittal of the defendant on several insider-trading charges was of "prime
significance," weighing heavily against such prejudice. 561 U.S. at 383. Here, the jury
acquitted R. Carr's codefendant, J. Carr, of all charges stemming from the Schreiber
incident despite media coverage connecting both defendants to all three incidents. "It
would be odd for an appellate court to presume prejudice in a case in which jurors'
actions run counter to that presumption." Skilling, 561 U.S. at 383-84 (citing United
States v. Arzola-Amaya, 867 F.2d 1504, 1514 [5th Cir. 1989]). We agree.
94




Actual Prejudice

We now turn to actual prejudice, also a constitutional concern under the Sixth and
Fourteenth Amendments and § 10 of the Kansas Constitution Bill of Rights.

"In reviewing for actual prejudice, we examine . . . 'whether the judge had a
reasonable basis for concluding that the jurors selected could be impartial.'" McVeigh,
153 F.3d 1166, 1183 (10th Cir. 1998) (quoting United States v. Abello-Silva, 948 F.2d
1168, 1177-78) (10th Cir. 1991). The crucible for determination of actual prejudice is
voir dire. Foley v. Parker, 488 F.3d 377, 387 (6th Cir. 2007) "The court must review the
media coverage and the substance of the jurors' statements at voir dire to determine
whether a community-wide sentiment exists against the defendant." 488 F.3d at 387.

The appellate standard of review of a district judge's decision on actual prejudice
is abuse of discretion. Jury selection is a task "particularly within the province of the trial
judge." Ristaino v. Ross, 424 U.S. 589, 594-595, 96 S. Ct. 1017, 47 L. Ed. 2d 258 (1976).
Thus, when a district judge rules that a juror can set aside pretrial publicity and decide the
case on the evidence, his or her ruling is entitled to special deference:

"Appellate courts making after-the-fact assessments of the media's impact on jurors
should be mindful that their judgments lack the on-the-spot comprehension of the
situation possessed by trial judges.

"Reviewing courts are properly resistant to second-guessing the trial judge's
estimation of a juror's impartiality, for that judge's appraisal is ordinarily influenced by a
host of factors impossible to capture fully in the record—among them, the prospective
juror's inflection, sincerity, demeanor, candor, body language, and apprehension of duty.
[Citation omitted.] In contrast to the cold transcript received by the appellate court, the
95



in-the-moment voir dire affords the trial court a more intimate and immediate basis for
assessing a venire member's fitness for jury service. We consider the adequacy of jury
selection . . . therefore, attentive to the respect due to district-court determinations of
juror impartiality and of the measures necessary to ensure that impartiality." Skilling, 561
U.S. at 386-87.

"Negative media coverage by itself is insufficient to establish actual prejudice."
Foley, 488 F.3d at 387. And the fact that jurors entered the box with preconceived
opinions of guilt alone does not overcome a presumption of juror impartiality. "It is
sufficient if the juror can lay aside his impression or opinion and render a verdict based
on the evidence presented in court." Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S. Ct. 1639,
6 L. Ed. 2d 751 (1961). "The relevant question is not whether the community
remembered the case, but whether the jurors at . . . trial had such fixed opinions that they
could not judge impartially the guilt of the defendant." Patton v. Yount, 467 U.S. 1025,
1035, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984); Goss v. Nelson, 439 F.3d 621, 627 (10th
Cir. 2006) (defendant's right to impartial tribunal satisfied when jurors can base decision
on evidence).

In this case, although Judge Clark was brief in his ruling on the defendants' third
motion for change of venue, advanced at the conclusion of jury selection, his statement
referenced his assessment that, despite widespread pretrial publicity, an unbiased jury had
been selected in Wichita. Eight of the 12 jurors eventually seated in the defendants' trial
held no prior opinions on guilt. The four who admitted to forming such opinions
ultimately said that they could set their opinions aside. See Hale v. Gibson, 227 F.3d
1298, 1320 (10th Cir. 2000) (defendants must show more than juror's preconceived
notion; defendant must show juror's notion fixed). On their face, these voir dire responses
provided Judge Clark with a reasonable basis for his ruling. See Gardner v. Galetka, 568
F.3d 862, 890 (10th Cir. 2009) (no actual prejudice despite 55 percent of prospective
jurors with previous opinion on guilt, including four of 12 seated; court spent 5 days
96



examining prospective jurors about knowledge of facts, ability to set aside opinions of
guilt).

The defendants argue, nevertheless, that neither Judge Clark nor we can rely on
the jurors' declarations of impartiality, and there is some authority for setting aside juror
declarations of impartiality in extreme cases.

In Irvin, the United States Supreme Court recognized that adverse pretrial
publicity can create so much prejudice in a community that juror declarations of
impartiality cannot be credited. Irvin involved a situation in which headlines before
defendant Leslie Irvin's trial "announced his police line-up identification, that he faced a
lie detector test, had been placed at the scene of the crime and that the six murders were
solved but petitioner refused to confess." 366 U.S. at 725. On the day immediately before
trial began, newspapers carried a story "that Irvin had orally admitted the murder of . . .
(the victim in this case) as well as 'the robbery-murder of Mrs. Mary Holland; the murder
of Mrs. Wilhelmina Sailer in Posey County, and the slaughter of three members of the
Duncan family in Henderson County, Ky.'" 366 U.S. at 726. The press also reported that
Irvin had offered to plead guilty in exchange for a sentence other than death. In addition,
the record in Irvin evidenced difficulty in impaneling his jury. The court was forced to
excuse 268 of 430 potential jurors because they expressed immovable opinions on Irvin's
guilt. 366 U.S. at 727. Of the jurors ultimately seated, eight of 12 had admitted to
possessing some preconceived opinion on his guilt. Under these circumstances, the Court
held that the trial judge erred in accepting the jurors' representations about their ability to
be impartial:

"The influence that lurks in an opinion once formed is so persistent that it unconsciously
fights detachment from the mental processes of the average man. [Citation omitted.]
Where one's life is at stake—and accounting for the frailties of human nature—we can
97



only say that in the light of the circumstances here the finding of impartiality does not
meet constitutional standards. Two-thirds of the jurors had an opinion that petitioner was
guilty and were familiar with the material facts and circumstances involved, including the
fact that other murders were attributed to him, some going so far as to say that it would
take evidence to overcome their belief. One said that he 'could not . . . give the defendant
the benefit of the doubt that he is innocent.' Another stated that he had a 'somewhat'
certain fixed opinion as to petitioner's guilt. No doubt each juror was sincere when he
said that he would be fair and impartial to petitioner, but psychological impact requiring
such a declaration before one's fellows is often its father. Where so many, so many times,
admitted prejudice, such a statement of impartiality can be given little weight. As one of
the jurors put it, 'You can't forget what you hear and see.' With his life at stake, it is not
requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a
wave of public passion and by a jury other than one in which two-thirds of the members
admit, before hearing any testimony, to possessing a belief in his guilt." 366 U.S. 727-28.

Since Irvin, the Supreme Court has twice considered whether a juror's declaration
of impartiality should be discounted.

In Patton v. Yount, 467 U.S. 1025, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984), the
jury convicted defendant Jon E. Yount of first-degree premeditated murder and rape of
one of his female students. On direct appeal, the state court reversed Yount's conviction
and remanded for a new trial. He was again convicted after retrial, and he claimed that
pretrial publicity deprived him of his right to trial by a fair and impartial jury. The
publicity leading up to his second trial disclosed the result of his first trial, his confession,
and his earlier plea of temporary insanity—all information not admitted into evidence at
the second trial. Voir dire demonstrated that all but 2 of 163 veniremen had heard of the
case, and that 126 of the 163 would carry an opinion of guilt into the jury box. 467 U.S.
at 1029. Eight of the 14 seated jurors and alternates admitted that they had formed an
opinion of guilt. 467 U.S. at 1029-30. Nevertheless, the Court distinguished Irvin and
affirmed Yount's conviction, because jurors' opinions of guilt had weakened considerably
98



in the 4 years that passed between the first trial and the second. "Many veniremen, of
course, simply had let the details of the case slip from their minds," the Court said. 467
U.S. at 1033. For others, "time had weakened or eliminated any conviction they had had
. . . ." Ultimately, "the voir dire resulted in selecting those who had forgotten or would
need to be persuaded again." 467 U.S. at 1033-34.

Likewise, in Murphy v. Florida, 421 U.S. 794, 800-01, 95 S. Ct. 2031, 44 L. Ed.
2d 589 (1975), the Supreme Court refused to set aside juror declarations of impartiality
when voir dire responses did not reflect the wave of community hostility present in Irvin.

Relying on this authority, the Tenth Circuit also has refused to set aside juror
declarations of impartiality. In Hale v. Gibson, 227 F.3d 1298, 1333 (10th Cir. 2000), 6
of 12 jurors seated had held some opinion of the defendant's guilt. 227 F.3d at 1333. But
all confirmed their ability to be fair and impartial in response to inquiry from the trial
court. 227 F.3d at 1332. The panel distinguished Irvin, observing that voir dire did not
uncover "an atmosphere of hostility toward the defendant, nor did the trial court have a
difficult time in seating the jury." 227 F.3d at 1333.

The Tenth Circuit reached the same result in Gardner, where 4 of 12 jurors had
earlier formed an opinion of guilt. 568 F.3d at 887-90. The panel again distinguished
Irvin, in part because protective measures taken by the trial court judge during jury
selection bolstered the credibility of juror declarations of impartiality. Gardner, 568 F.3d
at 889-90.

We are satisfied that this case is not as extreme as Irvin, and we decline the
defendants' invitation to second-guess jurors' assurances that they could disregard pretrial
publicity and their previous impressions. As discussed in relation to presumed prejudice,
there was no smoking-gun reporting in this case. The jury pool here was far less polluted
99



by preconceptions on guilt; in Irvin, 90 percent of potential jurors believed the defendant
was guilty. Here, Judge Clark was not forced to excuse 60 percent of the jury pool at the
outset. The number of jurors ultimately seated who had to set aside their earlier opinions
was half of that who would have had to do so in Irvin; and none of them expressed
community outrage. We also are reassured here by the protective measures taken by
Judge Clark, including use of jury questionnaires and individual voir dire.

We do find it necessary to express a word of caution on the conduct of sound voir
dire before leaving the subject of actual prejudice. Our review of the individual voir dire
in this case reveals several instances when Judge Clark appeared to have taken it upon
himself to rehabilitate a venire panel member. This effort typically took the form of
summarizing the panel member's previous responses to questions in a way that would
minimize evidence of bias and then asking for confirmation. In addition, the questioning
prosecutor used leading questions on several occasions to induce panel members to voice
their ability to be impartial. These behaviors by a judge or a prosecutor cloud appellate
evaluation of the record on the actual prejudice, particularly the difficulty of finding
unbiased jurors, because we must be mindful of the unintended influence a trial judge and
a lawyer for the State may have over lay jurors intimidated by the possibility of
participation in deciding a difficult case in an unfamiliar environment. See Skilling, 561
U.S. at 455-56 (Sotomayor, J., concurring and dissenting) (criticizing trial judge for
addressing topics of juror bias in cursory fashion, failing to use probing, open-ended
questions about jurors' opinions, beliefs).

We urge our district judges and all counsel to refrain from suggesting panel
member answers that will defeat challenges for cause. Avoidance of these sorts of
interactions is necessary to merit the deference inherent in our abuse of discretion review
of a judge's ultimate decision on actual prejudice. See Skilling, 561 U.S. at 447
(Sotomayor, J., concurring and dissenting) ("In particular, reviewing courts are well
100



qualified to inquire into whether a trial court implemented procedures adequate to keep
community prejudices from infecting the jury. If the jury selection process does not befit
the circumstances of the case, the trial court's rulings on impartiality are necessarily
called into doubt.").

Statutory Claims

We have previously interpreted our state venue change statute to say that the
"burden is on the defendant to show prejudice exists in the community, not as a matter of
speculation, but as a demonstrable reality." State v. Anthony, 257 Kan. 1003, 1013, 898
P.2d 1109 (1995).

The first statutory claim by the defense is that we have interpreted and applied
K.S.A. 22-2616(1) in an unconstitutional manner. The second is that Judge Clark abused
his discretion in denying the defendants' repeated K.S.A. 22-2616(1) motions for change
of venue.

On the constitutional challenge to our interpretation and application of the statute,
J. Carr has relied on language from Sheppard: "[T]here is nothing that proscribes the
press from reporting events that transpire in the courtroom. But where there is a
reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the
judge should . . . transfer it to another county not so permeated with publicity." Sheppard
v. Maxwell, 384 U.S. 333, 362-63, 86 S. Ct. 1507, 16 L. Ed. 600 (1966). He argues that
this language establishes a standard of proof of "reasonable likelihood" of unfair trial
under the Sixth Amendment. In contrast, he asserts, Kansas courts have elevated the
statutory standard of proof from "reasonable likelihood" to "absolute certainty."

101



We disagree. The standard of proof in our precedent is "reasonable certainty" that
the defendant cannot obtain a fair trial in the ordinary venue. Anthony, 257 Kan. at 1013;
see State v. Lumbrera, 252 Kan. 54, 57, 845 P.2d 609 (1992); State v. Ruebke, 240 Kan.
493, 499, 731 P.2d 842 (1987).. This is wholly consistent with that part of federal
constitutional law on which J. Carr focuses. See Mayola v. Alabama, 623 F.2d 992, 997
(5th Cir. 1980) (Supreme Court decisions create standard by which Sixth Amendment
compels change of venue when party "adduces evidence of inflammatory, prejudicial
pretrial publicity that so pervades or saturates the community as to render virtually
impossible a fair trial by an impartial jury drawn from that community"); Williams v.
Vasquez, 817 F. Supp. 1443, 1473 (E.D. Cal. 1993), aff'd. Williams v. Calderon, 52 F.3d
1465 (9th Cir. 1995) (Sixth Amendment due process considerations require change of
venue if trial court is "unable to seat an impartial jury because of pretrial publicity");
United States v. Campa, 459 F.3d 1121, 1143 (11th Cir. 2006) (venue change warranted
only upon showing by defendant that widespread, pervasive pretrial publicity saturates
community, "reasonable certainty that such prejudice will prevent him from obtaining a
fair trial by an impartial jury"); see also Fed. R. Crim. P. 21(a) ("[T]he court must transfer
the proceeding against that defendant to another district if the court is satisfied that so
great a prejudice against the defendant exists in the transferring district that the defendant
cannot obtain a fair and impartial trial there."); 33 A.L.R.3d 17, § 3(a) (numerous federal,
state courts hold change of venue required only when "the prospects of the defendant not
receiving a fair and impartial trial are "reasonably certain," or "likely").

Moving to the abuse of discretion claim, we have established a pattern of
evaluating whether the level of prejudice warrants a venue change under the statute by
examining nine factors. State v. McBroom, 299 Kan. __, ___, 325 P.3d 1174 (2014) (slip
op. at 25). Several of the factors are similar to those set out in Skilling for presumed
prejudice analysis. We review:

102



"[1] the particular degree to which the publicity circulated throughout the community; [2]
the degree to which the publicity or that of a like nature circulated to other areas to which
venue could be changed; [3] the length of time which elapsed from the dissemination of
the publicity to the date of trial; [4] the care exercised and the ease encountered in the
selection of the jury; [5] the familiarity with the publicity complained of and its resultant
effects, if any, upon the prospective jurors or the trial jurors; [6] the challenges exercised
by the defendant in the selection of the jury, both peremptory and for cause; [7] the
connection of government officials with the release of the publicity; [8] the severity of
the offense charged; and [9] the particular size of the area from which the venire is
drawn." State v. Higgenbotham, 271 Kan. 582, 592, 23 P.3d 874 (2001) (citing State v.
Jackson, 262 Kan. 119, 129, 936 P.2d 761 [1997]).

This court originally adopted these factors from an A.L.R. report published in
1970, which examined pretrial publicity as grounds for a venue change. See State v.
Ruebke, 240 Kan. at 499-500 (citing 33 A.L.R.3d 17, § 2[a]). It has continued to employ
them as recently as a few weeks ago. See McBroom, 299 Kan. at __ (slip op. at 25).

On the record before us, the first, second, fifth, and eighth factors favored transfer
of venue out of Sedgwick County.

On the first factor, Dahl's compilation of press and online publications supported
the existence of a high degree of negative publicity circulated throughout the community.
The July 2002 Kline advertisement and resulting coverage added to it. On the second
factor, Dahl's comparative telephone surveys demonstrated that the effects from pretrial
publicity about the crimes and this case were considerably less pronounced in Wyandotte
County. And the Kansas City version of the Kline ad did not name R. Carr or call him a
murderer. On the fifth factor, Dahl's research also showed that a significant percentage of
the Sedgwick County jury pool was affected by what they read and heard about the
defendants; and four of the trial jurors admitted that they came to the courtroom with
103



opinions favoring guilt. On the eighth factor, the most serious charged offenses could not
have been more severe or their potential consequences more irreversible.

The five other factors enumerated for the first time in Ruebke favored denial of the
defendants' motions.

On the third factor, 21 months elapsed between the first rush of publicity in the
immediate aftermath of the crimes and the defendants' arrests and the beginning of jury
selection. Although other spikes in publicity occurred in the interim, it is plain that none
ever matched the breadth and intensity of early coverage. On the fourth factor, Judge
Clark employed jury questionnaires and individual voir dire, both of which had a natural
tendency to encourage candor from prospective jurors asked about sensitive subjects. A
preliminarily qualified group of 60 prospective jurors was assembled without the
necessity of examination of the nine panels of 20 Judge Clark was prepared to call. On
the sixth factor, venire panel members who were unable or unwilling to set aside negative
publicity about the defendants or any opinion of guilt such publicity had a role in
inducing were excused. On the seventh factor, nothing in the record would support an
assertion that representatives of the State had any particular role in publicizing
information about the crimes or the case, and the defendants have wisely conceded the
point. And, finally, as discussed in relation to the Skilling presumed prejudice factors, the
ninth factor of size of the community cut against venue transfer. Wichita exceeds other
Kansas cities in population.

Our case precedents also provide useful parallels for this case. See McBroom, 299
Kan. at __ (slip op. at 26) (no error to deny venue change despite survey showing 69.3
percent of respondents believed defendant "probably," definitely" guilty); Higgenbotham,
271 Kan. at 593-95 (no error to deny motion to change venue despite defendant's venue
survey of Harvey county residents showing 95.7 percent of respondents recall case with
104



minimal prompting, 60.6 percent of respondents believed defendant "definitely,"
"probably" guilty); Jackson, 262 Kan. at 129-32 (no error to deny venue change despite
defendant's survey confirming 89.7 percent of respondents recalled case, 60 percent had
already decided defendant "definitely," "probably" guilty); State v. Anthony, 257 Kan.
1003, 1007, 1014-15, 898 P.2d 1109 (1995) (no error to deny motion to change venue
despite defendant's public opinion poll of Salina residents showing 97.5 percent had
heard of case, 63.8 percent believed evidence strong); State v. Swafford, 257 Kan. 1023,
1035-36, 897 P.2d 1027 (1995) (companion case to Anthony; same).

The defendants' attempt to distinguish these cases because the defendants were not
being tried under threat of the death penalty is undercut by our decision in State v. Verge,
272 Kan. 501, 34 P.3d 449 (2001). Verge was a death penalty prosecution.

In that case, defendant Robert L. Verge was convicted of one count of capital
murder for the premeditated killings of Kyle and Chrystine Moore in Dickinson County.
The defense had engaged Litigation Consultants, Inc., the same firm that prepared the
venue survey in this case, to compare potential jurors in Dickinson County to those in
Sedgwick County. The results showed 96.7 percent of the Dickinson County respondents
could recall the case; 71.7 percent had talked about it; and 64 percent believed Verge was
either "definitely" or "probably" guilty. 272 Kan. at 505. These results were similar to
those reported in this case—96 percent of Sedgwick County respondents recalled the case
and 74 percent held opinions on guilt. In Verge, we affirmed the district judge's decision
not to transfer venue.

Here, given the mix of evidence on the nine factors we use to apply K.S.A. 22-
2616(1) and our consistent caselaw handed down over more than two decades, we cannot
say that "no reasonable person" would have agreed with Judge Clark's decisions on the
defendants' motions for change of venue. See State v. Ward, 292 Kan. 541, 550, 256 P.3d
105



801 (2011) ("Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or
unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial
court.").

The defendants' statutory claims are without merit.

2. SEVERANCE

R. Carr challenges the district court's repeated refusals to sever the guilt phase of
the defendants' cases, arguing that the error deprived him of his constitutionally protected
right to a fair trial.

Additional Factual and Procedural Background

Defendants requested severance of their cases for preliminary hearing. The State
opposed severance, saying there was no reason to think at that point that R. Carr and J.
Carr would mount antagonistic defenses and that there were no problems with one of
them making an incriminating statement that would affect the other. See Bruton v. United
States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) (codefendant's confession
inculpating accused inadmissible against accused; Confrontation Clause requires
defendant charged with crime to have opportunity for cross-examination of declarant).
Judge Clark V. Owens II, who was handling the defendants' case at the time, denied the
severance request at the April 6, 2001, hearing on the motion. He said it was important to
consider whether Holly G. would have to testify "twice or once." He also said that
analysis of whether the cases should be severed for trial would be "a totally separate
issue," inviting the defense to renew its motion before trial if it still believed severance
was necessary and differentiating between the ability of a judge presiding over a
preliminary hearing to analyze evidence and that of a jury at trial.
106




R. Carr filed another motion to sever trial on March 22, 2002. In a supplement to
his memorandum in support of the motion filed under seal the same day, he outlined the
theory of his defense. The State did not get a copy of this supplement, which stated:

"2. On the evening of December 14, 2000, Reginald Dexter Carr, Jr., and his brother,
Jonathan Carr, met at the home of Tronda Adams and Toni Green. Reginald and Jonathan
Carr were both traveling in a beige Toyota Camry belonging to Stephanie Donnelly.

"3. After leaving the Green residence together, Reginald Dexter Carr, Jr. and Jonathan
Carr traveled to the apartment complex located at 5400 E. 21st Street in Wichita . . . .
Jonathan Carr dropped off Reginald Dexter Carr, Jr. and left in the beige Toyota.
Reginald Dexter Carr, Jr., not wanting to alert Stephanie Donnelly that he had loaned her
car to his brother, left in his (Reginald's) white Plymouth Fury . . . . Mr. Reginald Dexter
Carr, Jr., traveled around the northern part of Wichita . . . and attempted to sell drugs.

"4. Mr. Jonathan Carr met another individual . . . and . . . went to 12727 East Birchwood
and committed the crimes more fully set out in the Amended Complaint/Information . . . .

"5. Sometime after the commission of the crimes . . . Jonathan Carr located his brother
. . . and made arrangements for Reginald Dexter Carr, Jr., to store the property taken from
the Birchwood address in Stephanie Donnelly's apartment at 5400 E. 21st Street, Apt.
819. Prior to the commission of the crimes at the Birchwood address, Reginald
Dexter Carr, Jr. had no knowledge of the facts that were about to unfold, nor did he
participate in any preparation or plan to effect the same.

. . . .

"8. . . . Reginald Dexter Carr, Jr., . . . submits there is no forensic evidence that links him
to the Dodge Dakota pickup truck, no conclusive forensic evidence that links him to the
scene at 12727 Birchwood, no eyewitness accounts that place him at the Birchwood
scene or the scene on Greenwich Road where the bodies were discovered.
107




"9. In contrast, . . . Jonathan Carr is identified by H.G. as being at both the Birchwood
address and the scene on Greenwich Road. He is linked to the scene at Birchwood by
forensic DNA evidence and implicated by his own statements to Tronda Adams.

"10. Accordingly, . . . should the Defendants . . . be tried together, Mr. Reginald Dexter
Carr, Jr.'s defense will . . . be antagonist[ic] to any defense propounded by his brother,
Jonathan Carr."

At a motions hearing on April 23, 2002, the State requested copies of all
documents filed in support of the motion, including the sealed supplement. R. Carr
objected to disclosure of the supplement; his counsel said he would rather withdraw it
than prematurely disclose his theory of defense to the State, even if nondisclosure meant
he was left without a factual basis to support the motion to sever. The district judge
ultimately ruled that the defense did not have to disclose the supplement, but he did not
consider it in support of the motion.

During argument on the motion, R. Carr's counsel observed that the failure to
sever created a Bruton issue because Tronda Adams would testify regarding statements J.
Carr made to her about R. Carr. Counsel further argued, without discussing particulars,
that the defendants would advance antagonistic defenses. J. Carr's counsel, Ronald Evans,
confirmed that his client's defense would be antagonistic to R. Carr:

"Judge, there is no way if this case proceeds the way it is now with these brothers
being tried together that I cannot prosecute Reginald Carr. That's true in the first stage,
but it's absolutely true in the second stage . . . .

". . . I have to be Reginald's prosecutor. That adds another prosecutor in the
room. There is no way that doesn't prejudice Reginald.

108



". . . We're going to get into things on Reginald that there's no way the State
would get to introduce into evidence against him if he was sitting there by himself."

The prosecutor recognized the danger for prejudice in a joint trial and suggested
that two juries could be impaneled.

Regarding Adams' testimony specifically, the State said that it could easily avoid
eliciting objectionable testimony from her. But counsel for J. Carr argued that he would
nevertheless need to elicit the objectionable testimony from Adams in furtherance of his
client's defense.

The prosecutor then elaborated on the two-jury suggestion, stating that one jury
could be removed from the courtroom for testimony that might be prejudicial to the
defendant it was assigned, and then, if the defendants were found guilty of at least one
capital crime, their juries could be separated to hear severed penalty phase trials. She said
her proposal would solve the problem of how much "time and effort that all would have
to place in this case and . . . assure that the rights of the victims are protected as well as
the rights of the defendant[s]."

R. Carr's counsel opposed the district attorney's proposal. J. Carr's counsel said
that he was not opposed to the suggestion, but he would have to see the proposal in
writing. He also said that "trying to do two juries is going to be more work than severing
the case and just doing two trials."

After a break, the district attorney repeated her proposal but said she was not
advocating for severance. "[W]e could adequately, more than adequately, constitutionally
protect the rights of the defendants and entitle the State to a fair trial without the necessity
for severance," she said.
109




The district judge denied the severance motion with leave to refile it if the
situation warranted, "especially when all the discovery is closed . . . ."

J. Carr filed another motion for severance on July 30, 2002, which R. Carr joined.
At an August 9, 2002, pretrial conference, Judge Clark heard argument on the motion.
Counsel for J. Carr first outlined J. Carr's theory of defense:

"Number one, the defendants have an antagonistic defense. Judge, the clearest
way I can put Jonathan Carr's defense right now is he denies categorically his
participation in the events he's accused of. His defense will be he was in Tronda Adams'
house early the morning of December 15th. His big brother Reggie brought items over,
cash, a ring, left those items with him. He was not told of the crime. He did not
participate in the crime. He is prepared to present an alibi to the jury.

"Now, that is as clear as I can make our defense. I can't think of a way to put it
that doesn't put the State on notice of where we're going."

Counsel said that he had not been told the details of R. Carr's planned defense, but R.
Carr's counsel confirmed his client intended to assert his innocence at trial and to point
the finger at J. Carr.

The State argued that the parties had to demonstrate actual prejudice, not mere
speculation, to be entitled to severance and demanded both defendants identify specific
evidence or make proffers that would demonstrate actual prejudice.

R. Carr cited Adams' testimony about statements made by J. Carr that would
prejudice his client. One of the prosecutors acknowledged that this testimony would
constitute a problem under Bruton, 391 U.S. 123. But she argued the State would not be
110



able to introduce the statements at either a joint or separate trial because, absent a waiver,
R. Carr's Fifth Amendment rights would prevent it from doing so. Neither defense
counsel responded to this assertion.

J. Carr's counsel said that, in addition to sponsoring Adams' testimony, he had
planned to put on evidence of R. Carr's prison record. However, because the court
granted R. Carr's motion in limine to exclude evidence of his record, after the State
responded to the limine motion by saying it did not intend to introduce R. Carr's criminal
history under K.S.A. 60-455, J. Carr could not do so in the joint trial. J. Carr's counsel
also said there would be no way relatives of the brothers could testify in a joint trial about
which brother was the leader and which the follower.

Again, Judge Clark refused to sever the proceedings, "for the same reasons . . .
stated when it was first raised."

The State filed successful pretrial motions in limine to prevent defendants from
introducing out-of-court statements made by either one of them unless a hearsay
exception applied. The State also moved successfully to prevent defendants from
introducing evidence of any third party's guilt for the crimes charged as a result of the
Birchwood incident, arguing that Kansas' third-party evidence rule prohibited a defendant
from introducing circumstantial evidence of another's guilt when the State's case against
the defendant was based on direct evidence. The flaws in these rulings are fully discussed
in Section 18 of this opinion.

At trial, J. Carr's defense was simply to hold the State to its burden of proof and to
argue that any crimes proven were committed under the control and influence of his
brother, R. Carr. J. Carr did not advance an alibi theory on any of the three incidents that
formed the basis of the charges.
111




On the other hand, R. Carr sought to defend on the basis that his brother had
committed the Birchwood crimes with someone else.

During opening statements, R. Carr began his attack on J. Carr. His counsel
conceded that R. Carr was guilty of possessing stolen property from the Birchwood home
and victims, but he said the evidence would show R. Carr was not guilty of the many
Birchwood crimes charged. Instead, he asserted, J. Carr and an unidentified, uncharged
black male were present at the Birchwood home while R. Carr was not. R. Carr "spent the
. . . late night hours of the 14th and the early morning hours of the 15th of December
selling drugs in Wichita." Counsel continued:

"He was not . . . with his brother until sometime in the neighborhood of 5:00 or
5:30. He, Reginald Carr, learned that Jonathan Carr was located near Tronda Adams'
house, he went there to help his brother, who was in trouble. While there he saw the
Dodge Dakota truck, filled with items that had been stolen.

"In an attempt to help his brother, Reginald Carr took those items—he didn't get
into the Dodge Dakota truck, the evidence will be that he's never been inside the Dodge
Dakota truck. The Dodge Dakota truck was driven to Stephanie Donley's apartment
complex, not by Reginald, not by Jonathan, but by a third black male."

J. Carr's counsel objected to this as "argumentative, unsupported by the evidence,"
but Judge Clark overruled the objection.

Later that day, during a break in testimony, J. Carr's counsel moved for a mistrial,
arguing that the "opening statements illustrate an argument that we've made many times
early on in this case as to why we needed to be severed from this matter and have a
separate trial from Reginald Carr," and again moved for severance.

112



Judge Clark overruled the motion for mistrial and did not separately address the
renewed motion for severance.

Each defendant continued to push for severance when evidence that pointed to the
other defendant was admitted. J. Carr renewed the motion when the State moved the
admission of photographs of the victims' property found in R. Carr's possession,
including photographs of Schreiber's watch, Brad H.'s wallet, and Aaron S.'s television. J.
Carr also renewed the severance motion when the State admitted evidence of R. Carr's
Buffalino boots, a wallet containing R. Carr's birth certificate, and a witness statement
law enforcement completed while interviewing Walenta's husband. J. Carr renewed the
motion again when he believed R. Carr opened the door for the State to introduce autopsy
photographs of Heather M. R. Carr renewed the severance motion when a State expert
witness testified to a DNA match between J. Carr and samples recovered from carpet at
the Birchwood home.

Judge Clark rejected all of these renewed motions.

J. Carr also renewed the severance motion when the State's witness discussed
procedures for handling consumable DNA samples associated with R. Carr, and again
when the State moved to admit the engagement ring recovered from J. Carr. Again, Judge
Clark rejected the idea of severance.

During the State's case, J. Carr contributed to the evidence tending to prove R.
Carr's guilt. During his cross-examination of Officer James Espinoza, for example, J.
Carr focused the jury's attention on property from the Birchwood residence found in R.
Carr's possession. During cross-examination of Schreiber, J. Carr emphasized that
Schreiber could identify only R. Carr as one of the men who kidnapped and robbed him.

113



"Q. But one thing you are certain of, Mr. Schreiber, let me get this clear. You've been
certain about this over the last 20 months is Reginald Carr was the driver, is that correct?

"A. Yes.

"[J. Carr's Counsel:] Q. Okay. No further questions. Thank you very much."

Before Adams took the stand, J. Carr's counsel reminded Judge Clark out of the
hearing of the jury that R. Carr filed a motion in limine pretrial to exclude certain
testimony about him from Adams. J. Carr's counsel requested "guidance from the Court"
about the permissible scope of his cross-examination of Adams.

One of the prosecutors informed the judge that there were two separate areas on
which she had instructed Adams. One had to do with ownership of a weapon given to
Adams; J. Carr had mentioned that it belonged to R. Carr. The other area concerned a
remark Adams had overheard J. Carr make during a telephone conversation on the
morning of December 15: "[W]hat's Smoke got me into now?" "Smoke" was a nickname
used by R. Carr. The prosecutor said she planned to put on evidence about the gun and
telephone calls but "not the statement[s] that [J. Carr] made that would in any way
implicate Reginald Carr."

Judge Clark said that evidence from Adams on J. Carr's statements about R. Carr
remained inadmissible.

J. Carr's counsel made a proffer of Adams' excluded testimony by examining her
outside the presence of the jury. Adams said J. Carr initially provided her with a silver
gun. When J. Carr came to her home on December 11, 2000, he had a black gun, gave it
to Adams, and took back the silver gun. He told Adams that the black gun belonged to
"Smoke" and the silver gun belonged to him. On December 13, 2000, Adams said J. Carr
114



came over and took the black gun back. Adams also said that she overheard J. Carr say
while on the telephone early on December 15: "[W]hat has Smoke got me into?"

J. Carr's counsel renewed the severance motion again when Judge Clark ordered
R. Carr to wear leg and hand restraints in the courtroom during the guilt phase of the trial.
That morning, R. Carr had refused to come to trial. And the Sheriff's Department reported
that he was making threats to sheriff's officers. J. Carr's counsel argued that R. Carr's
misconduct would prejudice his client. He said that Judge Clark was "probably tired of
hearing it, but Reginald Carr continues to infect our right to a fair trial."

One of the prosecutors then brought up examples of bad behavior by R. Carr in the
courtroom the day before, "one of which was when [R. Carr's counsel] got up to look at a
video, the defendant, Reginald Carr, took his chair, pushed [his counsel's] chair by the
court guards, physically moved his chair knee-to-knee contact with me in the courtroom."
This required court guards "to get up and move him," she said.

Judge Clark said he had seen R. Carr do nothing in the courtroom "that seems
disruptive to the process." But he ordered the leg and hand restraints as security
measures, making provision to shield them from the view of the jury. He again made no
ruling on the renewed motion for severance.

Later that afternoon, Donley took the stand. During R. Carr's cross-examination,
counsel attempted to elicit statements R. Carr had made to her about J. Carr the morning
of December 15, 2000. J. Carr's counsel objected on hearsay and Bruton grounds and
renewed his motion for severance. Judge Clark sustained the objections, instructed R.
Carr's counsel to avoid the line of questioning, but overruled the motion.

115



The defendants again argued unsuccessfully that Judge Clark should have severed
their prosecutions when they moved for judgment of acquittal at the close of the State's
evidence. They did so again, unsuccessfully, at the close of all evidence admitted in the
guilt phase.

J. Carr's counsel devoted a significant portion of his closing argument on the
evidence supporting R. Carr's guilt. He reminded the jury that Schreiber identified only
R. Carr and that Schreiber's watch was found in R. Carr's possession. With regard to the
Walenta murder, J. Carr defended the reliability of Walenta's photo array identification of
R. Carr.

Earlier in trial, when J. Carr had cross-examined the coroner on the Birchwood
crimes, he attempted to establish that only one man fired the shots that killed the
Birchwood victims.

"Q. Based on this, in your opinion, would it not be consistent with one shooter moving
down the line shooting Heather and shooting Aaron, then shooting Brad and finally
shooting Jason?

"A. I can't comment on that. I can only tell you about the injuries that I found at autopsy."

J. Carr's counsel argued during closing that there was only one gun and one shooter:

"And that evidence shows who shot and killed four individuals. That person is
Reginald Carr with that .380 black Lorcin handgun. Reginald Carr was not alone. But the
evidence will show who was playing the lead role that night directing things, taking most
of the things. That person again was Reginald Carr."

116



He also reinforced the reliability of Holly G.'s in-court identification of R. Carr:

"[Holly G.]'s eyewitness identification of Reginald Carr is consistent and it's solid. If you
go chronologically through the order in which she talks to law enforcement, you will see
the same description over and over again."

And he attempted to explain Holly G.'s failure to identify R. Carr at preliminary hearing:

"Now, at the preliminary hearing she identified Jonathan as the person she picked out of
the photo array, not Reginald. But we know Reginald shaved his head and was wearing
eyeglasses at the preliminary hearing. And at the time of trial she makes that correction[]
and makes the identification."

J. Carr's counsel also argued that the property found in R. Carr's possession and law
enforcement's stop of his Plymouth near the Birchwood residence corroborated other
evidence of R. Carr's involvement in the Birchwood crimes. He then highlighted the
State's DNA evidence, cigar ash evidence, and Holly G's contraction of HPV.

J. Carr's counsel also argued that the black handgun connected to all three
incidents belonged to R. Carr.

At the conclusion of his argument, counsel for J. Carr admitted to J. Carr's
involvement in some of the charged crimes, but he placed the bulk of moral responsibility
on his codefendant brother:

"Please remember that some of these crimes do remain unproven as to Jonathan
Carr's guilt. Some of them he is actually innocent of. Now, just because the codefendant
Reggie is guilty of all of the charges, just because the evidence shows regarding Jonathan
some involvement on some of the counts, don't go back there and just check the box
guilty all of the above. Please give Jonathan separate consideration on each count. Please
117



consider his guilt or innocence separate from damning evidence against his brother
Reginald. It shouldn't be guilt by association. It should be guilt beyond a reasonable
doubt. Remember the testimony and our sole admitted exhibit showed Jonathan was
supposed to be on a train to Cleveland from Newton in the early morning hours of the
15th of December. . . . A train that would have taken him back to his family and friends,
but a train he never made because of Reggie."

Standard of Review and Legal Framework

The decision whether to sever a trial is one within the trial court's discretion. State
v. Reid, 286 Kan. 494, 519, 186 P.3d 713 (2008) (citing State v. White, 275 Kan. 580,
589, 67 P.3d 138 [2003]).

Judicial discretion is abused if judicial action is arbitrary, fanciful or unreasonable,
or based on an error of law or fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801
(2011).

Under Kansas law, "[t]wo or more defendants may be charged in the same
complaint, information or indictment if they are alleged to have participated in the same
act or transaction or in the same series of acts or transactions constituting the crime or
crimes." K.S.A. 22-3202(3). However, "[w]hen two or more defendants are jointly
charged with any crime, the court may order a separate trial for any one defendant when
requested by such defendant or by the prosecuting attorney." K.S.A. 22-3204.

"[S]everance should be granted when it appears necessary to avoid prejudice and
ensure a fair trial to each defendant." State v. Davis, 277 Kan. 231, 239, 83 P.3d 182
(2004) (citing State v. Aikins, 261 Kan. 346, 360, 932 P.2d 408 [1997]); see Zafiro v.
United States, 506 U.S. 534, 539, 113 S. Ct. 933, 122 L. Ed. 2d 317 (1993) (district court
should grant severance if there is serious risk that joint trial "would compromise a
118



specific trial right of one of the defendants, or prevent the jury from making a reliable
judgment about guilt or innocence"). Although a single trial may serve judicial economy
and ensure consistent verdicts, the right of a defendant to a fair trial must be the
overriding consideration. State v. Martin, 234 Kan. 548, 550, 673 P.2d 104 (1983).

We have employed several factors to determine whether there was sufficient
prejudice to mandate severance. Davis, 277 Kan. at 240 (quoting State v. Butler, 257
Kan. 1043, 1063, 897 P.2d 1007 [1995], modified on other grounds 257 Kan. 1110, 916
P.2d 1 [1996]). We consider:

"'(1) that the defendants have antagonistic defenses; (2) that important evidence in favor
of one of the defendants which would be admissible on a separate trial would not be
allowed on a joint trial; (3) that evidence incompetent as to one defendant and
introducible against another would work prejudicially to the former with the jury; (4) that
the confession by one defendant, if introduced and proved, would be calculated to
prejudice the jury against the others; and (5) that one of the defendants who could give
evidence for the whole or some of the other defendants would become a competent and
compellable witness on the separate trials of such other defendants.'" 277 Kan. at 240
(quoting Butler, 257 Kan. at 1063).

The party moving for severance has the burden to demonstrate actual prejudice to
the district court judge. State v. Hunter, 241 Kan. 629, 633, 740 P.2d 559 (1987). But the
United States Supreme Court has said that a trial judge "has a continuing duty at all
stages of the trial to grant a severance if prejudice does appear." Schaffer v. United States,
362 U.S. 511, 516, 80 S. Ct. 945, 4 L. Ed. 2d 921 (1960); see United States v. Peveto, 881
F.2d 844, 857 (10th Cir. 1989).

On appeal from a denial of severance, the party claiming error has the burden to
establish a clear abuse of discretion. State v. White, 275 Kan. 580, 589, 67 P.3d 138
119



(2003). We also have held: "When a decision is made regarding joinder or severance,
even if it is determined that there was an abuse of discretion, the defendant has the
burden of showing prejudice requiring reversal." State v. Boyd, 281 Kan. 70, 80, 127 P.3d
998 (2006) (citing State v. Crawford, 255 Kan. 47, 54, 872 P.2d 293 [1994]). But
evolving caselaw generally places the burden of demonstrating harmlessness on the party
benefitting from the error. See Ward, 292 Kan. at 568-69. We apply that general rule in
the severance context today.

Evaluation of Factors

In the guilt phase of this trial, there is no question that the defendants had
antagonistic defenses, and the State concedes this point.

R. Carr argued that J. Carr committed the Birchwood crimes with another person.
J. Carr's counsel emphasized the relative weakness of the evidence against his client in
the Schreiber and Walenta incidents and consistently stressed the evidence of R. Carr's
guilt in the Birchwood incident. Each defendant did his best to deflect attention from
himself on the Birchwood crimes by assisting in the prosecution of the other. R. Carr
insisted he was not involved at all until a temporary storage arrangement was needed for
the stolen property, and J. Carr essentially conceded guilt of both defendants but set up R.
Carr as the leader, and thus the more culpable, of the pair. See White, 275 Kan. at 590
(quoting State v. Pham, 234 Kan. 649, 655, 675 P.2d 848 [1984]) (classic example of
"intrinsically antagonistic defenses is where both defendants blame each other for the
crime while attempting to defend against the State's case"); see also Zafiro, 506 U.S. at
539 (interpreting federal rule on severance similar to Kansas statute: "When many
defendants are tried together in a complex case and they have markedly different degrees
of culpability, . . . risk of prejudice is heightened", citing Kotteakos v. United States, 328
U.S. 750, 774-75, 66 S. Ct. 1239, 90 L. Ed. 1557 [1946]).
120




On the second factor, R. Carr contends that the denial of severance forced
exclusion of testimony from Donley that was exculpatory to him but would have violated
Jonathan's Sixth Amendment confrontation rights under Bruton v. United States, 391 U.S.
123, 137, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). See State v. Rodriquez, 226 Kan. 558,
561, 601 P.2d 686 (1979) (following Bruton).

On the second factor, it is also important for us to consider that each defendant
apparently made at least one personally incriminating statement about being the one who
fired the shots that killed Heather M., Aaron S., Brad H., and Jason B. Both of these
statements were referenced during the penalty phase. Temica, the defendants' sister,
testified that R. Carr told her he shot the four friends. One of the prosecutors referenced a
similar statement by J. Carr, apparently made to fellow prisoners while he was in jail
awaiting trial. When the State argued to Judge Clark pretrial that an incriminating
statement such as these by one defendant that implicated the other—in that instance, J.
Carr's "[W]hat's Smoke got me into?" remark within earshot of Adams—would not have
been admissible in a separate trial, it was plainly wrong. J. Carr's remark about "Smoke,"
given the context in which it was uttered, could have come in at a separate trial of R. Carr
through J. Carr himself. It also qualified as a declaration against interest under K.S.A. 60-
460(j), if it had to be admitted in a separate trial of either defendant through Adams or the
person on the other end of J. Carr's telephone call. In the case of each of the defendant's
statements about being the Birchwood shooter, no evidence of either statement could be
admitted in the guilt phase of a joint trial under Bruton, 391 U.S. 123, because one
defendant's confession to that act inevitably incriminated the other as the aider and
abettor of that act. But each defendant's statement could have been admitted—and
undoubtedly both would have been admitted by the State—in that defendant's separate
trial. Each statement could have come into evidence through its hearer or as a declaration
against interest under K.S.A. 60-460(j) or as a confession under K.S.A. 60-460(f). And R.
121



Carr could have tried to use J. Carr's statement claiming personal responsibility for the
shooting in the soccer field to bolster his "J. Carr-plus-third-person" defense.

This evidence that was inadmissible in a joint trial because of Bruton, 391 U.S.
123, but that would have been admissible at a separate trial of R. Carr, also includes R.
Carr's eventually proffered own testimony about what J. Carr said to him during three
telephone calls and in person on the night of the Birchwood crimes. Judge Clark ruled
erroneously, as fully discussed in Section 18 of this opinion, that these portions of R.
Carr's proffer must be excluded under Kansas' third-party evidence rule and as hearsay.
Had he not made these erroneous rulings, he would have had to consider the effectiveness
of severance to enable R. Carr to get his defense before the jury that would determine his
guilt alone.

The third factor from our precedent on severance is not applicable. The fourth
factor cut in favor of the State because apparent confessions by each defendant could
have come in at separate trials, as discussed above. The fifth factor would be inapplicable
unless we assume that the State was willing to grant immunity to one brother to force him
to testify against the other in the other's separate trial. This seems unlikely to have
happened.

We conclude that Judge Clark's repeated refusal to sever the guilt phase of the
prosecution against defendants for trial was an abuse of the judge's discretion.

To begin with, two mistakes of law are immediately recognizable. See Ward, 292
Kan. at 550 (judge abuses discretion by making mistake of law). Judge Clark failed to do
the necessary analysis when he ruled against severance at the pretrial hearing on August
9, 2002, "for the same reasons . . . stated when it was first raised." There were three
reasons stated when the subject of severance first arose: the absence of antagonistic
122



defenses, the absence of an incriminating statement from either defendant, and the desire
to avoid putting Holly G. through two trials. The first of these reasons no longer applied.

The second mistake was Judge Clark's apparent willingness to follow the State's
misstatement of the law during the same pretrial hearing about the continued
inadmissibility of Adams' testimony about J. Carr's "[W]hat's Smoke got me into?"
statement in separate trials.

Furthermore, we see an abuse of discretion in the dearth of record support for
Judge Clark's virtually indistinguishable, nearly completely unexplained rulings over
time, even though the conflict between the defendant's theories became more and more
clear and the pile of evidence that would be excluded because of the joint trial grew ever
taller. Given Judge Clark's continuing duty to carefully consider severance to avoid
prejudice to a defendant, and the overriding status of the defendant's right to fair trial,
Judge Clark's decisions were progressively unreasonable.

Prejudice

R. Carr urges us to conclude that Judge Clark's abuse of discretion led not just to
prejudice but to prejudice requiring reversal.

R. Carr argues that the State's evidence against J. Carr for the Birchwood crimes
was strong, far stronger than its evidence against him. The hair root recovered at the
Birchwood home, matching semen samples from the victims, and test results confirming
that bloodstains on J. Carr's clothing matched or could not exclude victims Heather M.
and Holly G. placed J. Carr at the scene as one of the intruders, and J. Carr failed to
contest this in any meaningful way. Because J. Carr, as one of the perpetrators, had to
know the identity of the second perpetrator, when J. Carr launched his trial strategy of
123



minimizing his own role in these offenses and emphasizing Reginald's predominant one,
a vouching dynamic similar in force to inculpatory accomplice testimony was created,
adding credence to the State's case against R. Carr. Meanwhile, Bruton combined with
Judge Clark's erroneous rulings on the third-party evidence and hearsay to prevent R.
Carr from using the State's and his own evidence against J. Carr to even the playing field.

R. Carr suggests that this skewed the appropriate burden of proof and that it means
we cannot know whether the jury convicted him based on the State's evidence, Jonathan's
vouching, or a combination of the two—rendering the verdict unreliable. See Zafiro, 506
U.S. at 543-44 ("Joinder is problematic in cases involving mutually antagonistic defenses
because it may operate to reduce the burden on the prosecutor, in two general ways. First,
joinder may introduce what is in effect a second prosecutor into a case, by turning each
codefendant into the other's most forceful adversary. Second, joinder may invite a jury
confronted with two defendants, at least one of whom is almost certainly guilty, to
convict the defendant who appears the more guilty of the two regardless of whether the
prosecutor has proven guilt beyond a reasonable doubt as to that particular defendant.");
State v. McQueen, 224 Kan. 420, 425, 582 P.2d 251 (1978) ("[W]hen the evidence is
clear and convincing as to one defendant and not so as to the other, failure to sever may
well cause prejudice which will result in manifest injustice in violation of constitutional
due process."); but see State v. Holley, 238 Kan. 501, 508, 712 P.2d 1214 (1986) ("claim
of disparate evidence justifies severance in only the most extreme cases") (citing United
States v. Bolts, 558 F.2d 316 [5th Cir. 1977]).

The State's first response is that the strength of its case against R. Carr
demonstrates the reliability of the jury's verdict. It is correct that its independent case
against R. Carr was overwhelming. See McQueen, 224 Kan. at 425 ("When the evidence
of participation and identity of those charged is clear and convincing, prejudice from a
joint trial may not be great.")
124




Schreiber, Walenta, and Holly G. all identified R. Carr. Nuclear DNA testing
implicated R. Carr as well as J. Carr, specifically blood from R. Carr's shirts and shorts
that matched Heather M. and foreign material recovered from Holly G.'s thigh that
excluded all known contributors other than him and his brother. DNA from Schreiber's
watch was generally consistent with R. Carr's genetic markers. Mitochondrial DNA
testing pointed to R. Carr as a possible contributor of one hair collected from the
Birchwood home. The State's ballistics expert testified that the black Lorcin was used in
all three incidents, and that gun was linked to R. Carr by the eyewitness identifications of
him using a similar black gun. Two shoeprints observed at the Birchwood home were
consistent with R. Carr's Buffalino boots. Testimony from law enforcement personnel
involved in R. Carr's arrest tended to show he attempted to flee by preparing to jump off
Donley's balcony, and he gave an alias rather than his correct name. See State v. Phillips,
295 Kan. 929, 949, 287 P.3d 245 (2012) (evidence of flight, use of alias is probative of
consciousness of guilt); State v. Ross, 280 Kan. 878, 881, 127 P.3d 249, cert. denied 548
U.S. 912 (2006) (citing State v. Walker, 226 Kan. 20, 21, 595 P.2d 1098 [1979]) (same).
R. Carr had genital warts, and Holly G. learned a few months after her sexual assault that
she had contracted HPV, the virus that causes genital warts. Investigators collected
larger-caliber ashes, consistent with those from a cigar, inside the Birchwood home. No
other ashtrays, cigarettes, or other smoking materials were found in the home. When
arrested, a partially smoked cigar with a plastic tip and a cigar box lid were recovered
from the pockets of the leather coat Holly G. testified that R. Carr wore during the
crimes. After R. Carr's arrest, law enforcement recovered numerous pieces of property
owned by the Birchwood victims and Schreiber, as well as other highly incriminating
evidence such as ATM receipts connected to the Birchwood victims' accounts, from R.
Carr's person, from his girlfriend's apartment, and from the area and vehicles around it.

125



The State's evidence also challenged the credibility of R. Carr's defense, to the
extent he was able to advance it.

The State's witnesses placed R. Carr near the scene of the Birchwood crimes
shortly after they were reported. Holly G. testified that R. Carr drove Jason B.'s truck
when the group traveled to the soccer field shortly after 2 a.m. Both intruders left
together in the truck after the shootings. Sergeant John Hoofer testified about seeing a
truck similar to Jason B.'s in the vicinity of the Birchwood home shortly after 3 a.m.
About an hour later, Hoofer stopped R. Carr in his white Plymouth, after he had twice
driven by the Birchwood home. R. Carr said he was on his way to Donley's apartment.
Donley confirmed R. Carr arrived at her apartment about 4:30 a.m.

Our review of the record persuades us that this was far from a case in which the
State, by way of a joint trial, set the defendants upon each other and then coasted.
Although its path to R. Carr's convictions was made somewhat smoother and straighter
by the judge's related guilt phase errors on severance and on third-party evidence and
hearsay, the State presented compelling evidence of R. Carr's guilt, all of which would
have been admissible in a severed trial. See State v. Pham, 234 Kan. 649, 654, 675 P.2d
848 (1984) ("When the evidence of participation and identity of those charged is clear
and convincing, prejudice from a joint trial may not be great."; citing McQueen, 224 Kan.
at 425).

On the record before us, we hold that R. Carr is not entitled to reversal on this
issue.

126



3. JOINDER OF NONCAPITAL COUNTS

R. Carr challenges the joinder for trial of the noncapital and capital charges against
him. His November 19, 2001, motion to sever the charges was denied.

Kansas' criminal statute on joinder of charges and defendants provides:

"Two or more crimes may be charged against a defendant in the same complaint,
information or indictment in a separate count for each crime if the crimes charged,
whether felonies or misdemeanors or both, are of the same or similar character or are
based on the same act or transaction or on two or more acts or transactions connected
together or constituting parts of a common scheme or plan." K.S.A. 22-3202(1).

"Whether a defendant will be tried on all separate charges in a single trial is a
matter within the discretion of the trial court, and its decision will not be disturbed on
appeal unless there is a clear showing of abuse of discretion." State v. Bunyard, 281 Kan.
392, Syl. ¶ 2, 133 P.3d 14 (2006).

R. Carr argues that Judge Clark erred in denying his motion because the noncapital
and capital charges in the amended complaint cannot be "of the same or similar
character" because they are not subject to the same punishment. He further argues that the
error requires reversal because it is possible that the jury considered or relied upon
evidence pertaining to the Schreiber and Walenta incidents in deciding to impose a
sentence of death, in violation of his rights under the Eighth and Fourteenth
Amendments.

The State supports Judge Clark's decision as legally appropriate, contending that
similarity of punishment is merely one of several factors the court may consider in
deciding whether offenses are "of the same or similar character." It is not, the State
127



asserts, a condition that must be satisfied before a district judge can exercise discretion to
consolidate charges for trial. Should we reach a harmlessness inquiry, the State argues
that R. Carr suffered no prejudice from any joinder error because the statutory capital
sentencing scheme in Kansas combined with the judge's instructions properly limited the
evidence the jury could consider on aggravating circumstances justifying imposition of
the death penalty.

We have previously identified factors relevant to determining whether crimes
qualify as "of the same or similar character." Offenses that have general similarities, that
"require the same mode of trial and the same kind of evidence, and occur in the same
jurisdiction" are sufficiently alike to be tried together. See State v. Crawford, 255 Kan.
47, 53, 872 P.2d 293 (1994) (citing State v. Ralls, 213 Kan. 249, 256-57, 515 P.2d 1205
[1973]). We have also looked to similarity of punishment as another factor to consider.
State v. Barksdale, 266 Kan. 498, 507, 973 P.2d 165 (1999).

The governing statute does not expressly require that joined offenses share
common punishments. Crawford, 255 Kan. at 53. And we are loath to add a requirement
not set out by the legislature. See State v. Hendrix, 289 Kan. 859, 862, 218 P.3d 40
(2009) (when statutory language plain, unambiguous, no need to resort to statutory
construction; appellate court merely interprets language as it appears, does not speculate,
read into statute language not readily found).

Indeed, the plain language of the statute explicitly provides that offenses with
different punishments may be joined for trial. Joinder of offenses, "whether felonies or
misdemeanors or both," is permitted under K.S.A. 22-3202(1). And the punishments for
felonies and misdemeanors are, without question, widely divergent. Compare K.S.A.
2013 Supp. 21-6804 and 6805 (Sentencing Guidelines Act grids for nondrug, drug
128



felonies) with K.S.A. 2013 Supp. 21-6602 (defining classes of misdemeanors, setting out
permissible terms of confinement).

This court embraced such an analysis in State v. Cromwell, 253 Kan. 495, 856
P.2d 1299, holding modified by State v. Willis, 254 Kan. 119, 864 P.2d 1198 (1993),
where we examined whether a district judge abused his discretion by refusing to sever the
trial of two sets of charges for rape, robbery, and murder committed on two separate
occasions. The defendant argued that a difference in the ages of the two victims, a lapse
of 4 years between the two crimes, and the applicability of a hard 40 sentence to one
incident but not the other, rendered the sets of charges sufficiently dissimilar to require
that they be tried separately. 253 Kan. at 511.

On the subject of punishment similarity, we said:

"The application of the 'hard 40' sentence to [one murder] but not to the [other murder] is
not material. The legislature did not consider differences in sentences to be dispositive
because K.S.A. 22-3202(1) speaks of the similarities of the crimes, not the sentences, and
contemplates potential trial of felonies and misdemeanors together. Moreover, while the
consideration of aggravating factors may distinguish the hard 40 from other sentences,
the jury considers whether to impose the hard 40 in a separate proceeding after the guilt
phase of the trial is complete. Thus, evidence of and argument about aggravating factors
need not taint the guilt phase of the trial." 253 Kan. at 511.

This language from Cromwell is on point and persuasive. This court's decision in
State v. Thomas, 206 Kan. 603, 608, 481 P.2d 964 (1971), cited by R. Carr, is not.

The Thomas opinion mentioned the dissimilarity of murder and forgery
punishments incidentally in its discussion on whether the crimes could be joined for trial
as "of the same or similar character." But a careful review of its language demonstrates
129



that the court's primary focus was a complete lack of relationship between the two crimes
and the evidence it would take to prove them:

"Testing the offenses consolidated here, against the standards referred to, it cannot be
said that murder and forgery are of the same general character; nor is the same kind of
punishment required. As we have already observed, the murder evidence was totally
unrelated to the forgery evidence—the evidence establishing one offense was no proof of
any element of the other offense. The murder evidence was largely circumstantial, while
that of forgery was documentary and eyewitness testimony. Except for police officers,
who investigated aspects of both cases, the witnesses were separate and distinct with
respect to each case." 206 Kan. at 608.

This case is different from Thomas. The three December 2000 incidents giving
rise to the noncapital and capital charges against R. Carr are related in several important
ways. The victims of the crimes identified one or both defendants as the perpetrators.
There was evidence that each incident had a gun in common. Certain aspects of the
perpetrators' modus operandi were consistent, at least between pairs of incidents—e.g.,
one of the perpetrators held a black gun palm down in both the Schreiber and Walenta
incidents, the victims in both the Schreiber and Birchwood incidents were forced to drive
to ATMs and withdraw money from their bank accounts, a light-colored car followed a
woman driving home at night in the lead-up to both the Walenta and Birchwood
incidents. Belongings of Schreiber and the Birchwood victims were discovered together.
All of the incidents occurred within a few days of each other.

These multiple connecting points were more than enough to justify trying all of
the charges arising out of the three incidents together. Identity of possible punishment
between the noncapital and capital charges was not required under the plain language of
the statute or our caselaw applying it. Judge Clark did not abuse his discretion in denying
R. Carr's motion to sever the noncapital and capital counts for trial.
130




4. JURY SELECTION

R. Carr contends that Judge Clark erred in three ways on the parties' challenges for
cause: (a) by excusing prospective juror M.W., who opposed the death penalty; (b) by
failing to excuse allegedly mitigation-impaired jury panel members W.B., D.R., D.Ge.,
and H.Gu.; and (c) by excusing prospective jurors K.J., M.G., H.D., C.R., D.H., and
M.B., who expressed moral or religious reservations about the death penalty. The State
responds that all of these rulings by Judge Clark are supported by the record and that he
properly exercised his discretion.

Excuse of M.W. for Cause

Additional Factual and Procedural Background

The defendants attempt to demonstrate that Judge Clark erred in excusing M.W.
on the State's challenge for cause, based on M.W.'s death penalty view, by comparing the
record of his questionnaire responses and voir dire to those of 11 other prospective jurors
whom the defense challenged unsuccessfully. We therefore summarize what we know
about M.W. and the 11 panel members to whom the defendants compare him.

M.W.

M.W. said in his responses to the questionnaire that he was morally opposed to the
death penalty and could not vote to impose it under any circumstances.

During the State's voir dire, M.W. confirmed that he could never sentence a person
to death, even if the court instructed him to do so. M.W. explained that his moral
131



objection was founded on Biblical grounds and that his belief was firmly held and would
not change. At times during defense voir dire, however, M.W. vacillated. He declared his
ability to impose the death penalty if forced to do so by law and confirmed that his
"moral, philosophical, or religious beliefs" would not prevent him "from following the
law in this case and doing [his] job as a juror." Still, when counsel for R. Carr asked
M.W. if he could sentence defendants to death, "[d]espite what the Bible says," M.W.
responded, "The [B]ible comes first."

When the State challenged M.W. for cause because of his conflicting statements,
Judge Clark inquired further on M.W.'s death penalty opposition:

"[W]hat I heard you say is you could do your job every step of the way of being a juror,
but the good book comes above all in your mind and it says thou shalt not kill and
vengeance belongs to the Lord and you could not cast a vote against the Bible; that is, to
impose death on another human being."

M.W. said, "Yes, sir", confirming that Judge Clark had summarized his position
accurately, and he was excused.

J.R.

In his questionnaire, J.R. expressed strong support of the death penalty and said he
had difficulty understanding how mitigating circumstances could justify a different
sentencing outcome.

However, during the State's voir dire, J.R. said he would not support the death
penalty in every case without regard to the particular facts. He agreed "absolutely" that
the State should be required to prove that there were circumstances sufficient to warrant
132



imposition of capital punishment, and he said he would consider mitigation evidence in
this case.

J.R.'s statements during his voir dire by the defense were less than categorical.
When asked whether he could truly give fair consideration to mitigating circumstances,
J.R. responded, "I believe I could be fair. I will admit that I have a problem—I have a
problem with" age as a mitigating circumstance. The defense asked, "Now by being fair,
does that mean that if we get to the second stage is your mind going to already be made
up that it's death before we even present any evidence on mitigator[s] or are you going to
keep an open mind?" J.R. responded, "I would say I'd have to keep an open mind," and he
declared his ability to do so. Later, when defense counsel asked J.R. whether he would be
leaning toward a sentence of death if the defendants were convicted of capital murder,
J.R. said "[i]t would depend on the evidence." When counsel pushed for a clearer
response, J.R. said that he "would probably be leaning toward death."

When the defense challenged J.R. for cause, Judge Clark asked several follow-up
questions, some of which were leading. For example, after J.R. expressed some difficulty
accepting age as a mitigating factor, Judge Clark inquired, "Even under instruction of law
that that's one of the things you have to give consideration to?" J.R. confirmed that he
could enter the sentencing phase of this case, if any, with an open mind and could set
aside his personal views about the death penalty. The judge rejected the challenge for
cause.

D.Gr.

D.Gr. was another prospective juror who favored the death penalty. But he said
during voir dire that it would not be difficult for him to set aside his personal view and
that he would consider evidence of mitigating circumstances fairly. He expressed his
133



understanding that the law (as of the time of trial in this case, see State v. Kleypas, 272
Kan. 894, 1015-19, 40 P.3d 139 [2001], cert. denied 537 U.S. 834 [2002], later overruled
by Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 [2006]), required
him to impose a life sentence if the State failed to prove aggravating circumstances
outweighed mitigating circumstances, and he confirmed that he would follow the law. He
agreed further that the death penalty would not be imposed automatically upon conviction
for capital murder and that he would be required to consider aggravating and mitigating
circumstances to decide the appropriate penalty. Some of D.Gr.'s statements responded to
leading questions from the prosecutor, such as "you're not of the frame of mind to just say
okay, I've found them guilty of capital murder and it's over and I'm just going to impose
the death penalty?"

During R. Carr's questioning, D.Gr. confirmed that in questionnaire responses he
said that "the crime was too great, prison is not the answer." When R. Carr's counsel
asked, "given the fact that you think the crimes committed were too great and that prison
is not the answer, are you not, in fact, predisposed to vote for death if the State proves
any of the aggravating circumstances that they've alleged?" D.Gr. responded, "If they're
proven, I would have to vote for the death penalty." But, in responding to counsel's
follow-up question, D.Gr. agreed that if any mitigator is found to equal the aggravators
that he would be required to vote for life. D.Gr. said that his personal opinions would not
impair his ability to consider mitigating circumstances as support for a life sentence and
that he would consider mitigators even if convinced beyond a reasonable doubt that the
crimes were committed in an especially heinous, atrocious, or cruel manner. D.Gr. again
confirmed his willingness and ability to give meaningful consideration to mitigation
evidence in response to questions from J. Carr's counsel. The judge rejected the defense
challenge for cause.

134



D.Ge.

In questionnaire responses, D.Ge expressed strong support for the death penalty
but also said that he neither favored nor opposed the penalty as a punishment; instead, he
said, he would base his decision on the facts and law.

During the State's voir dire, D.Ge. confirmed his understanding that a juror cannot
impose the death penalty automatically upon conviction. D.Ge. also declared that he
would apply the law and could impose a life sentence if the evidence and law supported
that outcome. Several of D.Ge's statements responded to leading questions from the
prosecution, including the following exchange:

"[PROSECUTION]: Now, you understand now that just because they're found guilty of
the most severe crime doesn't mean that they're automatically given the death penalty.
You agree with that now?

"[D.GE]: Yes, I agree with that."

During questioning from R. Carr's counsel, D.Ge. confirmed that he could not
impose a sentence of death if the State failed to carry its burden to prove aggravating
circumstances outweighed mitigating circumstances. He strongly supported the death
penalty in cases of multiple murders and when a murder was committed in an especially
cruel and heinous way. In such situations, he was unsure whether any mitigation could
warrant a sentence other than death. D.Ge. confirmed, however, that he would first get
the facts from both sides and weigh the evidence before arriving at his sentencing
decision and that his personal beliefs would not interfere with his ability to do so.

135



S.T.

The defense challenged S.T. for cause because they believed her questionnaire
responses demonstrated that she would automatically impose the death penalty. But S.T.
said during voir dire that, when she answered the questionnaire, she was under the
impression that the judge would impose the death penalty if the defendants were found
guilty of capital murder; she was not aware of the jury's role in sentencing. Once the
process was explained, S.T. said she would not impose the death penalty automatically in
the event the defendants were convicted. She confirmed her willingness to consider the
defendants' mitigation case fairly and to impose a life sentence if the State failed to prove
that aggravating circumstances outweighed mitigating circumstances, and the judge
rejected the challenge for cause.

R.P.

R.P. said that he would "go with the death penalty" if the defendants were found
guilty beyond a reasonable doubt. On voir dire, R.P. explained, "[W]ell, heck, I just can't
really consider after what has happened here or in any murder when somebody takes a
human life why you wouldn't be in favor of [the death penalty]," and he expressed doubt
whether mitigating circumstances could excuse the conduct alleged in this case. But R.P.
also said that he would enter the sentencing phase with an open mind and that he would
base his sentencing decision on the facts and law. He also said repeatedly during voir dire
that he was committed to following the law, and his questionnaire responses indicated he
was willing to consider sentences other than death if various mitigating circumstances
were presented. He did not believe that his personal views substantially impaired his
ability to serve as a juror.

Counsel for J. Carr asked R.P. whether, given his personal views, he would be
coming in to the sentencing phase leaning toward death if the jury had just convicted the
136



defendants of killing five people. R.P. responded, "No, it's not—no I haven't. I haven't
decided yet." Counsel continued to press the issue: "At that stage—before you heard any
of the aggravators or mitigators, are you leaning one way or another of life or death after
having been convicted of capital murder?" R.P. said, "No, I haven't really even
considered it one way or the other yet. I'm just going to have to do it all when we get all
the evidence."

When counsel for J. Carr challenged R.P. for cause, counsel appeared to recognize
that, once the parties had explained the jury's role in the sentencing phase, R.P. had
clarified his willingness to consider and impose a sentence other than death.

Judge Clark responded to the challenge by asking R.P.:

"Mr. [P.], what I've heard you saying on those aggravators and mitigators—
especially on [J. Carr's counsel's] questions—is if the State failed to prove, and you were
saying not guilty, but if they failed to prove any aggravating circumstances or if the
mitigating circumstances that the defendants put forward outweighed those aggravators,
then you'd vote for life. Isn't that what you said?"

R.P. replied, "Yes, sir."

This apparently satisfied the judge that R.P. would be willing to consider evidence
supporting aggravating and mitigating circumstances and would sentence to life
imprisonment if the State failed to carry its burden of proof. The judge rejected the
defense challenge for cause.

137



B.Mc.

Counsel for R. Carr asked B.Mc. whether there was "any verdict other than death
that is appropriate if an accused is convicted of capital murder." She responded: "If that's
the only evidence that was presented and they were convicted of capital murder, no, it
would be the death penalty, if that was the only evidence and that's the only decision that
was made." Counsel then asked about aggravating and mitigating circumstances, and
B.Mc. expressed her willingness to give fair consideration to mitigation evidence. She
also said that, even if the State proved the crimes were committed in an especially
heinous, atrocious, or cruel manner, she would "have to really consider" a defendant's
lack of criminal history as a mitigating circumstance. B.Mc. said that, even though she
personally supported the death penalty, she would set that aside, listen to all of the
evidence, and weigh it in a manner consistent with the law as instructed.

R. Carr's counsel explained the state of the law on weighing of aggravating and
mitigating circumstances, telling B.Mc. that, if the State failed to prove aggravators
outweighed mitigators, then the jury would be obligated to impose a sentence of life
imprisonment. Asked if she was comfortable with that concept, B.Mc. said, "Yes. I would
obey the law in whatever was set before me." In response to questions from J. Carr's
counsel, B.Mc. agreed that her personal belief in capital punishment would not
"substantially impair [her] ability to consider evidence in mitigation."

Judge Clark rejected the defense challenge to B.Mc. for cause, saying, "I hear her
saying she'll consider all the factors present and make a decision based on the evidence
and the law."

138



S.W.

S.W. responded to the questionnaire in a way that suggested he would vote to
impose the death penalty automatically. But, like S.T., S.W. explained that he had
completed the questionnaire without a full understanding of the capital sentencing
process. Once Judge Clark and the parties explained the process, S.W. said it became
clear that defendants are not to be sentenced to death automatically at the time of
conviction, and he said he was committed to follow the law. Judge Clark rejected the
defense challenge.

M.P.

M.P. was a criminal defense lawyer in private practice in Sedgwick County at the
time of the trial. In his questionnaire and during the State's voir dire, M.P. expressed his
support for the death penalty but said he would not impose such a sentence automatically
upon conviction. M.P. agreed to apply the law as instructed, not as he interpreted it or
believed it should be. He also expressed his willingness to consider all mitigating
evidence in the event of a sentencing phase. Judge Clark rejected the defense challenge.

K.M.

K.M. favored the death penalty but said she would decide the appropriate sentence
based on the facts and the law. And, after the State explained the statutory weighing of
aggravators and mitigators, K.M. declared her willingness and ability to vote for a life
sentence. She expressed far greater concern about her ability to live with a decision to
end another person's life. She also said that she would consider mitigating circumstances,
but she did not know how much weight she could give them.

Judge Clark made further inquiry.
139




"I think the last question, Miss [M], was whether or not you think that everything you've
stated here, and maybe it's been yes or no to long questions, based on everything you've
heard . . . do you think your ability would be substantially impaired to give consideration
to mitigating circumstances should you be selected to serve should the case reach that
far?"

K.M. responded, "No." The judge rejected the defense challenge.

T.F.

T.F. said he personally believed that the death penalty was the only punishment
appropriate for taking another person's life. However, after the judge and the prosecution
elaborated on the duties and obligations of a juror in a capital trial, T.F. said he could set
his opinion aside and give fair consideration to all of the evidence. He said he would not
be leaning toward death in the event of conviction. And he said that he could give fair
consideration to evidence the defendants offered in mitigation. Judge Clark rejected the
defense challenge.

T.W.

T.W. admitted to having formed an opinion on the defendants' guilt and said she
did not believe it was acceptable that the defense did not have to prove mitigating factors
beyond a reasonable doubt. Yet she said that her opinion on guilt was based on pretrial
publicity and that she could set it aside and decide the case fairly on the evidence. She
also said she was personally opposed to the death penalty but could apply it if the law
required her to do so. T.W. said she could give fair consideration to mitigating evidence,
even if the State proved the crimes were committed in an especially heinous, atrocious, or
cruel manner. She also affirmed that she would hold the State to its burden on sentencing.
140




The defense challenged T.W. for cause, but not on her views on the death penalty.
They challenged her because of her preconceived ideas about guilt.

Judge Clark rejected the challenge, ruling that T.W. had confirmed her ability to
set those ideas aside and judge the case based on the evidence and law.

The Standard of Review and Legal Framework

K.S.A. 22-3410(2)(i) provides that a district judge may remove a prospective juror
for cause where "[h]is [or her] state of mind with reference to the case or any of the
parties is such that the court determines there is doubt that he [or she] can act impartially
and without prejudice to the substantial rights of any party." We have held

"that challenges for cause are matters left to the sound discretion of the trial court, which
is in a better position to view the demeanor of prospective jurors during voir dire. A trial
court's ruling on a challenge for cause will not be disturbed on appeal unless it is clearly
erroneous or amounts to an abuse of discretion." Kleypas, 272 Kan. at 991 (citing State v.
Dixon, 248 Kan. 776, 788, 811 P.2d 1153 [1991]).

K.S.A. 22-3410 is designed to protect a criminal defendant's Sixth Amendment
right to trial by an impartial jury, a right reinforced by the defendant's Fifth Amendment
right to due process. See Ristaino v. Ross, 424 U.S. 589, 597-98, 96 S. Ct. 1017, 47 L.
Ed. 2d 258 (1976). These protections are incorporated into and made applicable to the
states through the due process provisions of the Fourteenth Amendment. Duncan v.
Louisiana, 391 U.S. 145-149, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968). When applied to
the jury selection process in a capital trial, a criminal defendant has the right to an
impartial jury drawn from a venire that has not been tilted in favor of capital punishment
by selective prosecutorial challenges for cause. See Witherspoon v. Illinois, 391 U.S. 510,
141



521, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). This right is balanced against the State's
strong interest in seating jurors who are able to apply the sentence of capital punishment
within the framework provided for by the federal Constitution and state law. 391 U.S. at
521.

In Witherspoon, decided in 1968, the United States Supreme Court struck a
balance between the competing interests and held "'that a sentence of death could not be
carried out if the jury that imposed or recommended it was chosen by excluding
veniremen for cause simply because they voiced general objections to the death penalty
or expressed conscientious or religious scruples against its infliction.'" Kleypas, 272 Kan.
at 991-92 (citing Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 83 L. Ed. 2d 841
[1985]). Witherspoon recognized a distinction of constitutional significance between
prospective jurors who have strong opinions about the death penalty and those whose
views would prevent them from applying the law; the former remain eligible to serve,
while the latter must be excused. See 391 U.S. at 519-21. And the Court's 1985 Witt
decision

"clarified the standard for determining when a prospective juror may be excluded for
cause because of his or her views on the death penalty. The Court stated that a
prospective juror may be excluded for cause because of his or her views on capital
punishment where 'the juror's views would "prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and his oath."'"
Kleypas, 272 Kan. at 991 (quoting Witt, 469 U.S. at 424).

See Lockhart v. McCree, 476 U.S. 162, 184, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986)
("the Constitution presupposes that a jury selected from a fair cross section of the
community is impartial, regardless of the mix of individual viewpoints actually
represented on the jury, so long as the jurors can conscientiously and properly carry out
their sworn duty to apply the law to the facts of the particular case").
142




In Witt, "The Court recognized that 'this standard likewise does not require that a
juror's bias be proved with "unmistakable clarity."'" Kleypas, 272 Kan. at 991 (quoting
Witt, 469 U.S. at 424).

On appeal, the question before us is not whether we would have agreed with a
district judge's decision on a strike for cause prompted by a panel member's opinion on
the death penalty but whether the district judge's decision is fairly supported by the
record. Witt, 469 U.S. at 434; see Darden v. Wainwright, 477 U.S. 168, 176, 106 S. Ct.
2464, 91 L. Ed. 2d 144 (1986) (appellate courts must examine context surrounding
prospective juror's exclusion, qualification). If the record contains conflicting or
ambiguous information, the United States Supreme Court has expressed its belief that
deference is owed to "the trial court, aided as it undoubtedly was by its assessment of [the
prospective juror's] demeanor." Witt, 469 U.S. at 434.

Record Support for Judge Clark's Rulings

When we consider, as we must, the universe of information from the jury
questionnaires and voir dire of M.W. and the 11 jurors the defendants compare to him in
support of their argument on this issue, it is apparent that Judge Clark's rulings are fairly
supported by the record. See Brooks v. Armco, Inc., 194 S.W.3d 661, 664 (Tex. App.
2006) ("In reviewing the trial court's decision on challenges for cause, we must consider
the entire examination, not just answers that favor one side over the other.").

With regard to M.W. specifically, his remarks in response to the questionnaire and
to questions from counsel at voir dire were inconsistent. But he finally confirmed to the
judge that he could never vote to impose a sentence of death. This response demonstrated
that M.W. was not qualified to sit on the jury in this case under K.S.A. 22-3410(2)(i).
143



And, even if it were less definite, we would defer to the district judge who was able to
evaluate M.W.'s demeanor and nonverbal communication, here, whether he had stopped
vacillating and given a clear answer. Although it would have been better, as mentioned in
Section 1 of this opinion on venue, if the judge had gotten to his final destination on
M.W. without asking a leading question, we are satisfied that he did not abuse his
discretion in excusing M.W. See State v. Johnson, 253 Kan. 75, 85, 853 P.2d 34 (1993)
(district judge did not abuse discretion in excusing juror, despite declaration of ability to
be fair to both sides, understanding that personal experiences not to be taken into
account; panel member acknowledged four times that friends' negative experiences with
law enforcement might interfere with her obligations as juror); see also People v. Ayala,
24 Cal. 4th 243, 275, 99 Cal. Rptr. 2d 532, 6 P.3d 193 (2000) (trial judge properly
exercised discretion to remove prospective juror for cause after she said she did not
believe she had strength to sentence another person to die; reviewing courts should defer
to trial court when prospective juror unclear); Humphreys v. State, 287 Ga. 63, 72, 694
S.E.2d 316 (2010) (appellate court refuses to substitute its judgment for trial court's when
three prospective jurors' statements equivocal, contradictory about ability to give
meaningful consideration to three sentencing options); Russeau v. State, 171 S.W.3d 871,
879 (Tex. Crim. 2005) ("When a prospective juror's answers are vacillating, unclear, or
contradictory, we accord deference to the trial court's decision. We will not second-guess
the trial court when the prospective jurors are persistently uncertain about their ability to
follow the law.").

Furthermore, we are not persuaded otherwise by the defendants' insistence that
Judge Clark applied a differential standard as between M.W. and the 11 persons to whom
M.W. is compared. Each of the 11 assured the judge that he or she could put aside
personal opinions and decide this case on the evidence and the law. The fact that many of
them shared one characteristic with M.W.—intermittent equivocation on whether he or
she could do what would be asked of him or her—does not change the other, more salient
144



fact: The 11 ultimately professed ability and willingness to discharge their duties as
jurors. One did not—M.W. Again, we see no abuse of discretion by Judge Clark. See
State v. Nix, 215 Kan. 880, 882-83, 529 P.2d 147 (1974) (no abuse of discretion to deny
challenge for cause; prospective juror confirmed ability to listen to evidence, decide case
on evidence, court's instructions).

Failure to Excuse W.B., D.R., D.Ge, and H.Gu. for Cause

The defendants argue that Judge Clark abused his discretion by denying their
challenges against jurors W.B., D.R., D.Ge., and H.Gu for cause because these panel
members' voir dire responses established that they would impose a sentence of death
automatically upon conviction or could not consider and give effect to mitigating
evidence, i.e., they were "mitigation impaired."

The State responds that each of the four prospective jurors stated unequivocally
that he or she would follow the court's instructions, even if they required a life sentence.

Additional Factual and Procedural Background

W.B.

W.B. expressed his support for the death penalty in his responses to the
questionnaire. However, during the State's voir dire, W.B. said he could give fair
consideration to the evidence and apply the law. He said he understood a juror's statutory
duty to weigh aggravating circumstances against mitigating circumstances, and he
expressed no objection to or concern with voting for a life sentence if the law required
that result.

145



Under questioning by counsel for R. Carr, W.B. said that he had supported the
death penalty "for almost forever." When counsel for J. Carr asked why, W.B. said,
"[W]hy not?" He then said that he supported the death penalty because it was the law of
Kansas and served a societal purpose.

During continued voir dire by J. Carr's counsel, Ron Evans, the following
exchange occurred:

"J. Carr's Counsel: Do you think after you convicted them, if you convict them, after you
convict them of capital murder you would be leaning toward a death sentence?

"W.B.: According to the law, yes.

"J. Carr's Counsel: What if the Judge instructed you that you have to have an open mind,
even after you've convicted them of capital murder, as to what sentence you should
impose?

"W.B.: I'm pretty sure the Judge would give us some kind of parameter of how open
your mind should be.

"J. Carr's Counsel: It should be completely open, as relates to—to the sentence.

"W.B.: To the sentence, it would still be death.

"J. Carr's Counsel: You would lean toward death based on your conviction of capital
murder?

"W.B.: Right.

"J. Carr's Counsel: That scale that's on the judge's desk, you're saying that that scale,
after you convicted them of capital murder, would be tilting toward death?

146



"W.B.: Yes."

Counsel for J. Carr suggested to W.B. that such a position was likely to interfere
with his ability to consider mitigating circumstances. W.B. disagreed, saying, "[Y]ou
have to weigh it, you have to measure it, there has to be some storybook, you have to
hear the evidence[;] you've got to know the facts." W.B. then said he held no opinion on
whether the death penalty should be applied in this case.

The defense challenged W.B. for cause, asserting that he was mitigation impaired.

Before ruling on the challenge, Judge Clark said, "I don't hear [him] saying that. I
hear him saying he would be willing to follow the instructions of law, weighing
mitigators and aggravators and make a decision in his best judgment as he sees the facts
in light of the law." He then asked W.B. whether that was an accurate interpretation of his
testimony. W.B. said it was.

Judge Clark rejected the defense challenge.

D.R.

D.R. expressed strong support for the death penalty in her questionnaire responses.
Yet she agreed in voir dire that the death penalty should not be imposed automatically
upon conviction and that the State would need to prove that it was an appropriate
sentence. D.R. identified several mitigating circumstances set out in the questionnaire as
aggravating circumstances, but she said in voir dire that those responses were based on an
incomplete understanding of the capital sentencing process. Once she became aware of
the sentencing phase, she expressed her willingness and ability to consider all mitigation
evidence.

147



During voir dire by counsel for R. Carr, D.R. said she would listen and give fair
consideration to his mitigation evidence. But she expressed doubt that certain mitigators,
such as the age of a defendant or the defendant's minor role in the offense could excuse or
justify the crimes that formed the basis of the charges.

Judge Clark made further inquiry of D.R.:

"THE COURT: I think Miss R. is misunderstanding the questions being put in such a
way. Let me say this: Should you be chosen to serve on the jury, you will receive a very
detailed set of instructions rather than just two, and whether or not one aided or assisted
or abetted in a crime would be determined in the guilt part.

"If your guilt was not as great, that might be determined, but if there is a
possibility that the jury would say it doesn't make any difference on participation, he's
guilty of capital murder, then you would take that evidence that the participation was
relatively minor. Then you make a decision as to what would be the proper penalty under
the facts for the individual who had a relatively minor role, whether it be the getaway
man or didn't know anybody was going to be killed, whatever the situation, you would
consider it but you would consider it for a different reason when you are trying to figure
out what the proper penalty is to be assessed against that individual under this set of facts.

"D.R.: Right.

"THE COURT: There's probably been 20 years of litigation up in the Supreme Court of
the United States and the State of Kansas. I think what you are confusing is these two
parts. As you just said awhile ago, you didn't know any of that August 28th and here it's
given to you this morning in a brief set and asked questions about it, and if you are saying
that under no circumstances at all would you consider these mitigating factors. . . . If
there is no set of facts that would influence you to consider age or what part somebody
played in a crime going forward, should a sentence of less than death be imposed, you are
not a proper person for this jury.

148



"But if you are saying that you can consider anything they bring forward and
you'll look at it and you'll weigh it if they prove any aggravating factors, you'll weigh it
and make your decision by weighing what you think the mitigators and the aggravators
are worth and listen to one of these and make a decision on what is the proper penalty to
be imposed on that individual under this set of facts. Is that what you are saying?

"D.R.: Yes.

"THE COURT: Okay."

Still later, during voir dire by counsel for R. Carr, when asked whether she could
follow the law, D.R. said, "I'll do what the Judge tells me." Counsel said that people
sometimes want to follow the law but cannot because of their beliefs; he asked whether
D.R. agreed with this observation. D.R. replied, "You can't step outside the law. You
have to follow the law." Then counsel asked D.R. if she could set aside her beliefs and
follow the law. D.R. answered, "I can try. That is all I can say. I'm sorry."

The defendants challenged D.R. for cause, arguing that she "cannot tell us that she
can follow the law. She says she will try but that's no assurance."

Again, Judge Clark spoke directly to D.R.:

"THE COURT: I don't think that was the question. The answer was I'll try. Will you
follow the law that I say applies in the case?

"D.R.: Yeah.

"THE COURT: Will you base your decision on the evidence in the case and not on any
preconceived notions or anything?

"D.R.: Yeah, because I only read the silly headlines anyway. They don't say much.
149




"THE COURT: Well, I think they were talking more about the preconceived notion
about what you thought concerning the death penalty, what ought to happen concerning
the death penalty.

"D.R.: No. Whatever you tell me, I'll follow the law."

The judge then rejected the defendants' challenge.

D.Ge.

D.Ge., discussed above as a comparison prospective juror for M.W., at times
expressed unwillingness to consider a sentence other than death in the face of certain
aggravating circumstances. But D.Ge. said on voir dire by the State that he understood a
jury could not impose the death penalty automatically upon conviction. He also said that
he would apply the law and could impose a life sentence if the evidence and law
supported that outcome. D.Ge. confirmed that he could not impose a sentence of death if
the State had failed to carry its burden to prove aggravating circumstances outweighed
mitigating circumstances.

The defense challenged D.Ge. for cause, and Judge Clark rejected the challenge.

H.Gu.

During voir dire by counsel for R. Carr, H.Gu. was asked what sentence she would
support, assuming the defendants were convicted of the capital murder charges. She
initially said she would need to be "convinced" that a sentence other than death was
appropriate. Explaining herself later in voir dire, H.Gu. said that she had been confused
by the question; she thought counsel for R. Carr was asking about the verdict on the guilt
150



phase, not about the sentencing phase. After counsel for R. Carr and Judge Clark clarified
the law governing capital sentencing proceedings, H.Gu. said without equivocation that
she would set aside her personal beliefs and apply the law as instructed. She also said she
would give fair consideration to the defendants' mitigation case.

The defense challenged H.Gu. for cause, and Judge Clark rejected the challenge.

The Standard of Review and Legal Framework

The same standard of review and legal framework applicable to a district judge's
decision to excuse a prospective juror who cannot set aside his or her objection to the
death penalty applies equally to decisions not to excuse prospective jurors challenged for
cause based on their inability to consider a sentence other than death. See Morgan v.
Illinois, 504 U.S. 719, 728-29, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992) (applying
Witherspoon, 391 U.S. at 518, and Witt, 469 U.S. at 423-24). The United States Supreme
Court has explained:

"A juror who will automatically vote for the death penalty in every case will fail in good
faith to consider the evidence of aggravating and mitigating circumstances as the
instructions require him to do. Indeed, because such a juror has already formed an
opinion on the merits, the presence or absence of either aggravating or mitigating
circumstances is entirely irrelevant to such a juror. Therefore, based on the requirement
of impartiality embodied in the Due Process Clause of the Fourteenth Amendment, a
capital defendant may challenge for cause any prospective juror who maintains such
views. If even one such juror is empanelled and the death sentence is imposed, the State
is disentitled to execute the sentence." Morgan, 504 U.S. at 729.

In addition to a defendant's rights under the Sixth Amendment and the Fifth
Amendment's Due Process Clause, the Eighth Amendment right not to be subjected to
151



cruel and unusual punishment requires jurors in a death penalty case to be able to give
consideration to evidence of mitigating circumstances. See Lockett v. Ohio, 438 U.S. 586,
604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978) (sentencer, in all but rarest capital case,
must not be precluded from considering, as mitigating factor, any aspect of defendant's
character, record, or circumstances of offense).

Record Support for Judge Clark's Rulings

The defendants assert that these four prospective jurors should have been removed
for cause because they were mitigation impaired. In their view, these four prospective
jurors confirmed that they would impose a sentence of death automatically upon
conviction and/or they confirmed they could not fairly consider mitigating circumstances.

The defendants are correct that selected passages from the questionnaire and voir
dire responses of these four prospective jurors yield cause for concern, but the entirety of
the record on them convinces us that it fairly supports Judge Clark's rulings. Again, our
resolution of this issue has been complicated by the judge's use of leading questions,
particularly glaring in his rehabilitation of W.B. and his rehabilitation—twice—of D.R.
But all four jurors eventually professed understanding of and fidelity to the law
governing the jury's role and function in capital sentencing. Thus we conclude that Judge
Clark did not abuse his discretion in refusing to excuse them for cause. See Reaves v.
State, 639 So. 2d 1, 4 (Fla. 1994) (no error in denial of challenge to four prospective
jurors who suggested they would vote automatically for death penalty in event of
conviction; record contained evidence prospective jurors rehabilitated); Brockman v.
State, 292 Ga. 707, 739 S.E.2d 332, 347 (2013) (trial court did not err by rejecting
challenges for cause; "When viewed as a whole, the voir dire of [two jurors] shows that,
while they indicated a leaning toward the death penalty, they would listen to all the
evidence and would fairly consider both sentencing options."); Humphreys v. State, 287
152



Ga. 63, 72, 694 S.E.2d 316 (2010) (no abuse of discretion when trial court denied
challenges on six panel members; all six jurors "expressed a leaning toward the death
penalty, [but] they all stated that they would listen to and consider mitigating evidence
and that they could give fair consideration to and vote for each of the three sentencing
options"); State v. Odenbaugh, 82 So. 3d 215, 238-241 (La. 2011), cert. denied 133 S. Ct.
410 (2012) (no abuse of discretion to deny challenge for cause, although juror repeatedly
stated death penalty justified in circumstances like those at issue in case, could not find
situation in which life sentence would be proper under similar facts; juror did not suggest
he would automatically impose death penalty upon conviction); Leatherwood v. State,
435 So. 2d 645, 654 (Miss. 1983) (no abuse of discretion in denying challenge for cause
when prospective jurors strongly supported death penalty; "[w]hen questioned by counsel
both jurors said that they could put aside their personal feelings, follow the law and
instructions of the court[,] return a verdict based solely upon the law and the evidence[,]
and not vote for the death penalty unless the evidence warranted it."); State v. Braden, 98
Ohio St. 3d 354, 360, 785 N.E.2d 439 (2003) (trial court in capital murder prosecution
not required to grant challenge for cause to prospective juror who stated he would
automatically go to death sentence upon finding defendant guilty; prospective juror stated
he would have to hear all facts before making decision, would have to consider the
alternatives, would have to weigh mitigating factors; other responses showed
commitment to being fair-minded); Moore v. State, 999 S.W.2d 385, 400 (Tex. Crim.
1999) ("When the record reflects that a venireman vacillates or equivocates on his ability
to follow the law, the reviewing court must defer to the trial court.").

Violation of Section 7 of the Kansas Constitution Bill of Rights

R. Carr also argues on this appeal that Judge Clark violated Section 7 of the
Kansas Constitution Bill of Rights by excusing six prospective jurors—K.J., M.G., H.D.,
C.R., D.H., and M.B.—based on their religious opposition to the death penalty.
153




Additional Factual and Procedural Background

Judge Clark excused these jurors because they said they could not impose the
death penalty under any circumstance. K.J. said that her objection to the death penalty
was "[n]ot only religious. There are other beliefs also that I feel that way." M.G. relied on
religious beliefs and general beliefs that the death penalty was morally unjust and humans
should not be killing other humans. H.D. said she objected to the death penalty on moral
and religious grounds; she said the two could not be separated easily because her moral
code was founded upon or influenced by her religion. C.R. testified that her own personal
moral code prevented her from imposing the death penalty under any circumstance. D.H.
expressed moral and religious opposition to the death penalty, which would prevent him
from supporting any sentence other than life imprisonment. M.B. stated that his religious
views, life experience, upbringing, and personal moral code would prevent him from
supporting a sentence of death under any circumstance.

The Standard of Review and Legal Framework

Section 7 of the Kansas Bill of Rights provides that "[n]o religious test or property
qualification shall be required for any office of public trust." We have held that this
section "does not provide any greater limitation than already provided under K.S.A. 43-
156," Kleypas, 272 Kan. at 993, which provides that "[n]o person shall be excluded from
service as a grand or petit juror in the district courts of Kansas on account of . . . religion
. . . ."

Meanwhile, K.S.A. 22-3410(2)(i) provides that a prospective juror may be
challenged for cause as unqualified to serve when he or she is partial or biased. A person
who admits that he or she cannot follow the law requiring imposition of the death penalty
154



in specific situations is, by definition, unqualified by partiality. See State v. Campbell,
217 Kan. 756, 765, 539 P.2d 329 (1975) (allegation of discrimination in selection of jury
necessarily requires showing recognizable, identifiable class of persons, otherwise
entitled to be jury members, purposefully, systematically excluded) (citing Brown v.
Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469 [1953]).

We recognize and acknowledge the existence of some tension between these
statutes. The necessity of and process to achieve "death qualification" of jurors under
K.S.A. 22-3410(2)(i) butts up against K.S.A. 43-156 when the reason a prospective juror
can never participate in imposition of the death penalty, compelling removal of that
person for cause, has a basis in a religious code.

This tension is resolved with a fine distinction with its roots in family law. We
recently decided Harrison v. Tauheed, 292 Kan. 663, 256 P.3d 851 (2011), a case
involving parents in conflict over custody of their child because of the mother's religious
faith and related practices. In Tauheed, we drew a line between belief and behavior. We
cautioned district judges resolving such disputes, instructing them to avoid discrimination
between parents on the basis of religious belief or lack of belief but to act as required
when behavior prompted by the belief or lack of belief was incompatible with the best
interests of the child. 292 Kan. at 683-84.

Like parents, jurors cannot be discriminated against on the basis of their religious
belief or lack of belief. But they can be excluded from jury service when their belief or
nonbelief makes it impossible for them to act in conformance with the signature
requirement of that service: impartiality under the rule of law.

Judge Clark did not abuse his discretion or violate Section 7 of the Kansas
Constitution Bill of Rights or K.S.A. 43-156 when he excused K.J., M.G., H.D., C.R.,
155



D.H., and M.B. for cause. See Kleypas, 272 Kan. at 993 (no violation of Kansas
Constitution Bill of Rights, statute when prospective jurors excused for inability to be
impartial, follow oath).

5. REVERSE BATSON CHALLENGE TO PEREMPTORY STRIKE

R. Carr argues that Judge Clark failed to follow the three steps required under
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), when he
refused to permit the defense to exercise a peremptory challenge to remove W.B from the
jury. W.B., like the defendants, is a black man. R. Carr argues further that Judge Clark's
error was structural and entitles him to reversal of all of his convictions on all counts. The
State responds that Judge Clark did not err, and, in the alternative, that any error was
harmless.

Additional Factual and Procedural Background

Of the panel of 60 prospective jurors qualified for final selection in this case, 3
were black, C.B., D.M., and W.B.

During individual voir dire, the defendants passed C.B. and D.M. for cause. The
State challenged D.M. for cause based on his death penalty views. The defense
successfully rehabilitated D.M., and the trial court rejected the State's for-cause
challenge. The State later exercised peremptory challenges to remove both C.B. and D.M.
The defendants lodged an unsuccessful Batson challenge to the State's strike of C.B. The
defendants were successful in keeping D.M. on the jury.

The defendants had challenged W.B. for cause unsuccessfully, as discussed in
Section 4 of this opinion. Then R. Carr attempted to exercise his 12th, and last,
156



peremptory strike against W.B.; and the State lodged a Batson challenge, arguing that the
defense was striking "one of the remaining black males that we have." Counsel for R.
Carr replied:

"First, Your Honor, I think they have to make the prima [facie] case that I have
engaged in a pattern of challenging based on race. I don't think they've done that.

"Secondly, with the number of jurors having—I have to shepherd my peremptory
challenges and not use them promiscuously. [W.B.] based on an answer on voir dire is
one of the mitigation-impaired jurors we have. He told us he was in favor of death on
most, if not all, of the mitigating circumstances. He left blank—he gave inconsistent
answers with regard to the same. After being questioned, rehabilitated and questioned
again, he indicated on the record that after a conviction he would be leaning towards
death.

"Lastly, in response to Mr. Evans' question, why are you in favor of the death
penalty, based on my listening to [W.B.], he answered in a sarcastic and contemptuous
manner, [']why not[']. This is not a racial challenge—there is not a racial reason for my
challenge of [W.B.]"

Judge Clark sought no more comment from the prosecution. Then he said:

"To me it works both ways. Once it's raised, then the reason that's adequate under
law must be stated. I find that the reason stated might be supported under a certain
interpretation but they are not adequate under the law. I will sustain the Batson
challenge."

Counsel for J. Carr then announced that he too would exercise his final
peremptory challenge to remove W.B. Anticipating the State would reassert its objection
to the strike under Batson, counsel spoke, first referencing W.B.'s responses on the jury
questionnaire:
157




"Our reasons for exercising a preempt on W.B. have absolutely nothing to do with his
color. When I—when I got these questionnaires, obviously we didn't know the color of
W.B. and I had him rated at the very—as one of the very worst jurors of the first panel. I
rated this based on his answers. On his marking 5 on the death penalty scale, that didn't
make him one of the worst, but it started making me think that perhaps he would not be a
favorable juror, especially on a death penalty case. He circled 'D,' in favor, based on the
law and the facts. It's another factor, though, that I look at in trying to rate the jurors. I
still don't know whether he's white or black.

"I come down, I look at his markings on the aggravators and mitigators. He
thinks that the defendant not having a significant history of prior criminal activity is an
aggravator. He marked 'F.' He also marked 'F,' in favor of the death penalty, on the
mitigator and statutory mitigator 'E.' He marked 'F' on a third statutory mitigator, 'I' the
defendant acted under extreme distress or substantial domination of another person. He
also marked 'F' on that statutory mitigator. He left 'M,' that's the age mitigator, blank. It is
my memory, and I don't have any notes on this, it seems like someone asked him about
that and I don't think he expressed any interest in that being any sort of mitigation, the
age of the defendant.

"Based on those answers, I had W.B. rated, at least from Jonathan Carr's
perspective, as a very poor juror. And it surprised me when, frankly, it probably shouldn't
have, it surprised me when he hit the juror box and I saw he was an African-American
man.

"When he was questioned, I didn't—didn't take his answers to be favorable to us
at all. And I would reiterate the reasons stated by [R. Carr's counsel]. It's my memory
when we asked him those questions about which way he was leaning, if they found
Jonathan Carr guilty of capital murder, he said he would be leaning toward death. And I
was the one questioning him and I was looking him right in his eye when I asked him,
why are you for death. And it was me that he focused with his eyes, and I took it to be
part sarcasm, and I saw some contempt in his eyes when he said to me, why not. And I
gave him the laundry list of reasons why, you know, the - of why people are for the death
158



penalty. And again, when he answered that, when I was trying to help him, give him a
reason, I found his answer very unsatisfactory. Not a thoughtful answer.

"And last, but certainly not least, Judge, we voted to strike W.B. for cause. We
think that he—you know, with all due respect to you, Judge, I respect your ruling, but we
moved for you to excuse him for cause because we think he's mitigation impaired. I don't
think we have any choice but at least to move him excused—certainly peremptory
challenge or we waive that error. I mean he is as bad a juror from a death perspective. I
think he is the worst juror from a death perspective Jonathan Carr could possibly have
that's left on the panel. And that has nothing—nothing to do with the fact he's an African-
American man. I would have been for striking him regardless of his race based on his
answers. So those are my racially neutral reasons. It has nothing to do with the fact W.B.
is an African-American. We move—he's our 12th challenge."

Judge Clark confirmed that the State intended to challenge the exercise of J. Carr's
peremptory strike of W.B. and, without hearing further argument, sustained the
challenge.

Judge Clark seated W.B. on the jury, and W.B. was elected Presiding Juror.

Batson's Requirements and Standards of Review

Batson's central teaching is that the Equal Protection Clause of the Fourteenth
Amendment forbids the prosecution from engaging in purposeful discrimination on the
basis of race when it exercises peremptory challenges. 476 U.S. at 89; State v. Hood, 242
Kan. 115, 123, 744 P.2d 816 (1987) (adopting Batson framework). This prohibition was
extended to a criminal defendant's use of peremptory challenges in Georgia v. McCollum,
505 U.S. 42, 46-55, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992). When the State challenges
a peremptory strike under McCollum, such a challenge has come to be known as a
159



"reverse Batson" challenge. United States v. Thompson, 528 F.3d 110, 115 (2d Cir.
2008).

A district judge's handling of a Batson or reverse Batson challenge involves three
steps, each subject to its own standard of review on appeal. See State v. McCullough, 293
Kan. 970, 992, 270 P.3d 1142 (2012) (citing State v. Hill, 290 Kan. 339, 358, 228 P.3d
1027 [2010]; State v. Pham, 281 Kan. 1227, 1237, 136 P.3d 919 [2006]).

"Under the first step, the party challenging the strike must make a prima facie
showing that the other party exercised a peremptory challenge on the basis of race."
McCullough, 293 Kan. at 992. "Appellate courts utilize plenary or unlimited review over
this step." 293 Kan. at 992 (citing Hill, 290 Kan. at 358).

"[I]f [a] prima facie case is established, the burden shifts to the party exercising
the strike to articulate a race-neutral reason for striking the prospective juror. This reason
must be facially valid, but it does not need to be persuasive or plausible. The reason
offered will be deemed race-neutral unless a discriminatory intent is inherent in the
explanation. The opponent of the strike continues to bear the burden of persuasion."
McCullough, 293 Kan. at 992 (citing Hill, 290 Kan. at 358). The scope of review on a
district judge's ruling that the party attempting the strike has expressed racially neutral
reasons is abuse of discretion. State v. Sledd, 250 Kan. 15, 21, 825 P.2d 114 (1992)
(citing Smith v. Deppish, 248 Kan. 217, 807 P.2d 144 [1991]).

In the third step, the district judge determines whether the party opposing the
strike has carried its burden of proving purposeful discrimination. "This step hinges on
credibility determinations because usually there is limited evidence on the issue, and the
best evidence is often the demeanor of the party exercising the challenge. As such, it falls
within the trial court's province to decide, and that decision is reviewed under an abuse of
160



discretion standard." McCullough, 293 Kan. at 992 (citing Pham, 281 Kan. at 1237; Hill,
290 Kan. at 358-59). As set forth above, judicial discretion is abused if judicial action is
arbitrary, fanciful, or unreasonable; or based on an error of law or fact. State v. Ward, 292
Kan. 541, 550, 256 P.3d 801 (2011).

Preservation

The State asserts that the defendants waived their right to pursue this issue on
appeal by failing to object to the judge's procedure in district court. Although there may
be a debatable fact question on this point, because this is a death penalty case, K.S.A.
2013 Supp. 21-6619(b) makes this preservation attack beside the point. The statute
requires us to consider all errors asserted on appeal in a death-penalty case. See State v.
Cheever, 295 Kan. 229, 241, 284 P.3d 1007, cert. granted in part 133 S. Ct. 1460 (2013),
vacated and remanded on other grounds 134 S. Ct. 596 (2013).

Judge Clark's Error

We have no hesitation in ruling that Judge Clark erred in his consideration and
grant of the State's reverse Batson challenge to each of the defendants' peremptory strikes
of W.B.

The record establishes that, after the State raised its objections to the defendants'
strikes of W.B.—merely pointing out on R. Carr's strike that W.B. was "one of the
remaining black males that we have" in the venire and merely answering, "Yes, your
honor," when the judge asked if the prosecution intended to renew its objection on J.
Carr's strike—Judge Clark did not make a finding on the record that the State had
established a prima facie case of discrimination. Moreover, defense counsel for R. Carr
and J. Carr each articulated more than one race-neutral reason for striking W.B.,
161



including his demeanor and death penalty views. See State v. Angelo, 287 Kan. 262, 274-
75, 197 P.3d 337 (2008) (recognizing this court has upheld peremptory strikes based on
counsel's intuition, interpretation of juror demeanor, body language); Smith v. Deppish,
248 Kan. 217, 229, 807 P.2d 144 (1991) (characteristics of juror's nonverbal
communication, demeanor race-neutral); see also United States v. Barnette, 644 F.3d 192,
215 (4th Cir. 2011) cert. denied 132 S. Ct. 1740 (2012) (wavering personal view of death
penalty race-neutral basis for strike under Batson); Berry v. State, 802 So. 2d 1033, 1042
(Miss. 2001) ("A challenge . . . based upon a juror's views on the death penalty is an
acceptable race neutral reason."). Again, Judge Clark did not articulate why the reasons
given by the defense in the second Batson step were inadequate; he did not hear any
argument from the State on why the reasons stated by defense counsel should be
dismissed as pretextual. Then Judge Clark simply sustained the State's challenges, gliding
by the third step under Batson entirely.

The State's reliance on our decision in Angelo, 287 Kan. 262, to persuade us
otherwise is misplaced. Angelo is distinguishable from stem to stern.

First, in that case, we reviewed an unsuccessful Batson challenge by the defense; it
did not review a successful reverse Batson challenge by the State. In addition, the record
was clear in that case that the district judge heard argument from the parties on each step
of the required analysis before ruling. This court noted: "Specifically, after initially
stating that it had not detected a pattern of discrimination, [the district judge] heard the
State's reasons and supporting information for striking the jurors and then asked for, and
received, [the defendant's] responses." 287 Kan. at 274. This directly enabled our holding
that the district judge had considered all of the information and "impliedly held [the
defendant] failed to prove that the State's reasons were pretextual and that he therefore
failed in his ultimate burden to prove purposeful discrimination." 287 Kan. at 275. What
happened in Angelo did not happen here, and it is not persuasive authority.
162




An exercise of discretion built upon an error of law qualifies as an abuse of that
discretion. See State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005) ("[A]buse-of-
discretion standard does not mean a mistake of law is beyond appellate correction. A
district court by definition abuses its discretion when it makes an error of law."). Judge
Clark abused his discretion on the State's reverse Batson challenge to the defendants'
peremptory strikes of W.B.

Harmlessness

R. Carr argues that Judge Clark's error was structural. The State urges us to apply
harmless error analysis.

Our examination of these opposing viewpoints begins with a review of the United
States Supreme Court's decision in Rivera v. Illinois, 556 U.S. 148, 129 S. Ct. 1446, 173
L. Ed. 2d 320 (2009).

In Rivera, the Court held that state courts have the authority to determine the
appropriate remedy when a trial court judge erroneously denies a defendant's peremptory
challenge in good faith. Defendant Michael Rivera attempted to exercise a peremptory
challenge against a Hispanic juror. 556 U.S. at 152-53. The trial court erroneously denied
Rivera's peremptory strike, exercising a sua sponte reverse Batson challenge. The juror
eventually was elected foreperson of the jury, and Rivera was found guilty. 556 U.S. at
153-54. The Illinois Supreme Court agreed that the trial judge erroneously granted the
reverse Batson challenge, but it rejected the notion that such error was reversible absent a
showing of prejudice. 556 U.S. at 155. The United States Supreme Court granted
certiorari "to resolve an apparent conflict among state high courts over whether the
163



erroneous denial of a peremptory challenge requires automatic reversal of a defendant's
conviction as a matter of federal law." 556 U.S. at 156.

The Court first characterized the right to peremptory challenge as one that arises
under state law without federal constitutional protection:

"[T]his Court has consistently held that there is no freestanding constitutional right to
peremptory challenges. [Citation omitted.] We have characterized peremptory challenges
as 'a creature of statute,' [citation omitted] and have made clear that a State may decline
to offer them at all. [Citations omitted.] When States provide peremptory challenges (as
all do in some form), they confer a benefit beyond the minimum requirements of fair
[jury] selection, [citation omitted] and thus retain discretion to design and implement
their own systems [citation omitted].

"Because peremptory challenges are within the States' province to grant or
withhold, the mistaken denial of a state-provided peremptory challenge does not, without
more, violate the Federal Constitution. 'A mere error of state law,' we have noted, "is not
a denial of due process." [Citations omitted.] The Due Process Clause, our decisions
instruct, safeguards not the meticulous observance of state procedural prescriptions, but
'the fundamental elements of fairness in a criminal trial.' [Citations omitted.]" 556 U.S. at
157-58.

Accordingly, the Court left the duty to tailor appropriate relief for deprivations of
this state law right to the state courts:

"Absent a federal constitutional violation, States retain the prerogative to decide whether
such errors deprive a tribunal of its lawful authority and thus require automatic reversal.
States are free to decide, as a matter of state law, that a trial court's mistaken denial of a
peremptory challenge is reversible error per se. Or they may conclude, as the Supreme
Court of Illinois implicitly did here, that the improper seating of a competent and
164



unbiased juror does not convert the jury into an ultra vires tribunal; therefore the error
could rank as harmless under state law." 556 U.S. at 161-62.

Under Rivera, the first issue we must decide is whether Judge Clark acted in good
faith. If not, his error offends Fifth and Fourteenth Amendment due process protections
and may require automatic reversal of all of R. Carr's convictions. See Bell v. Jackson,
379 F. Appx. 440, 445 (6th Cir. 2010) ("Rivera leaves open the possibility that a Batson
error might require reversal as a matter of due process if the trial judge repeatedly or
deliberately misapplie[s] the law or act[s] in an arbitrary or irrational manner."). If, on the
other hand, Judge Clark acted in good faith, his error does not implicate federal
constitutional guarantees, and the decision on its remedy is a matter of state law.

At least two courts have considered a trial judge's good and bad faith and their
effects since Rivera.

In Pellegrino v. AMPCO System Parking, 785 N.W.2d 45 (Mich. 2010), the
Michigan Supreme Court considered a trial court's ruling on a reverse Batson challenge
in a civil action. The court first observed that Rivera "contrasted a judge's good-faith
mistake with one arising because the judge deliberately misapplied the law or because the
judge had acted in an arbitrary or irrational manner." 486 Mich. at 350. The court
determined that the trial judge "deliberately refused to follow the three-step process
required under Batson because [the judge] thought that process required the court to
'indulge' in 'race baiting.'" 486 Mich. at 351. Despite never finding a Batson problem in
the first place, the judge "arbitrarily proceeded" as if the State had established such a
violation and disallowed the defendant's peremptory strike. 486 Mich. at 350-51. This
required automatic reversal of the Court of Appeals decision, remand to the district court,
and a new trial before a different judge. 486 Mich. at 354.

165



In Chinnery v. Virgin Islands, 55 V.I. 508, 2011 WL 3490267 (V.I. 2011), the
Supreme Court of the Virgin Islands held that the trial judge erred in sustaining the
prosecution's reverse Batson challenge, and the prosecution argued that the error should
be deemed harmless. The court recognized that Rivera granted it the authority to decide
the standard of reversibility or remedy in such a situation, as long as the judge's error was
made in good faith. But this error was not made in good faith. During jury selection, the
prosecution had challenged two of defendant's peremptory strikes under Batson. Defense
counsel explained that the strikes were based on the jurors' social class and how they had
looked at him. The judge responded: "I don't do that," and sustained the reverse Batson
challenge. 2011 WL 3490267, at *7. Still, the judge allowed the defendant to use his
peremptory challenge to remove one of the two jurors. The Virgin Islands Supreme Court
reacted to this behavior by the trial judge:

"[T]he Superior Court, like the judge in Pellegrino, denied [the defendant] his right to
exercise his peremptory challenges based on its own personal preferences rather than a
good-faith attempt to follow Batson. Moreover, even if the Superior Court initially acted
in good-faith—which we have no reason to doubt—its ultimate decision to nevertheless
allow [the defendant] to choose to strike one of the two prospective jurors—
notwithstanding the fact that it had rejected [the defendant's] race-neutral explanation and
upheld the People's Batson challenge with respect to both jurors—was inherently
arbitrary and irrational." 2011 WL 3490267, at *7.

The court reversed and remanded for new trial, because the absence of good faith meant
that the error rose to the level of a deprivation of due process. 2011 WL 3490267, at *7.

Here, the defense argument that Judge Clark's error was not made in good faith
rests entirely on the fact that his application of the three steps of Batson was incomplete.
But acceptance of this argument would tend to elevate every Batson error to one made in
bad faith, and we are unwilling to take the first step in that direction. See Bell, 379 F.
166



Appx. at 445 ("But aside from the brevity with which the trial court addressed his
objections, [the defendant] offers nothing to show that any error was more than" one
made in good faith).

Instead, we have carefully examined the entire record to determine whether Judge
Clark's conduct on the reverse Batson challenge was part of a pattern of hostile behavior
toward the defense. As discussed throughout this opinion, although we have identified
isolated instances in which Judge Clark's performance might have been improved, the
record does not demonstrate that either his general performance or his specific decision
on this reverse Batson challenge is deserving of the perverse distinction of a bad faith
label. This case is different from Pellegrino and Chinnery, in which trial judges defied or
refused to apply Batson analysis or appeared to reverse themselves in midstream. The
record discloses no such deliberate or erratic conduct on the part of Judge Clark.

We turn now to the question of the remedy for a good faith mistake, a question
delegated to us for decision by Rivera. A review of the positions taken by other state and
federal courts reveals a split of authority.

Several states have concluded that reversal is automatically required when a trial
court erroneously denies a defendant his or her right to exercise a peremptory challenge.
The Iowa Supreme Court's decision in State v. Mootz, 808 N.W.2d 207 (Iowa 2012),
outlines the arguments commonly advanced in support of a structural error approach
well.

In Mootz, the defendant appealed his conviction for assault on a law enforcement
officer resulting in bodily injury. During voir dire, the defense sought to use a peremptory
strike to remove a Hispanic member of the venire, and the trial judge prevented it from
167



doing so. The judge ruled erroneously that the strike was based on the venire member's
race, and he was seated on the jury and elected foreperson.

At the Iowa Court of Appeals level, the panel held that the trial judge erred by
denying the defendant his right to exercise the peremptory strike, but it treated the
mistake as harmless error. 808 N.W.2d at 214. The panel analogized to State v.
Neuendorf, 509 N.W.2d 743, 747 (Iowa 1993), in which the Iowa Supreme Court had
held that prejudice would not be presumed when a defendant was forced to "waste" a
peremptory challenge to correct an erroneous denial of a challenge for cause. Mootz, 808
N. W. 2d at 221.

On review of the court of appeals decision, the Iowa Supreme Court distinguished
Neuendorf and its more recent holding in Summy v. City of Des Moines, 708 N.W.2d 333,
340 (Iowa 2006) (prejudice will not be presumed when court erroneously grants litigant's
challenge for cause), because the Mootz venire member ultimately was seated on the jury,
whereas prospective jurors in Neuendorf and Summy ultimately were not. The court also
said it had limited ability to assess accurately what impact the objectionable juror had on
the proceedings. 808 N.W.2d at 225. "A defendant could only show prejudice by showing
that the juror he sought to remove was biased. However, if the juror were biased, then the
juror would be removable for cause, and the question regarding the peremptory challenge
would become moot." 808 N.W.2d at 225. The Iowa Supreme Court found it
unacceptable that a defendant could be left with no remedy for a reverse Batson error,
and it imagined the drafters of the state rule governing peremptory strikes would feel the
same. 808 N.W.2d at 225-26.

Appellate courts in Alabama, California, Connecticut, Florida, Georgia, Louisiana,
Maryland, Massachusetts, Minnesota, Mississippi, New York, South Carolina, Vermont,
Washington, and Wisconsin are in accord with Iowa in holding that reverse Batson error
168



committed by a trial judge in good faith is structural; seven of them arrived at the position
after Rivera was handed down, and eight before. See Zanders v. Alfa Mut. Ins. Co., 628
So. 2d 360, 361 (Ala. 1993) (reversing judgment and remanding for new trial in civil
action); People v. Gonzales, B224397, 2012 WL 413868 (Cal. Ct. App. 2012)
(unpublished opinion) (where defendant forced to go to trial with a juror that they could
not excuse due to an erroneously granted Batson/Wheeler [People v. Wheeler, 22 Cal. 3d
258, 148 Cal. Rptr. 890, 583 P.2d 748 (1978)] motion, error requires reversal); State v.
Wright, 86 Conn. App. 86, 97-98, 860 A.2d 278 (2004) (reversing and remanding for new
trial); Elliott v. State, 591 So. 2d 981, 987 (Fla. Dist. App. 1991) (reversing and
remanding for a new trial); Jackson v. State, 265 Ga. 897, 899, 463 S.E.2d 699 (1995)
(granting new trial without conducting harmless error analysis); State v. Pierce, 131 So.
3d 136, 144 (La. App. 2013) (denial of peremptory through erroneous Batson ruling
"implicates a constitutional right guaranteed to the defendant by the State of Louisiana;
thus, a harmless error analysis is inappropriate"); Parker v. State, 365 Md. 299, 311, 778
A.2d 1096 (2001) (granting new trial where trial judge erred in deeming the facially-
valid, race-neutral reasons "unacceptable" and in reseating stricken jurors);
Commonwealth v. Hampton, 457 Mass. 152, 164-65, 928 N.E.2d 917 (2010) ("We
continue to adhere to the view [post-Rivera] that, for purposes of State law, the erroneous
denial of a peremptory challenge requires automatic reversal, without a showing of
prejudice."); State v. Campbell, 772 N.W.2d 858, 862 (Minn. App. 2009) (confirming
structural error approach of Minnesota Supreme Court in State v. Reiners, 664 N.W.2d
826, 835 [Minn. 2003], will continue to be applied post-Rivera); Hardison v. State, 94
So. 3d 1092, 1101-02 (Miss. 2012) (follows lead of Iowa, Massachusetts, Minnesota,
New York, Washington; post-Rivera "a trial court cannot deprive defendants of their
right to a peremptory strike unless the trial judge properly conducts the analysis outlined
in Batson . . . . when a trial judge erroneously denies a defendant a peremptory strike by
failing to conduct the proper Batson analysis, prejudice is automatically presumed, and
we will find reversible error"); People v. Hecker, 15 N.Y.3d 625, 662, 917 N.Y.S.2d 39,
169



942 N.E.2d 248 (2010) (refusing to depart from pre-Rivera precedent establishing
automatic reversal as proper remedy when trial judge erroneously sustains reverse Batson
challenge); State v. Short, 327 S.C. 329, 489 S.E.2d 209 (Ct. App. 1997), aff'd 333 S.C.
473, 511 S.E.2d 358 (1999) (automatic reversal proper remedy); State v. Yai Bol, 190 Vt.
313, 323, 29 A.3d. 1249 (2011) (reversal automatic where defendant "compelled to abide
a juror not to his liking" as a result of erroneous Batson ruling); State v. Vreen, 143
Wash. 2d 923, 931, 26 P.3d 236 (2001) (erroneous denial of peremptory strike requires
automatic reversal); State v. Wilkes, 181 Wis. 2d 1006, 513 N.W.2d 708 (Wis. App.
1994) (same) (unpublished opinion).

Several other states have chosen the path of the Illinois Supreme Court in Rivera—
applying harmlessness analysis to reverse Batson errors made in good faith. For the most
part, these courts reason that the primary purpose of statutory peremptory strikes is to
ensure a defendant's right to trial by a fair and impartial jury. And, as long as all seated
jurors are qualified and impartial, a defendant has suffered no constitutional injury and
any error can be deemed harmless. See State v. Darnell, 209 Ariz. 182, 98 P.3d 617, 621
(Ct. App. 2004), rev. denied and ordered depublished 210 Ariz. 77, 107 P.3d 923 (2005)
(harmless error review applies when trial court wrongly grants Batson challenge to
defendant's use of peremptory strike); Pfister v. State, 650 N.E.2d 1198, 1200 (Ind. App.
1995) (harmless error applies; error in case could not be deemed harmless); Moore v.
Commonwealth, 2011-SC-000700-MR, 2013 WL 1790303, at *4 (Ky. 2013)
(unpublished opinion) (preserved Batson error subject to usual standards of harmless
error analysis); State v. Letica, 356 S.W.3d 157, 165-66 (Mo. 2011) (erroneous Batson
ruling resulting in denial of peremptory challenge subject to harmless error analysis; error
harmless under facts); Cudjoe v. Commonwealth, 23 Va. App. 193, 203-04, 475 S.E.2d
821 (1996), overruled on other grounds by Roberts v. CSX Transp., Inc., 279 Va. 111,
688 S.E.2d 178 (2010) (statutory harmless error statute supplants structural error; on
record, unable to conclude error did not affect verdict).
170




In federal appellate courts, before Rivera was decided, the majority rejected
harmlessness analysis when a trial judge erroneously prevented a defendant's peremptory
challenge. See Tankleff v. Senkowski, 135 F.3d 235, 248 (2d Cir. 1998); Kirk v. Raymark
Indus., Inc., 61 F.3d 147, 159 (3d Cir. 1995); United States v. Hall, 152 F.3d 381, 408
(5th Cir. 1998); United States v. McFerron, 163 F.3d 952, 955-56 (6th Cir. 1998); United
States v. Underwood, 122 F.3d 389, 392 (7th Cir. 1997), cert. denied 524 U.S. 937
(1998); Ford v. Norris, 67 F.3d 162, 170 (8th Cir. 1995); United States v. Annigoni, 96
F.3d 1132, 1143 (9th Cir. 1996) (en banc).

But these opinions were largely dependent upon language from Swain v. Alabama,
380 U.S. 202, 219, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965): "The denial or impairment of
the right [to exercise peremptory challenges] is reversible error without a showing of
prejudice." And the United States Supreme Court has now called this language into
question.

In United States v. Martinez-Salazar, 528 U.S. 304, 120 S. Ct. 774, 782, 145 L.
Ed. 2d 792 (2000), the Ninth Circuit had relied on Swain to support its holding that the
trial court's erroneous denial of peremptory challenges required automatic reversal. The
United States Supreme Court did not address this aspect of the Ninth Circuit's decision
because it found no error, but it observed in dicta that "the oft-quoted language in Swain
was not only unnecessary to the decision in that case—because Swain did not address any
claim that a defendant had been denied a peremptory challenge—but was founded on a
series of our early cases decided long before the adoption of harmless-error review." 528
U.S. at 317 n.4.

The Court took another swipe at the Swain language in Rivera, when it said that
the language had been "disavowed" in Martinez-Salazar and further observed that it
171




"typically designate[s] an error as 'structural,' therefore 'requir[ing] automatic reversal,'
only when 'the error necessarily render[s] a criminal trial fundamentally unfair or an
unreliable vehicle for determining guilt or innocence.' [Citation omitted.] The mistaken
denial of a state-provided peremptory challenge does not, at least in the circumstances we
confront here, constitute an error of that character." Rivera, 556 U.S. at 160.

Since Rivera, the Ninth Circuit has abandoned its earlier practice of treating a trial
judge's erroneous denial of a defendant's peremptory challenge as structural error. See
United States v. Lindsey, 634 F.3d 541, 544 (9th Cir. 2011) cert. denied 131 S. Ct. 2475
(2011). Other federal circuits have followed suit. United States v. Gonzalez-Melendez,
594 F.3d 28, 33-34 (1st Cir. 2010); Jimenez v. City of Chicago, 732 F.3d 710, 715 (7th
Cir. 2013) cert. denied 134 S. Ct. 1797 (2014); Avichail ex rel. T.A. v. St. John's Mercy
Health Sys., 686 F.3d 548, 552-53 (8th Cir. 2012).

Kansas does not have a post-Rivera case on point.

Sixteen years before Rivera was decided, one Court of Appeals panel reversed a
conviction when the trial judge erroneously interfered with a defendant's right to exercise
a race-neutral peremptory challenge under K.S.A. 22-3412. State v. Foust, 18 Kan. App.
2d 617, 624, 857 P.2d 1368 (1993). The panel said: "Although it may seem minimal, the
deprivation of even one valid peremptory challenge is prejudicial to a defendant and may
skew the jury process." 18 Kan. App. 2d at 624.

In this court's opinion in State v. Heath, 264 Kan. 557, 588, 957 P.2d 449 (1998),
the defendant argued that the district judge's error in failing to remove an unqualified
juror for cause deprived him of his statutory right to exercise one of his peremptory
challenges. The defendant used a peremptory strike to correct the judge's mistake on the
challenge for cause. We held any error was harmless, reasoning that "[t]he whole purpose
172



of peremptory challenges is as a means to achieve an impartial jury . . . [t]here is no
evidence that the jury constituted was not impartial." 264 Kan. at 588.

In fact, this court long treated the Kansas peremptory challenge statute as little
more than a procedural device to ensure compliance with a defendant's constitutional
right to trial by a fair and impartial jury:

"The constitutional guaranty is that an accused shall be tried by an impartial jury. The
matter of peremptory challenges is merely statutory machinery for carrying out and
securing the constitutional guaranty. Error in overruling a challenge to a juror is not
ground for reversal unless the accused was prejudiced thereby. The real question is—
'Was the jury which tried defendant composed of impartial members?' In the absence of
any objection on the part of defendant to any member as it was finally drawn to try him
we cannot say it was not impartial." State v. Springer, 172 Kan. 239, 245, 239 P.2d 944
(1952).

Although there are authorities from our sister states and the federal courts that
come down gracefully on both sides of the issue, we are persuaded that an error such as
the one committed in this case should be subject to harmlessness review. The mistake
was made in good faith, and our Kansas precedent, although sparse, favors the view that a
peremptory challenge is simply a procedural vehicle for vindication of a defendant's right
to an impartial jury. The erroneous denial of a peremptory challenge does not require
automatic reversal. This holding is not only permissible under Rivera, but also consistent
with this court's development of harmless error review in recent years and the
legislature's expressed preference for the same. See Pabst v. State, 287 Kan. 1, 13, 192
P.3d 630 (2008) (vast majority of errors fall within category of "trial error[s]" subject to
harmless error review); K.S.A. 60-261 ("At every stage of the proceeding, the court must
disregard all errors and defects that do not affect any party's substantial rights."); K.S.A.
173



60-2105 (appellate courts shall disregard "mere technical errors and irregularities" not
affecting substantial rights).

Having already decided in the previous section that there was no error in denying
the defense challenge for cause to W.B., we see no prejudice from his ultimate seating on
the jury. R. Carr is not entitled to reversal of any of his convictions because of Judge
Clark's error on the reverse Batson challenge. See State v. McCullough, 293 Kan. 970,
983, 270 P.3d 1142 (2012) (no reasonable probability that such error affected the
outcome of the trial in light of the entire record).

6. CONFRONTATION AND ADMISSION OF WALENTA STATEMENTS

R. Carr argues that admission of statements made by Walenta violated his Sixth
Amendment right to confront the witnesses against him and requires reversal of his
felony murder conviction.

All parties agree that our review of this constitutional question is unlimited. See
State v. Belone, 295 Kan. 499, 502-03, 285 P.3d 378 (2012) (citing State v. Bennington,
293 Kan. 503, 507, 264 P.3d 440 [2011]; State v. Marquis, 292 Kan. 925, 928, 257 P.3d
775 [2011]; State v. Leshay, 289 Kan. 546, 547, 213 P.3d 1071 [2009]; State v. Ransom,
288 Kan. 697, 708-09, 207 P.3d 208 [2009]); see also State v. Brown, 285 Kan. 261, 282,
173 P.3d 612 (2007) (confrontation issues under both federal and state constitutions raise
questions of law subject to unlimited appellate review).

All parties also agree that our analysis of the merits of this issue should be guided
by Crawford v. Washington, 541 U.S. 36, 56, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
Crawford, a 2004 United States Supreme Court decision on the Confrontation Clause, has
174



superseded Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980),
which guided Judge Clark's rulings at the time of the defendants' trial.

Additional Factual and Procedural Background

During the several weeks that Walenta survived after she was shot, she made
several statements about the crime and her attacker. Her initial statements were made to
her neighbor Kelley, who came to Walenta's assistance within minutes of the shooting.
Walenta also was interviewed by several law enforcement investigators while in the
hospital. One of the statements she gave to investigators included her tentative
identification of R. Carr from a photo array. This conversation took place in the presence
of Walenta's husband.

No representative of the defendants was able to question Walenta before she died.

R. Carr filed a pretrial motion in limine to exclude any statement Walenta made to
Detective Randall Reynolds. At a hearing on the unsuccessful motion, counsel clearly
based the objection to Reynolds' testimony on this subject on the federal Confrontation
Clause.

At trial, neither R. Carr's counsel nor J. Carr's counsel objected to Kelley's
testimony about Walenta's statements until after Kelley had testified that Walenta told her
the person who shot her was a black man with wiry hair. At that point, the following
exchange occurred:

"[J. Carr's counsel]: Your Honor, at this time we're going to go ahead and make an
objection based on hearsay. There was an argument in a previous pretrial motion in this
regard and we would ask that it be a continuous objection to anything Miss Walenta said.
175




"[R. Carr's counsel]: Join, Your Honor.

"THE COURT: I'll overrule the objection, but I'll give you a continuing one to the line of
testimony."

After the continuing objection was granted, Kelley also testified that Walenta had
told her she was shot three times and that a light-colored car had followed her onto her
street.

Wichita Police Officer Joshua Lewis and Detective James Whittredge testified
about statements Walenta made to them. Lewis testified that, on December 11, Walenta
described her attacker as a black male about 6 feet tall, approximately 30 years old, with
long black hair. She also told Lewis and Whittredge that she had been followed by a
light-colored four-door vehicle. Whittredge testified that Walenta told him she did not
know the gunman and that he had not tried to rob her but had indicated he needed help.
Walenta also told Whittredge that the gunman—a black male in his 30s, 5 feet 7 inches to
6 feet tall, with long straight wiry hair—disappeared very quickly after the shooting.
Walenta associated the gunman with the light-colored four-door vehicle that had been
following her.

Reynolds testified that he spoke with Walenta about the crime on December 13
and 15. Among other things, during the first interview, Walenta told Reynolds that the
man who shot her got out of the passenger side of the vehicle and that he held his gun
palm down. She also told Reynolds that the man ran immediately after he shot her, and,
at the same time, she noticed that the car that had followed her started to pull away. She
was unsure whether the shooter was left behind.

176



Reynolds testified that he returned to the hospital to show Walenta photo arrays
containing pictures of R. Carr and J. Carr after their arrests on December 15. Walenta
said that a photo of R. Carr in the second position and a photo of another individual in the
first position in one array fit her attacker's general appearance. But she said that the photo
of R. Carr had eyes matching what she remembered. Reynolds had Walenta write this
information on the photo array containing R. Carr's picture. Walenta could not select
anyone who looked familiar from the array containing J. Carr's photo. Reynolds also
testified that, after Walenta died, he asked her husband to help him decipher Walenta's
handwritten notes on the photo array containing R. Carr's picture.

Defense counsel lodged several objections during the testimony of the three law
enforcement officers about Walenta's statements. Judge Clark overruled all of the specific
objections but twice granted additional continuing objections to such testimony.

Walenta's husband, Donald, testified that he was present during most of the law
enforcement interviews with his wife, including the one in which Reynolds showed his
wife the photo arrays. Donald heard the words his wife spoke to Reynolds and observed
her write on the photo array. He did not actually see what she had written until Reynolds
spoke to him after Walenta's death. Looking at the array while on the stand at trial,
Donald testified that his wife wrote: "No. 1 and No. 2 represent the man who assaulted
me. The general appearance of No. 1 . . . fits the assailant but the eyes, eye set of No. 2
also represents what I remember." Neither defendant objected to Donald's testimony.

Preservation of the Confrontation Clause Issue for Appeal

Because the Walenta felony murder was not subject to the death penalty, we do
not apply K.S.A. 21-6619(b), which requires us to overlook a preservation problem in the
review and appeal from a judgment of conviction resulting in a sentence of death.
177




The State suggests that the defendants failed to preserve any Confrontation Clause
issue on Walenta's statements for our review.

We agree with the State as to the part of Kelley's testimony that preceded Judge
Clark's granting of a continuing objection. The defense objections to Kelley's testimony
that Walenta told her a black man with wiry hair was the gunman came too late.

We disagree with the State that lack of preservation bars our consideration of the
Confrontation Clause issue as to the three law enforcement witnesses. The record reflects
multiple defense objections during their testimony, at least one referencing the
Confrontation Clause objection raised pretrial and at least two leading to more continuing
objections being granted by Judge Clark.

We agree with the State that there is a preservation problem with a Confrontation
Clause issue on the testimony from Walenta's husband about what his wife said to and
wrote for Reynolds in his presence. See K.S.A. 60-404 (contemporaneous objection rule);
see also State v. McCaslin, 291 Kan. 697, 706, 245 P.3d 1030 (2011) (application of
contemporaneous objection rule when Confrontation Clause objection not specific in
district court).

It is true that we have made an exception to the general contemporaneous
objection rule to consider Confrontation Clause arguments raised by defendants tried
before Crawford was decided. See State v. Brown, 285 Kan. 261, 281, 173 P.3d 612
(2007) (citing State v. Miller, 284 Kan. 682, 709, 163 P.3d 267 [2007]). But doing so in
this case would be inappropriate. Here, defense counsel repeatedly exhibited full
awareness of the potential of a Confrontation Clause violation; they registered numerous
objections to the testimony from Kelley and the law enforcement witnesses about what
178



Walenta communicated to them. The total absence of a defense objection during Donald's
testimony looks far more like strategy than ignorance.

Violation of Sixth Amendment

Crawford, 541 U.S. at 53-54, established that the Sixth Amendment Confrontation
Clause prevents out-of-court statements that are testimonial in nature from being
introduced against a criminal defendant unless the declarant is unavailable and the
defendant has had a previous opportunity to cross-examine him or her.

"The Confrontation Clause of the Sixth Amendment provides: 'In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.' In Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed.
2d 177 (2004), we held that this provision bars 'admission of testimonial statements of a
witness who did not appear at trial unless he was unavailable to testify, and the defendant
had had a prior opportunity for cross-examination.'" Davis v. Washington, 547 U.S. 813,
821, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).

This brings us to other points of agreement among the parties.

First, the State and the defendants agree that, under the standards set out by the
United States Supreme Court in Davis, and by this court in Brown, 285 Kan. at 291,
Walenta's statements presented through Kelley were not testimonial. They also agree that
Walenta's statements to the three law enforcement officers—Lewis, Whittredge and
Reynolds—were testimonial.

"Statements . . . made in the course of police interrogation . . . are testimonial when the
circumstances objectively indicate that there is no . . . ongoing emergency, and that the
primary purpose of the interrogation is to establish or prove past events potentially
relevant to later criminal prosecution." Davis, 547 U.S. at 822.
179




The State and the defendants also agree as a general matter that, despite the
general Crawford rule, testimonial statements of an absent declarant who has never been
cross-examined by the defense may be admitted under the doctrine of forfeiture by
wrongdoing. The doctrine applies when the declarant's absence is attributable to
wrongdoing by a defendant specifically intending to prevent the declarant from testifying.
See Giles v. California, 554 U.S. 353, 388, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008) (in
order to apply doctrine, State must prove by preponderance of evidence that defendant's
wrongdoing specifically intended to prevent testimony); State v. Belone, 295 Kan. 499,
504, 285 P.3d 378 (2012) (district judge erred by admitting victim's testimonial
statements to police when defendants' intent to prevent testimony not shown); State v.
Jones, 287 Kan. 559, 567-68, 197 P.3d 815 (2008) (same).

That is the point at which the parties' agreement ends. The State invokes the
doctrine to save the testimony from the three law enforcement officers, and the defense
argues that the doctrine was inapplicable. We need not settle this dispute because we are
persuaded that answering the question of whether any error on this issue was harmless is
dispositive.

Harmlessness

Harmless error analysis applies to errors under Crawford. Belone, 295 Kan. at
504-05; see Lilly v. Virginia, 527 U.S. 116, 139-40, 119 S. Ct. 1887, 144 L. Ed. 2d 117
(1999) (Confrontation Clause violation subject to harmless error review). A Kansas court
cannot declare an error implicating a right guaranteed by the United States Constitution
harmless unless it is persuaded beyond a reasonable doubt that there was no impact on the
trial's outcome, i.e., that the error did not contribute to the verdict. State v. Trujillo, 296
Kan. 625, 631, 294 P.3d 281 (2013); State v. Ward, 292 Kan. 541, 565, 256 P.3d 801
180



(2011) (citing Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705
[1967]), cert. denied 132 S. Ct. 1594 (2012). The State, as the party benefiting from any
error here, bears the burden to establish that any Confrontation Clause error was
harmless. Ward, 292 Kan. at 568-69.

The State can bear its burden here. The nontestimonial statements of Walenta to
Kelley to which she testified and the statements and actions of Walenta in her husband's
presence to which he testified without objection make the law enforcement testimony
harmless, because they covered much of the same ground. Walenta had told Kelley about
the black man with wiry hair who shot her three times and about a light-colored car that
followed her home, and Kelley passed this information on to the jury. Walenta's husband
was able to tell the jury about what was probably Walenta's biggest contribution to the
law enforcement investigation, her writing on the photo array containing R. Carr's
picture. Reynolds' testimony about the composition of the photo array, including
designation of R. Carr's picture as "No. 2" had been properly admitted without any
violation of Crawford. These facts were not communicated by Walenta at all.

In contrast, the only items of evidence drawn from Walenta's statements that the
three law enforcement witnesses may have added to the mix were her various and vague
estimates of the perpetrator's height and age, the fact that he held his gun palm down, and
the fact that he ran away as the light-colored car appeared to be leaving immediately after
the shooting. The specific way the gun was held was the only directly incriminating item
against R. Carr among these, because Schreiber testified that the first man who
approached him held his gun in the same way. Walenta's age and height estimates were
too vague to have much practical impact on the jury's consideration. And the description
of the light-colored car's departure was no more significant, and probably less significant,
than the circumstances of its arrival just behind Walenta's Yukon on her dead-end street,
a fact about which Kelley had already testified. As to J. Carr, the only other piece of
181



incriminating information that came from one of the three officers was that the gunman
exited the passenger side of the light-colored car. Like the car's departure, this tended to
show the involvement of a second perpetrator. But the idea that two people participated
in the Walenta incident was testified to without objection by a different law enforcement
witness.

Under these circumstances, we deem any error in admitting Walenta's statements
through the three law enforcement witnesses harmless beyond a reasonable doubt.

7. SUFFICIENCY OF EVIDENCE ON WALENTA FELONY MURDER

R. Carr argues that his felony murder conviction for the killing of Walenta must be
reversed because the State failed to present sufficient evidence of the underlying
attempted aggravated robbery.

Additional Factual and Procedural Background

There were no eyewitnesses to Walenta's shooting who testified at trial. Walenta
was alone when she was shot in the driver's seat of her Yukon in her driveway and died a
few weeks later.

Several other witnesses were permitted to testify to what Walenta told them about
the crime before she died. Their information included the following: Walenta noticed a
light-colored car following her as she drove home. When she pulled into her driveway,
she saw the car park. A black male got out of the passenger side of the car, approached
the driver's side of her Yukon. Walenta said that the man did not try to rob her but instead
indicated that he needed help. When Walenta rolled down her window a few inches, the
man immediately stuck a handgun into the opening, holding it palm down and pointing it
182



at her head. When she turned the ignition, the Yukon's starter made a grinding sound
because the car was already running. The man told her not to move the car. When she
nevertheless shifted into reverse, the man shot her three times. Then he ran. Walenta saw
the light-colored car begin to move away after the shots were fired, and it possibly left
the gunman behind.

Evidence at trial also showed several common elements among the three incidents
that gave rise to the charges against the defendants.

The gun used to shoot out one of Schreiber's tires, to shoot Walenta, and to shoot
at least Aaron S. in the soccer field after the crimes at the Birchwood residence was the
black Lorcin seen in the possession of J. Carr by Adams on the night of Walenta's
shooting. A light-colored car followed Walenta home on the night she was shot, and a
similar car followed a female next-door neighbor of the three friends who lived in the
Birchwood triplex when she drove home alone shortly before the home invasion. The
Schreiber and Birchwood incidents involved two black men, one of whom was identified
by a victim as R. Carr. Walenta also picked R. Carr's picture out of a photo array as the
person whose eyes most resembled those of her attacker. The Schreiber crime began with
a man identified as R. Carr approaching Schreiber's driver's side window. Both Schreiber
and four of the Birchwood victims were taken to ATMs to withdraw money from their
bank accounts, and the perpetrators took other property from them. All three incidents
occurred within days of each other in the northeast part of Wichita: the Schreiber
incident began on December 7; the Walenta incident occurred on December 11; the
Birchwood crimes occurred on December 14 and 15.

During an instructions conference at the defendants' trial, the State requested an
instruction telling jurors they could consider evidence related to the Schreiber and
Birchwood incidents "for the limited additional purpose of determining the intent,
183



identity, and motive of the defendant as alleged in the counts involving [Walenta] as an
alleged victim." R. Carr's counsel objected to the instruction, and Judge Clark denied the
State's request. The jury did receive an instruction telling it that each charged crime was a
separate and distinct offense and that the jury "must decide each charge separately on the
evidence and law applicable to it, uninfluenced by your decision as to any other charge."
Judge Clark also informed the jury that, in order to find R. Carr guilty of felony murder,
the State had to prove beyond a reasonable doubt that the killing of Walenta "was done
while in the commission of or attempting to commit aggravated robbery."

Evaluation of Evidence

When the sufficiency of the evidence is challenged in a criminal case,

"the standard of review is whether, after reviewing all the evidence in a light most
favorable to the prosecution, the appellate court is convinced a rational factfinder could
have found the defendant guilty beyond a reasonable doubt. Appellate courts do not
reweigh evidence, resolve evidentiary conflicts, or make witness credibility
determinations. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011)." State v.
Qualls, 297 Kan. 61, 66, 298 P.3d 311 (2013).

A conviction for felony murder cannot stand without sufficient evidence of one of
the enumerated inherently dangerous felonies listed in K.S.A. 21-3436. See State v.
Williams, 229 Kan. 290, 300, 623 P.2d 1334 (1981). Sufficient evidence, even for the
gravest of offenses, may consist entirely of circumstantial evidence. State v. Ward, 292
Kan. 541, Syl. ¶ 13 (2011).

R. Carr does not argue that we are prohibited from reviewing all evidence,
including inadmissible evidence, to determine sufficiency of the evidence on his felony
murder conviction. That we assumed error on the admissibility of law enforcement
184



statements in the previous section is no barrier to consider those same statements here.
See State v. Jefferson, 297 Kan. 1151, 1166, 310 P.3d 331 (2013) (reviewing court
considers erroneously admitted evidence in reviewing sufficiency of evidence).

When the evidence of the Walenta felony murder is considered in isolation, we
agree with R. Carr that it was insufficient to support his conviction of aggravated robbery
or attempted aggravated robbery. There simply was nothing to support an inference that
the man who shot Walenta took property or intended to take property from her. Cf. State
v. Calvin, 279 Kan. 193, 200, 105 P.3d 710 (2005) (felony murder conviction affirmed
based on underlying felony of attempted aggravated robbery; testimony offered
indicating defendant intended to rob murder victim). The State's case was just as
consistent with an intention to commit other crimes—e.g., aggravated assault, attempted
rape or other sex crimes, attempted aggravated kidnapping.

But our agreement with R. Carr on this point does not entitle him to reversal.

We have recently decided in another case that jurors may consider evidence from
a string of residential burglaries on the issue of whether one of the perpetrators of those
burglaries was present and participating in yet another burglary in the string, one that
ended in murder of the homeowner. See McBroom, 299 Kan. __, 325 P.3d 1174 (2014)
(slip op. at 33-34).

Likewise, the jury in this case could consider evidence against R. Carr on the
joined charges arising from the Schreiber and Birchwood crimes when deciding whether
to find him guilty or not guilty on the Walenta felony murder. The Schreiber and
Birchwood evidence did not qualify as suspect other crimes propensity evidence under
K.S.A. 60-455 and did not require a limiting instruction. See State v. Cromwell, 253 Kan.
495, 509, 856 P.2d 1299 (1993). In addition, the instruction given on the jury's duty to
185



consider each charge "separately on the evidence and law applicable to it, uninfluenced
by [the jury's] decision as to any other charge" did not prevent jurors from considering all
of the evidence admitted in this joint trial. Under McBroom, some of the evidence
supporting the Schreiber and Birchwood charges also supported or was, in the words of
the instruction, "applicable" to the Walenta charge.

With these rules established, the jury in this case was free to take into account that
the three incidents giving rise to the charges against R. Carr were close together in time.
Both Schreiber and Holly G. identified R. Carr as one of their assailants, and Walenta
selected R. Carr's picture from a photo array as the one in which the eyes most resembled
her attacker. Ballistics testing showed that the gun used in all three incidents was the
same. Schreiber described the man who approached him in the driver's seat of his car as
holding that gun palm down, which was the same as Walenta's description of her
attacker. The Schreiber and Birchwood crimes definitely involved two men, who
committed multiple aggravated robberies, and the Walenta crime appeared to involve a
confederate of the gunman who waited in the light-colored car that followed Walenta
home. A light-colored car also made a similar pass on the street of the Birchwood triplex
just before the home invasion and its aftermath. As with Walenta, the person driving the
car had followed a female neighbor going home alone in the late evening.

Because all of this evidence could be considered in conjunction with Walenta's
communicated recollections of the circumstances surrounding her shooting—and because
this evidence included multiple aggravated robberies facilitated by similar perpetrators
using similar tactics and the same gun—we reject R. Carr's challenge to the sufficiency of
the evidence to convict him of Walenta's felony murder based on aggravated robbery. A
rational factfinder could have found R. Carr guilty of this murder beyond a reasonable
doubt.

186



8. LESSER INCLUDED OFFENSE INSTRUCTIONS FOR FELONY MURDER

R. Carr did not request any lesser included offense instructions for felony murder
at trial. During deliberations, the jury asked: "Can a lesser count be considered for a
defendant on [the Walenta killing]?" Judge Clark responded: "The answer is no."

Because R. Carr sought no lesser included offense instructions, we review his
assertion that Judge Clark nevertheless should have given them for clear error. K.S.A. 22-
3414(3); State v. Briseno, 299 Kan. __, 326 P.3d 1074 (2014); State v. Williams, 295
Kan. 506, Syl. ¶ 3, 286 P.3d 195 (2012).

"To determine whether an instruction or a failure to give an instruction was
clearly erroneous, the reviewing court must first determine whether there was any error at
all. To make that determination, the appellate court must consider whether the subject
instruction was legally and factually appropriate, employing an unlimited review of the
entire record."

"If the reviewing court determines that the district court erred in giving or failing
to give a challenged instruction, then the clearly erroneous analysis moves to a
reversibility inquiry, wherein the court assesses whether it is firmly convinced that the
jury would have reached a different verdict had the instruction error not occurred. The
party claiming a clearly erroneous instruction maintains the burden to establish the degree
of prejudice necessary for reversal." Williams, 295 Kan. 506, Syl. ¶¶ 4-5.

Under K.S.A. 22-3414(3), a district judge must give lesser included offense
instructions "where there is some evidence that would reasonably justify a conviction of
some lesser included crime." At the time of the trial in this case, felony murder was
excepted from application of K.S.A. 22-3414(3) under a court-made rule. See State v.
Becker, 290 Kan. 842, 856-57, 235 P.3d 424 (2010) (lesser included offense instructions
187



need not be given in felony murder case unless evidence of underlying felony weak,
inconclusive, conflicting).

In State v. Berry, 292 Kan. 493, Syl. ¶ 6, 254 P.3d 1276 (2011), this court
abandoned the court-made exception to K.S.A. 22-3414(3). And we said that the holding
of Berry would apply to all cases then pending on direct appeal, which would include this
one. 292 Kan. at 514.

After Berry was decided, the legislature eliminated all lesser included offenses of
felony murder. See L. 2012, ch. 157, sec. 2; see also K.S.A. 2012 Supp. 21-5109(b)(1).

In State v. Wells, 297 Kan. 741, Syl. ¶ 8, 305 P.3d 568 (2013), we examined the
legislature's action and held that it "was not merely procedural or remedial but
substantive," which meant the new legislation was not retroactive and would not cover
this case.

The 2013 legislature acted again in reaction to Wells, making explicit its intention
that the abolition of lesser included offenses of felony murder be retroactive. See L. 2013,
ch. 96, sec. 2 (adding subsections [d], [e] to K.S.A. 2012 Supp. 21-5402; [d] reiterates
abolition; [e] expresses retroactive intention).

In light of these legal developments, this court ordered the parties to submit
supplemental briefing. They did so. Those supplemental briefs do not address the
prerequisites that a lesser included offense instruction be factually and legally
appropriate, and, for purposes of argument, we assume that at least second-degree murder
would have met those criteria under the Berry rule. The outcome on this issue then turns
only on whether the 2013 statutory amendments eliminating lesser included offenses for
felony murder apply in this case.
188




R. Carr argues that the amendments cannot apply without violation of the Ex Post
Facto Clause. We have now decided this issue adversely to him in State v. Todd, 299
Kan. 263, Syl. ¶ 4, 323 P.3d 829 (2014), and do not revisit the rule or rationale of that
case here.

R. Carr does not make an explicit due process argument to defeat application of
the amended statutes eliminating lesser included offenses to felony murder. But he does
assert that a defendant's theory that the State has overcharged and he or she should be
convicted instead of a lesser included offense is a type of defense to the more serious
charge. See State v. Plummer, 295 Kan. 156, 159, 168, 283 P.3d 202 (2012) (defendant's
theory of defense on aggravated robbery commission of theft followed by scuffle with
security guard trying to prevent escape of suspect; district judge erred in refusing to
instruct on theft). And a criminal defendant's right to present a defense and have jury
instructions supporting the defense given is based in due process principles. See State v.
McIver, 257 Kan. 420, Syl. ¶ 1, 902 P.2d 982 (1995); State v. Wade, 45 Kan. App. 2d
128, 135, 245 P.3d 1083 (2010). Thus, to the extent R. Carr relies on due process, we
dispose of that argument as well by observing that we have now decided this issue
against his position. See State v. Gleason, No. 97,296, 299 Kan. ___, ___ P.3d ___ (filed
July 18, 2014).

9. INSTRUCTION, MULTIPLICITY ON CAPITAL MURDER

Defendant J. Carr argues in his separate appeal that faulty instructions on the
K.S.A. 21-3439(a)(4) sex crime-based capital murders and a multiplicity problem on
three of the four K.S.A. 21-3439(a)(6) multiple-death capital murders combined to
require reversals. R. Carr makes the multiplicity argument. Because J. Carr and R. Carr
were tried together on the same alternative charges and a single set of jury instructions,
189



and because their jury completed identical verdict forms for the two defendants in exactly
the same way, J. Carr's arguments on this combination of infirmities and its effect apply
equally to R. Carr. Thus, although R. Carr made a less comprehensive argument on these
problems, we address it in his case as well. See K.S.A. 2013 Supp. 21-6619(b) (court
authorized to recognize, react to unassigned errors appearing in record on capital case "if
the ends of justice would be served thereby").

We focus first on the jury instructions on sex crime-based capital murder and the
wording of the verdict forms. Next this opinion addresses the multiplicity issue on three
of the four capital murder convictions. Ultimately, we conclude that these errors require
reversal of three of R. Carr's four capital murder convictions.

Additional Factual and Procedural Background

The amended complaint charged both defendants with capital murder in Counts 1
through 8. Each odd-numbered count among these eight was alternative to the even-
numbered count following it.

The odd-numbered counts alleged capital murder of one person—Heather M.,
Aaron S., Brad H., or Jason B.—under K.S.A. 21-3439(a)(4), which prohibits
premeditated murder of a victim of rape, criminal sodomy, or aggravated criminal
sodomy in the commission of, subsequent to, or in the attempt of any of those three
crimes.

The even-numbered counts alleged capital murder of all four victims of the
quadruple homicide under K.S.A. 21-3439(a)(6), which prohibits the "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
190



course of conduct." Each count was drafted to accuse the defendants of killing one of the
four victims in a transaction in which the three others also were killed. The only
difference from one even-numbered count to the next was the position of the victims'
names.

A single set of jury instructions on the alternative capital counts applied to both
defendants, and the eight capital counts from the amended complaint were combined into
four instructions labeled Counts "One (1)" through "Four (4)." The heading of each
instruction named one of the quadruple homicide victims as its subject, but the text of the
four instructions was exactly the same, with the exception of the shifting positions of the
four victims' names on the multiple-homicide alternative.

For example, Instruction No. 12 on the capital murder of Heather M. read:

"INSTRUCTION NO. 12
"COUNT ONE (1)
"HEATHER [M.]

"Each defendant is charged in Count One with the crime of Capital Murder. Each
defendant pleads not guilty to the charge.

"To establish this charge against an individual defendant, each of the following claims
must be proved. Each must be proved beyond a reasonable doubt.

"1. That the defendant intentionally killed Heather [M.];

"2. That such killing was done with premeditation;

191



"3. (A.) That Heather [M.] was a victim of rape and/or
aggravated criminal sodomy, and such killing was done in the commission
of or subsequent to such rape and/or aggravated criminal sodomy;

"OR

"3. (B.) That the premeditated and intentional killing of
Heather [M.] and the killing of Brad [H.], Jason [B.] and Aaron [S.] was [sic] a
part of the same act or a part of two or more acts connected together or
constituting parts of a common scheme or course of conduct;

"4. That this act occurred on or between the 14
th
day of
December, 2000, and the 15
th
day of December, 2000, in Sedgwick
County, Kansas.

"The elements of the crime of Rape are found in Instruction No. 37 and those of
Aggravated Criminal Sodomy are found in Instruction No. 39."

Instruction number 37, incorporated into each of the four instructions on the
elements of capital murder, read:

"INSTRUCTION NO. 37
"COUNT SEVENTEEN (l7)
"H.G.

"Each defendant is charged in Count Seventeen with the crime of Rape. Each defendant
pleads not guilty.

"To establish this charge against an individual defendant, the following elements must be
proved. Each must be proved beyond a reasonable doubt.

192



"1. That the defendant caused H.G. to commit an act of sexual intercourse
with Heather [M.];

"2. That the act of sexual intercourse was committed without the consent of
H.G. under circumstances where she was overcome by force or fear; and

"3. That this act occurred on or between the 14
th
day of December, 2000, and the 15
th
day
of December, 2000, in Sedgwick County, Kansas.

"Sexual intercourse means any penetration of the female sex organ by a finger, the male
sex organ or any object. Any penetration, however slight, is sufficient to constitute sexual
intercourse."

Instruction 39, also incorporated into each of the instructions on the elements of
capital murder, read:

"INSTRUCTION 39
"COUNT NINETEEN (19)
"H.G.

"Each defendant is charged in Count Nineteen with the crime of Aggravated Criminal
Sodomy. Each defendant pleads not guilty.

"To establish this charge against an individual defendant, the following elements must be
proved. Each must be proved beyond a reasonable doubt.

"1. That the defendant caused H.G. to engage in sodomy with Heather [M.];

"2. That the act of sodomy was committed without the consent of H.G. under
circumstances where she was overcome by force or fear; and

193



"3. That this act occurred on or between the 14
th
day of December, 2000, and the 15
th
day
of December, 2000, in Sedgwick County, Kansas.

"Sodomy means oral contact or oral penetration of the female genitalia or oral contact of
the male genitalia or anal penetration, however slight, of a male or female by any body
part or any object."

In other words, the four jury instructions on the elements of sex crime-based
capital murder—whether the victim named in the heading was Heather M., Aaron S.,
Brad H., or Jason B.—directed jurors to Instructions 37 and 39 for the elements of the
crimes capable of supporting convictions of the defendants for capital murder under
K.S.A. 21-3439(a)(4). And Instructions 37 and 39 were the elements instructions for rape
and aggravated sodomy of Holly G., and not of any of the four homicide victims.

Instruction No. 72, the jury's final instruction, said that its "agreement on a verdict
must be unanimous."

The verdict forms for each defendant also combined the alternative counts from
the amended complaint into four counts and were identically worded from count to count
and from defendant to defendant, with the exception of their headings and the shifting
positions of the four victims' names on the multiple-homicide alternative.

For example, the verdict form for R. Carr for Count 1, the capital murder of
Heather M., read:

"We, the jury, being duly sworn upon our oath make the following findings concerning
the crimes charged against the defendant Reginald D. Carr, Jr.:

194



"COUNT ONE (1)
"CAPITAL MURDER
"HEATHER [M.]

"1. ___ Guilty of the Capital Murder of Heather [M.]

"Please circle the letter (A. and/or B.) in front of each statement that you
find has been proved by the evidence:

A. We find that the evidence proves that Heather [M.] was a victim of rape
and/or aggravated criminal sodomy and she was killed in the commission of
or subsequent to such rape and/or aggravated criminal sodomy.

B. We find that the evidence proves that the premeditated and intentional killing
of Heather [M.] and the killing of Brad [H.], Jason [B.] and Aaron [S.] was
[sic] a part of the same act or a part of two or more acts connected together or
constituting parts of a common scheme or course of conduct.

OR
(FIRST LESSER INCLUDED OFFENSE)

"2. ___Guilty of the First Degree Murder of Heather [M.]

OR
(SECOND LESSER INCLUDED OFFENSE)

"3. ___ Guilty of the Second Degree Murder of Heather [M.]

OR

"4. ___Not guilty of Count One (1)

195



The jury found both defendants guilty on all four counts of capital murder. On
each of the four verdict forms for both defendants, the jury circled both the A and B
options.

The Legal Framework and the Parties' Arguments

The defense arguments on this issue have their genesis in a rule recognized by the
United States Supreme Court in 1931 in Stromberg v. People of State of California, 283
U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117 (1931).

In that case, the defendant was charged with displaying a red flag in violation of a
statute that prohibited the display "as a sign, symbol or emblem of opposition to
organized government or as an invitation or stimulus to anarchistic action or as an aid to
propaganda that is of a seditious character." 283 U.S. at 361. The instructions charged the
jury in the language of the statute, and jurors were told they could find the defendant
guilty if she had displayed the flag for any of the three listed purposes. The jury returned
a general verdict of guilty. 283 U.S. at 361, 363, 367-68.

The state appellate court, while doubting the constitutionality of the statute's
prohibition of a display "as a sign, symbol or emblem of opposition to organized
government," nevertheless upheld the defendant's conviction because it believed the rest
of the statute to be constitutional. 283 U.S. at 361.

The United States Supreme Court rejected the state appellate court's reasoning,
saying:

"We are unable to agree with this disposition of the case. The verdict against the
appellant was a general one. It did not specify the ground upon which it rested. As there
196



were three purposes set forth in the statute, and the [jurors were] instructed that their
verdict might be given with respect to any one of them, independently considered, it is
impossible to say under which clause of the statute the conviction was obtained. If any
one of these clauses, which the state court has held to be separable, was invalid, it cannot
be determined upon this record that the appellant was not convicted under that
clause . . . . It follows that instead of its being permissible to hold, with the state court,
that the verdict could be sustained if any one of the clauses of the statute were found to be
valid, the necessary conclusion from the manner in which the case was sent to the jury is
that, if any of the clauses in question is invalid under the Federal Constitution, the
conviction cannot be upheld." 283 U.S. at 367-68.

Stromberg was followed by two other United States Supreme Court cases relevant
here.

In Yates v. United States, 354 U.S. 298, 77 S. Ct. 1064, 1 L. Ed. 2d 1356 (1957),
overruled on other grounds Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed.
2d 1 (1978), the Supreme Court applied the logic of Stromberg to a case in which neither
of the two ways in which the jury could have arrived at conviction was constitutionally
inadequate, but one of them was barred by the statute of limitations. "In these
circumstances we think the proper rule to be applied is that which requires a verdict to be
set aside in cases where the verdict is supportable on one ground, but not on another, and
it is impossible to tell which ground the jury selected." Yates, 354 U.S. at 312 (citing
Stromberg, 283 U.S. at 367-68); Cramer v. United States, 325 U.S. 1, 36, 65 S. Ct. 918,
89 L. Ed. 1441 [1945]); Williams v. State of North Carolina, 317 U.S. 287, 291-92, 63 S.
Ct. 207, 87 L. Ed. 279 [1942]).

In the other case, Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466, 116 L. Ed.
2d 371 (1991), the Court addressed a situation in which an absence of proof, rather than
legal insufficiency, was at issue. The Court left the holdings of both Stromberg and Yates
197



intact. See Hedgpeth v. Pulido, 555 U.S. 57, 58, 129 S. Ct. 530, 172 L. Ed. 2d 388 (2008)
("A conviction based on a general verdict is subject to challenge if the jury was instructed
on alternative theories of guilt and may have relied on an invalid one.") (citing
Stromberg, 283 U.S. 359; Yates, 354 U.S. 298).

Acknowledging that "a host of our decisions" before and after Yates had applied
"'the rule of the Stromberg case to general-verdict convictions that may have rested on an
unconstitutional ground," the Court recognized that Yates extended the holding of
Stromberg to a new situation, one in which a possible basis of a general verdict "did not
violate any provision of the Constitution but was simply legally inadequate." Griffin, 502
U.S. at 55.

Griffin did not do likewise when the problem with a possible avenue to conviction
was factual rather than legal. 502 U.S. at 59 (citing Duncan v. Louisiana, 391 U.S. 145,
157, 88 S. Ct. 1444, 20 L. Ed. 2d 491 [1968]).

Our Kansas precedent demonstrates at least some inclination to embrace the
general rationale and result of Stromberg, as extended by Yates. See State v. Kunellis, 276
Kan. 461, 78 P.3d 776 (2003) (when verdict shows jury specifically rejected legally
sound theory in favor of what court deems legally unsound theory, conviction must be
reversed).

Several federal circuit courts and other state courts follow Stromberg and Yates.
See United States v. Lawson, 677 F.3d 629, 655 (4th Cir. 2012), cert. denied 133 S. Ct.
393 (2012) (Yates requires reversal when case submitted to jury on two or more theories,
one theory legally inadequate; general verdict cannot rule out jury reliance on inadequate
theory); United States v. Howard, 517 F.3d 731 736-37, (5th Cir. 2008) (same); People v.
Morgan, 42 Cal. 4th 593, 612-13, 170 P.3d 129 (2007) (prosecutor's argument on one
198



legally adequate, one legally inadequate theory requires reversal when instructions did
not guide jury; impossible to determine which theory formed basis of verdict); Fitzpatrick
v. State, 859 So. 2d 486, 491 (Fla. 2003) (conviction resting on general jury verdict that
may have been based on legally insufficient theory cannot be sustained); Robinson v.
State, 266 S.W.3d 8, 14 (Tex. App. 2008) petition for discretionary review refused (Feb
25, 2009) (jury's option to convict on legally defective theory egregious error in capital
murder case).

In Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983), the
United States Supreme Court recognized two rules that could be taken from Stromberg:

"One rule derived from the Stromberg case requires that a general verdict must
be set aside if the jury was instructed that it could rely on any of two or more independent
grounds, and one of those grounds is insufficient, because the verdict may have rested
exclusively on the insufficient ground. . . .

"The second rule derived from the Stromberg case . . . made clear that the
reasoning of Stromberg encompasses a situation in which the general verdict on a single-
count indictment or information rested on both a constitutional and an unconstitutional
ground." 462 U.S. at 881-82.

The defense argument is that all four of the capital murder convictions must be
reversed; one conviction, because it rested on both a legally adequate and legally
inadequate ground, and three convictions, because they rested on two legally inadequate
grounds. The State argues that the jury unanimously found the defendants guilty on each
ground and that at least one ground was valid for each conviction, preserving all four
verdicts.

199



Our overview of the legal framework and the parties' arguments brings us to the
question of whether either or both of the capital murder theories pursued by the State was
legally inadequate. As stated, we first focus on the instructions given for the sex crime-
based K.S.A. 21-3439(a)(4) capital murder alternative.

K.S.A. 21-3439(a)(4) Instructions Evaluation

Neither defendant objected to the K.S.A. 21-3439(a)(4) instructions. Our review is
therefore governed by K.S.A. 22-3414(3): "No party may assign as error the giving or
failure to give an instruction . . . unless the party objects thereto . . . unless the instruction
or the failure to give an instruction is clearly erroneous." See State v. Kleypas, 272 Kan.
894, 939, 40 P.3d 139 (2001) (clearly erroneous standard applies in death penalty cases).

We have recently expanded on exactly what "clearly erroneous" means.

In State v. Williams, 295 Kan. 506, 286 P.3d 195 (2012), we said that the phrase
serves as both a conditional grant of reviewability when the instruction issue was not
preserved below and as a standard of reversibility if error in the instruction is identified.
295 Kan. at 515. We deal here with reviewability, which is not only provided for by
K.S.A. 22-3414(3) itself; it is also provided for by K.S.A. 2013 Supp. 21-6619(b) for
death penalty cases. Under Williams, once reviewability is resolved, we determine de
novo whether there was any error in the instructions. To make that determination, we
"'consider whether the subject instruction was legally and factually appropriate,
employing an unlimited review of the entire record.'" State v. Herbel, 296 Kan. 1101,
1121, 299 P.3d 292 (2013) (quoting Williams, 295 Kan. 506, Syl. ¶ 4).

As we explained the concept of "legally and factually appropriate" in State v.
Plummer, 295 Kan. 156, 161, 283 P.3d 202 (2012):
200




"[A]n instruction must always fairly and accurately state the applicable
law, and an instruction that does not do so would be legally infirm . . . .

"Next, even if the instruction is legally appropriate when viewed
in isolation, it must be supported by the particular facts of the case at
bar."

Under Williams, the burden to show error is always on the complaining party, in
this case, the defendants.

The defense characterizes the portions of the capital murder instructions focused
on K.S.A. 21-3439(a)(4) as legally inappropriate because they failed to state the elements
required to prove the offense and thus violated the defendants' rights under the Sixth and
Fourteenth Amendments to the United States Constitution. In particular, J. Carr argues in
his brief:

"[B]ecause a conviction of capital murder under K.S.A. 2l-3439(a)(4) is dependent upon
elements of a specific sex offense against the particular victim killed—indeed, it is the
commission of the sex offense which elevates the intentional and premeditated killing of
a particular person from ordinary premeditated first-degree murder to capital murder—
the elements pertaining to the underlying sex offense are essential elements of the crime
of capital murder that must be submitted to a jury and found unanimously beyond a
reasonable doubt as required under the Sixth and Fourteenth Amendments to the United
States Constitution. See Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S.
Ct. 2348 (2000) (Sixth Amendment requires that finding of fact which increases the
maximum sentence be found by a jury beyond a reasonable doubt); Ring v. Arizona, 536
U.S. 584, 153 L. Ed. 2d 556,122 S. Ct. 2428 (2002) (Sixth Amendment right to jury trial
extends to finding of fact necessary to impose death penalty), overruling Walton v.
Arizona, 497 U.S. 639, 111 L. Ed. 2d 511, 110 S. Ct. 3047(1990). See also Schad v.
Arizona, 501 U.S. 624, 637-643, 115 L. Ed. 2d 555, 111 S. Ct. 2491 (1991) (when
201



legislature's definition of offense specifies facts which are 'necessary to constitute the
crime,' due process and fundamental fairness, and the rationality that is a component of
fundamental fairness, require that such facts be found by the jury beyond a reasonable
doubt) (quoting In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068
(1970) . . .). Consequently, when the jury is instructed on the elements of a capital murder
charge under K.S.A. 2l-3439(a)(4), the instruction must specify and set forth the elements
of the underlying sex offense on which the conviction of capital murder depends." State
v. Carr, No. 90,198, Brief of Appellant, 90-91.

This argument is correct. The portions of the capital murder instructions focused
on K.S.A. 21-3439(a)(4) incorporated the elements from two other instructions, 37 and
39, that attempted to describe sex offenses against Holly G. rather than the victim of the
murder. Although Judge Clark used the then-current PIK instruction on capital murder,
he apparently did not fully grasp the import of the comments to that instruction, which
included: "When defendant is charged with a capital murder done in the commission of
or subsequent to another offense, the elements of the other offense should be set out in a
separate instruction." PIK Crim. 3d 56.00-A (2002 Supp.). Instead, Judge Clark directed
the jury to instructions that, although they were separate, dealt with crimes against a
victim other than those who were the victims of the capital crimes. We note that the PIK
Committee has now made the error committed here more obvious by placing the
elements of the underlying offense against a capital murder victim in the capital murder
instruction itself. See PIK Crim. 4th 54.020.

Numerous cases of this court have held that "[w]hen a statute makes the
commission of a crime or the intent to commit a crime an element of another crime, the
jury instructions must set out the statutory elements of the underlying offense." State v.
Richardson, 290 Kan. 176, 182, 224 P.3d 553 (2010) (instructions should have identified,
defined moving violations forming basis for charge of felony fleeing, attempting to elude
police officer) (citing State v. Rush, 255 Kan. 672, 679, 877 P.2d 386 [1994] [when judge
202



instructed on burglary, element of defendant knowingly entering building "with intent to
commit a theft therein" mentioned; yet instruction failed to instruct jury completely on
elements of theft]); State v. Linn, 251 Kan. 797, 801-02, 840 P.2d 1133 [1992]
superseded by statute on other grounds State v. Hedges, 269 Kan. 895, 8 P.3d 1259
[2000] [aggravated burglary instruction must set out elements of offense intended by
accused when making unauthorized entry]); see State v. Rivera, 48 Kan. App. 2d 417,
446-47, 291 P.3d 512 (2012) (defendant charged with involuntary manslaughter,
endangering child; although elements of endangering child set out in instruction for that
charge, error to omit them in instruction on involuntary manslaughter).

The disconnect between the K.S.A. 21-3439(a)(4) language in the capital murder
instructions and the incorporated language in Instructions 37 and 39 on rape and
aggravated criminal sodomy means that those portions of the capital murder instructions
were incorrect statements of the governing law. Because a complete and accurate listing
of the elements of the charged offense is fairly described as one of the most basic
requirements of criminal jury instructions, one of the indispensable building blocks of
any resulting conviction, see In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed.
2d 368 (1970), under Williams, the instructions were legally inappropriate; under
Stromberg and Yates, they were legally inadequate. See Griffin, 502 U.S. at 55. For our
purposes, we need not consider whether the instructions also were factually
inappropriate.

Were we reviewing these instructions in isolation under Williams, we would next
move to the reversibility under the "clearly erroneous" rubric. See Williams, 295 Kan. at
516. Under Stromberg, however, the next question is whether the other theory available
to the jury was legally adequate. Consequently we turn to the alternatives based upon
multiple homicides under K.S.A. 21-3439(a)(6) to determine whether they provided the
jury a legally adequate alternative on which to base the capital convictions.
203




K.S.A. 21-3439(a)(6) Multiplicity Evaluation

R. Carr challenges three of his four capital murder convictions, to the extent they
were based on the multiple-homicide theory of K.S.A. 21-3439(a)(6), as multiplicitous.

"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)."
State v. Appleby, 289 Kan. 1017, 1026, 221 P.3d 525 (2009). Such a claim raises a
question of law. State v. Scott, 286 Kan. 54, 65, 183 P.3d 801 (2008) (quoting Harris,
284 Kan. 560, Syl. ¶ 3).

Multiplicity is the charging of a single offense in more than one count of a
complaint or information. It creates the potential for multiple punishments for a single
crime, offending the Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution and Section 10 of the Kansas Constitution Bill of Rights. State v.
Scott, 286 Kan. at 65 (quoting Harris, 284 Kan. 560, Syl. ¶ 1).

Although neither defendant objected at trial to the State pursuing multiple capital
murder convictions under K.S.A. 21-3439(a)(6), their multiplicity claim can be
considered for the first time on appeal in order to serve the ends of justice and prevent a
denial of fundamental rights. Harris, 284 Kan. at 569; State v. Nguyen, 285 Kan. 418,
433, 172 P.3d 1165 (2007) (addressing multiplicity claim for first time on appeal because
it implicates fundamental right not to be placed in jeopardy twice for same offense). In
addition, K.S.A. 2013 Supp. 21-6619(b) requires us to "consider . . . any errors asserted"
in a death penalty case.

204



All four capital convictions against the defendants rest, at least in part, on a jury
finding that each defendant intentionally and with premeditation killed more than one
person under K.S.A. 21-3439(a)(6). The State concedes that only one capital conviction
under this statutory subsection can stand, and that the three others, to the extent they rest
on that theory, are multiplicitous. See Harris, 284 Kan. at 571-78 (unit of prosecution
under K.S.A. 21-3439[a][6] is more than one killing; more than one victim required to
have prosecutable offense; killing of second, subsequent victim makes murder of group
of victims punishable by death).

Under the language of the amended complaint and the jury instructions in this
case, in order to avoid double jeopardy under the federal and state constitutions, R. Carr
could be convicted and punished for only one count of capital murder under K.S.A. 21-
3439(a)(6) for the killing of all four victims. The jury's reliance on 21-3439(a)(6) to
undergird his three other capital convictions was, therefore, legally inadequate under
Stromberg and Yates.

We turn next to whether any of the capital convictions may yet stand because the
constitutional error identified in Stromberg and Yates can be deemed harmless. See
Hedgpeth v. Pulido, 555 U.S. 57, 60-61, 129 S. Ct. 530, 172 L. Ed. 2d 388 (2008)
(Stromberg, Yates predated United States Supreme Court's recognition in Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 [1967], of harmlessness of some
constitutional error; error not structural, subject to harmless error test).

Under Chapman, "before a federal constitutional error can be held harmless, the
court must be able to declare a belief that it was harmless beyond a reasonable doubt."
386 U.S. at 24. The issue is not whether the jury would have reached a different verdict
but rather whether it appears "beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained." 386 U.S. at 24.
205




We begin by recalling that Zant, 462 U.S. at 881-82, identified two possible errors
derived from Stromberg—one being that the jury may have chosen to base a conviction
on a legally inadequate ground rather than the otherwise legally adequate grounds
permitted in the instructions, and one being that a jury did rely on both an adequate and
inadequate ground.

The jury had the option under Section 1 on Guilt of Capital Murder to circle A
"and/or" B on the forms, indicating its finding that the State had proved both or just one
theory of capital murder. Option A was sex crime-based capital murder under K.S.A. 21-
3439(a)(4), and Option B was multiple-homicide capital murder under K.S.A. 21-
3439(a)(6). The jury circled both options for each of the four victims.

On three of four of the capital verdict forms, because of the "and/or" between A
and B on the verdict forms submitted to the jury, it was permitted to find guilt by
selecting a legally inadequate ground under the K.S.A. 21-3439(a)(4) instructions or a
legally inadequate ground on the K.S.A. 21-3439(a)(6) multiplicitous charges. Because
the jury circled both A and B, we know that the jury's four guilty verdicts on capital
murder counts actually were based on both subsections of the statute. This resembles the
second type of Stromberg error, because we know the jury relied on a legally inadequate
ground. And since there was no legally adequate ground presented on three of those
charges, we conclude that three of the four capital convictions must be reversed.

On R. Carr's remaining capital conviction, we are convinced that reversal is
unnecessary under Chapman's harmless error standard.

We have two reasons for this holding.

206



First is the last line of the jury instructions given by Judge Clark: "Your
agreement upon a verdict must be unanimous." When this sentence is read in conjunction
with the "and/or" language on the verdict forms, we believe the most sensible and by far
most likely construction is that neither A nor B could be circled if jurors did not
unanimously vote for guilt on the individual theory following that letter designation.
There is nothing in the instructions or verdict form indicating that jurors were told or
would have understood that they were free to cobble together theories to get 12 votes for
guilt. This means that one of the jury's unanimous verdicts on the K.S.A. 21-3439(a)(6)
multiple-homicide theory was not polluted by either instruction error or multiplicity. This
convinces us beyond a reasonable doubt that the instructional error on the sex-crime
alternative for this count did not contribute to the verdict obtained on the valid multiple-
homicide alternative.

Second is the nature of the evidence on the capital murders. There was no possible
dispute that four persons were shot and killed in the early morning of December 15,
2000, while kneeling side by side in the snow. The essence of R. Carr's defense was that
Holly G.'s identification of him was mistaken and that he was not one of the two men
who participated in these shootings or the crimes that preceded them. He did not, and
could not, credibly assert that only Heather M. or only Aaron S. or only Brad H. or only
Jason B. died. This reinforces our decision to affirm one of the K.S.A. 21-3439(a)(6)
convictions. That subsection of the statute focuses on multiple homicides; it is the fact
that more than one person is killed that elevates the crime from premeditated first-degree
murder to a death-eligible crime. The jury in this case, indeed, no jury who heard the
same evidence as that put on in this case, could have concluded this was not a multiple-
homicide situation. There was nothing about the instructions or verdict forms used here
that could have altered that reality.

207



We are left with the task of specifying, for procedure's sake, the conviction that
will be upheld. We note in doing so that the manner in which the State charged the
multiple murder counts ties each charge to a particular victim when, in fact, it was the
murder of all four victims that is punishable by death. Because the charge alleging the
capital murder of Heather M. was the first in the amended complaint, the jury
instructions, and the verdict forms, we choose that conviction to uphold. In doing so, we
wish to make clear that we are upholding R. Carr's capital conviction for the murder of all
four of the victims.

10. SPECIAL UNANIMITY INSTRUCTION ON CAPITAL MURDER

R. Carr asserts on appeal that the jury should have been given a special unanimity
instruction on alternative capital murder charges based on K.S.A. 21-3439(a)(4) because
jurors may not have understood that they needed to be unanimous on the sex crime
underlying each capital murder charge under this subsection.

R. Carr's argument reflects a misunderstanding of the difference between a
multiple acts issue and an alternative means issue. They differ in critical ways. See State
v. Becker, 290 Kan. 842, 854-55, 235 P.3d 424 (2010).

At most, if more than one possible sex crime underlay each capital murder charge
based on K.S.A. 21-3439(a)(4), that would set up the possibility of an alternative means
issue, requiring the State to put on sufficient evidence of each sex crime as a means of
committing the one capital murder charged. See State v. Brown, 295 Kan. 181, 196-97,
284 P.3d 977 (2012).

If more than one possible sex crime underlay each capital murder charge based on
K.S.A. 21-3439(a)(4), that would not set up a multiple acts issue requiring a special
208



unanimity instruction or an election by the prosecution. See State v. Ultreras, 296 Kan.
828, 854-55, 295 P.3d 1020 (2013); State v. Voyles, 284 Kan. 239, Syl. ¶ 2, 160 P.3d 794
(2007). There was a single offense committed for each of the alternative K.S.A. 21-
3439(a)(4) capital murders charged in this case, i.e., the killing of each of the four victims
of the quadruple homicide.

Having made these preliminary comments, we decline to further discuss the merits
of this issue because it is moot. See State v. Dominguez, 299 Kan. 567, 593, ___ P.3d ___
(2014) (appellate courts do not generally decide moot questions). We have already ruled
that instructions on the K.S.A. 21-3439(a)(4) alternative capital murder charges were
legally unsound and, to the extent R. Carr's s four capital convictions rested upon them,
they have to be reversed.

11. SEX OFFENSES AS LESSER INCLUDED OFFENSES OF CAPITAL MURDER

R. Carr argues that his convictions for certain sex offenses must be reversed
because the sex offenses constitute lesser included offenses of capital murder under
K.S.A. 21-3439(a)(4). Because we have decided that all of the capital convictions, to the
extent they rested upon this subsection of the statute, must be reversed because of fatal
instruction error, we need not reach this lesser included offenses argument. It is moot,
and appellate courts do not generally decide moot questions. See Dominguez, 299 Kan. at
593.

12. SUFFICIENCY OF EVIDENCE OF AGGRAVATED BURGLARY

J. Carr has challenged the sufficiency of evidence to prove aggravated burglary of
the Birchwood home in his separate appeal. We treat this issue as potential unassigned
error in this appeal on behalf of R. Carr. See K.S.A. 2013 Supp. 21-6619(b). Because the
209



defendants were tried together on the same evidence in support of the same complaint
and under the same jury instructions, the legal arguments made on behalf of one
defendant on this issue apply equally to the other. Under K.S.A. 2013 Supp. 21-6619(b),
which permits us to notice unassigned error in a capital case, we take up all defense
arguments in this opinion on the Birchwood crimes, regardless of whether any individual
argument was raised first by R. Carr or by J. Carr.

Our standard of review on sufficiency of the evidence is whether, after reviewing
all the evidence in the light most favorable to the prosecution, the appellate court is
convinced that a rational factfinder could have found the defendant guilty beyond a
reasonable doubt. State v. Lopez, 299 Kan. 324, 328, 323 P.3d 1260 (2014) (citing State
v. Harris, 297 Kan. 1076, 1081, 306 P.3d 282 [2013], and State v. Qualls, 297 Kan. 61,
Syl. ¶ 1, 298 P.3d 311 [2013]).

Aggravated burglary requires entering into or remaining within any occupied
structure without authority and with intent to commit a felony therein. See K.S.A. 21-
3716. The defense argues that there was no evidence in this case that the defendants
entered into or remained within the Birchwood home without authority.

We disagree. Even the most serious crime can be proved by circumstantial
evidence. See Lopez, 299 Kan. at 332 (citing State v. Doyle, 272 Kan. 1157, 1162, 38
P.3d 650 [2002]). And, here, there was abundant evidence, albeit circumstantial, that the
defendants entered into and remained within the home without authority.

Although Holly G. did not see the defendants enter the house from the outdoors,
she testified that Jason B. had locked up and turned out the front porch light, that he and
she had retired to his bedroom for the night, and that the porch light came back on and
she heard Aaron S.'s voice and another voice she did not recognize. Right away, she said,
210



the door to Jason B.'s bedroom burst open and the defendants, both holding guns, entered.
One of them ripped the covers off the bed. The other brought Aaron S. into the room,
holding him by the back of his shirt, and threw him onto the bed. Both defendants started
shouting questions and orders. Brad H. had to be brought in from his bedroom in the
basement of the home. Heather M. had to be brought in from Aaron S.'s bedroom. This
testimony certainly supported an inference that any other visitor was unexpected and
unwelcome.

It is true that Holly G. did not testify that any of the Birchwood victims ever
demanded or requested that the defendants leave the home, but the absence of such an
explicit demand or request, given the guns that the defendants persisted in waving around
and their intermittent oral threats, cannot be equated with permission for their continued
presence in the home.

The cases cited by the defense are distinguishable and unconvincing. See State v.
Hall, 270 Kan. 194, 14 P.3d 404 (2000); State v.Gutierrez, 285 Kan. 332, 172 P.3d 18
(2007). They deal with situations in which defendants entered structures when they
clearly had permission to do so and the issue was whether permission was withdrawn.
The evidence before the jury in this case, viewed in the light most favorable to the State,
supported a reasonable inference that Aaron S. responded to a knock at the front door and
was met by two armed men who immediately threatened him with guns and entered
without consent, taking him captive as they did so. It also supports the inference that the
armed men remained in the home without permission, but only by terrorizing Holly G.
and the four other victims.

This issue is without merit.

211



13. COERCED VICTIM-ON-VICTIM ACTS

Under assorted issue headings in their briefs to this court, the defendants have
argued that there are three types of infirmities in their rape and attempted rape
convictions on charges in which the defendants are alleged to have forced one of the
Birchwood victims to engage in a sex act with another victim, i.e., "victim-on-victim"
acts. The three types are: charging deficiency in the amended complaint; jury instruction
error that mimicked the charging deficiency; and insufficiency of evidence.

Additional Factual and Procedural Background

The victim-on-victim rape and attempted rape counts as charged by the State in
the amended complaint were: Count 25 for rape of Holly G. for her coerced digital
penetration of Heather M.; Count 26 for rape of Heather M. for her coerced digital
penetration of Holly G.; Count 29 for rape of Holly G. for her coerced sexual intercourse
with Brad H.; Count 30 for rape of Brad H. for his coerced sexual intercourse with Holly
G.; Count 31 for rape of Holly G. for her coerced sexual intercourse with Jason B.; Count
32 for rape of Jason B. for his coerced sexual intercourse with Holly G.; Count 33 for
rape of Holly G. for her coerced sexual intercourse with Aaron S.; Count 34 for rape of
Aaron S. for his coerced sexual intercourse with Holly G.; Count 35 for attempted rape of
Aaron S. for his coerced attempted sexual intercourse with Heather M.; Count 36 for
attempted rape of Heather M. for her coerced attempted sexual intercourse with Aaron S.;
Count 37 for attempted rape of Jason B. for his coerced attempted sexual intercourse with
Heather M.; Count 38 for attempted rape of Heather M. for her coerced attempted sexual
intercourse with Jason B.; Count 39 for attempted rape of Brad H. for his coerced
attempted sexual intercourse with Heather M.; and Count 40 for attempted rape of
Heather M. for her coerced attempted sexual intercourse with Brad H. Count 41 for rape
212



of Holly G. based on her coerced digital penetration of herself will be addressed
separately below.

The language of each of the rape counts for victim-on-victim sex acts followed an
identical pattern, typified by the first among them, Count 25:

"[O]n or between the 14th day of December, 2000, A.D., and the 15th day of December,
2000, A.D., in the County of Sedgwick, State of Kansas, one REGINALD D. CARR
a/k/a REGGIE CARR and JONATHAN D. CARR a/k/a JONATHAN HARDING did
then and there unlawfully, cause H[olly] G. to commit an act of sexual intercourse by
digital penetration of the vagina of Heather [M.] while H[olly] G. did not consent to the
sexual intercourse when H[olly] G. was overcome by force or fear; . . . .

"Contrary to Kansas Statutes Annotated 21-3502(1)(a), Rape . . . ."

In other words, the amended complaint accused the defendants of causing one of
the five persons at the Birchwood home to engage in sexual intercourse with another of
the persons at the Birchwood home, when the person caused to engage in the act did not
consent and was overcome by force or fear.

The attempted rape counts contained the same causation language and allocated
the roles among the participants in the same way. But, instead of alleging sexual
intercourse, they alleged an overt act toward commission of sexual intercourse.

None of the victim-on-victim charges of rape or attempted rape stated that the
second Birchwood participant did not consent or was overcome by force or fear.

Before trial, R. Carr moved to dismiss the victim-on-victim charges for rape and
attempted rape, alleging that the complaint failed to allege criminal conduct under
213



Kansas' rape statute. According to R. Carr, Kansas' rape statute did not criminalize the act
of forcing two nonconsenting persons to engage in sexual intercourse. The district court
denied the motion, saying, "'[H]e who acts through another acts himself.'"

The trial evidence in support of each of the victim-on-victim rapes and attempted
rapes came from Holly G.'s description of the events at the Birchwood home. This
evidence did not differentiate between the defendants or parse their individual
contributions to the causation described in the amended complaint.

Each of the judge's instructions for the victim-on-victim sex crimes also followed
an identical pattern, typified by the first among them, Instruction No. 37, on which Holly
G. was the designated victim:

"Each defendant is charged in [Count 25] with the crime of Rape. Each defendant
pleads not guilty.

"To establish this charge against an individual defendant, the following elements
must be proved. Each must be proved beyond a reasonable doubt.

1. That the defendant caused H[olly]G. to commit an act of sexual
intercourse with Heather [M.];
2. That the act of sexual intercourse was committed without the consent of
H[olly]G. under circumstances where she was overcome by force or fear;
and . . . ."

Again, none of the instructions for the victim-on-victim sex crimes stated that the
second participant in the completed or attempted rape did not consent or was overcome
by force or fear. The person designated as the victim in each instruction was the person
caused to engage in the criminal act perpetrated upon his or her friend.

214



In addition, Instruction No. 8 informed the jury that:

"A person who, either before or during its commission, intentionally aids, abets,
advises, or counsels another to commit a crime with intent to promote or assist in its
commission is criminally responsible for the crime committed regardless of the extent of
the person's participation, if any, in the actual commission of the crime.

. . . .

"A person who, either before or during its commission, intentionally counsels,
procures or uses force or the threat of force to compel another to commit a crime is
responsible for the crime although the other who directly committed the act constituting
the crime lacked criminal or legal capacity."

The verdict forms for each of these crimes simply gave the jury the option of
choosing guilty or not guilty of the crime against the victim designated in the relevant
instruction.

The Standard of Review and the Controlling Statutes

Resolution of this issue requires us to interpret the rape, aggravated criminal
sodomy, attempt, and criminal liability statutes; and interpretation of a statute raises a
question of law subject to unlimited review on appeal. See State v. Johnson, 297 Kan.
210, 215, 301 P.3d 287 (2013).


In addition,

"'[i]t has long been the rule in Kansas that all crimes are established by legislative
act. There are no common law crimes in the state, and there can be no conviction except
for such crimes as are defined by statute. State v. Young, 55 Kan. 349, 356, 40 P. 659
(1895).'
215




"'It is also the rule in this state that a criminal statute will not be "extended by
courts to embrace acts or conduct not clearly included within its prohibitions." State v.
Doyen, 224 Kan. 482, 488, 580 P.2d 1351 (1978).'" State v. Stewart, 281 Kan. 594, 598,
133 P.3d 11 (2006) (quoting State v. Sexton, 232 Kan. 539, 542-43, 657 P.2d 43 [1983]).

K.S.A. 21-3502 sets out the elements of rape. Its subsection (a)(1)(A) defines the
crime as "[s]exual intercourse with a person who does not consent to the sexual
intercourse . . . [w]hen the victim is overcome by force or fear." K.S.A. 21-3501(1)
defines "sexual intercourse" as "any penetration of the female sex organ by a finger, the
male sex organ or any object. Any penetration, however slight, is sufficient to constitute
sexual intercourse."

An attempt, under K.S.A. 21-3301(a), is "any overt act toward the perpetration of
a crime done by a person who intends to commit such crime but fails in the perpetration
thereof or is prevented or intercepted in executing such crime."

K.S.A. 21-3205 provides:

"(1) A person is criminally responsible for a crime committed by another if such
person intentionally aids, abets, advises, hires, counsels or procures the other to commit
the crime.

. . . .

"(3) A person liable under this section may be charged with and convicted of the
crime although the person alleged to have directly committed the act constituting the
crime lacked criminal or legal capacity or has not been convicted or has been acquitted or
has been convicted of some other degree of the crime or of some other crime based on the
same act."

216



Charging Deficiency

Because defendants filed a pretrial motion to question whether these counts in the
amended complaint charged crimes under Kansas law, we apply the standard that
predates our opinion in State v. Hall, 246 Kan. 728, 764-65, 793 P.2d 737 (1990),
overruled on other grounds Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003)
(charging document challenge raised for first time on appeal must meet higher burden).
See State v. Reyna, 290 Kan. 666, 677, 234 P.3d 761 (2010). Under the pre-Hall
standard, "'[A] conviction based upon an information which does not sufficiently charge
the offense for which the accused is convicted is void.'" State v. Schultz, 252 Kan. 819,
835, 850 P.2d 818 (1993) (quoting State v. Bird, 238 Kan. 160, 166, 708 P.2d 946
[1985]). This issue presents a question of law over which this court's review is unlimited.
Reyna, 290 Kan. at 675.

In all of the counts challenged, the defendants were charged with "causing" the
victim of the rape or attempted rape to rape or attempt to rape another person. The State
identified the victim in each count by denoting the individual who did not consent to the
sexual intercourse and who had been overcome by force or fear. The individual counts
did not identify whether the other person involved did not consent or was overcome by
force or fear. The defendants did not personally, physically rape or attempt to rape
anyone under these counts. The coercion described in each count was exerted by the
defendants only on the victim.

We see several interrelated problems with these charges.

First, our rape statute does not make causing a rape to be committed a crime. This
is in contrast to other Kansas statutes, such as the one defining aggravated criminal
sodomy. See K.S.A. 21-3506(a)(3)(A) (crime includes "causing a person, without the
217



person's consent, to engage in sodomy with any person . . . [w]hen the victim is overcome
by force or fear). Here, each defendant was properly charged, tried, and convicted of two
counts of aggravated criminal sodomy for causing Holly G. to perform oral sex on
Heather M. and for causing Heather M. to perform oral sex on Holly G. The aggravated
criminal sodomy statute and the two counts borrowing from its language make clear that
the victim is the person unwillingly caused to engage in the sexual conduct by the
defendants. The rape statute does not.

Second, the State's eventual intermittent invocation of aiding and abetting theory
under K.S.A. 21-3205(1) does not cure the charging deficiency, because aiding and
abetting theory requires the existence of a principal. Aiding and abetting presupposes the
existence of more than one actor, the defendant and the principal he or she assists. See
United States v. Townsend, 924 F.2d 1385, 1394 (7th Cir. 1991). "'[T]o establish guilt on
the basis of aiding and abetting, the State is required to show that a defendant knowingly
associated with the unlawful venture and participated in such a way as to indicate that
[the defendant] was facilitating the success of the venture.'" State v. Robinson, 293 Kan.
1002, 1038, 270 P.3d 1183 (2012) (quoting State v. Baker, 287 Kan. 345, 366, 197 P.3d
421 [2008]). There was no principal for the defendants to have intentionally aided,
abetted, advised, hired, counseled or procured to commit the crimes under the language
of these charges. The only person aided, abetted, advised, hired, counseled, or procured
was the person each charge identified as the victim of the crime.

The State also has attempted to rely on innocent agent theory under K.S.A. 21-
3205(3). At first, it attempted to persuade us that the victim of each of these crimes also
qualified as the defendants' innocent agent who committed the crimes at their behest.
This theory is inconsistent with our precedent on innocent agency.

218



Our leading case on innocent agent theory is State v. Doyen, 224 Kan. 482, 580
P.2d 1351 (1978). In that case, we held that Ross Doyen, a candidate for reelection to the
Kansas Senate, could not be convicted of fraudulent campaign finance reporting after
withholding campaign contributions from his treasurer. 224 Kan. at 491. The State
charged Doyen with "causing false campaign finance reports to be filed" in violation of
K.S.A. 25-4129, which prohibited intentionally making any false material statement in a
campaign finance report. 224 Kan. at 484. The State also maintained that Doyen was
liable as an aider and an abettor or under an innocent agent theory.

We rejected each of the State's three arguments. First, the statutory definition of
the crime did not support criminal culpability for "causing" fraudulent reporting. 224
Kan. at 488. The theory of the case thus required impermissible judicial extension of the
conduct prohibited by the legislature. 224 Kan. at 488-89. Second, the State's aiding and
abetting theory of the case failed because the treasurer had acted in good faith and fully
and timely reported all contributions known to him. We explained: "The rule which
holds an aider and abettor liable is thus not applicable since, under the facts of this case,
there is no other person who committed a crime as the principal who was aided and
abetted by the defendant Doyen." 224 Kan. at 490. Finally, the State's innocent agent
theory failed because, as a candidate, Doyen was outside of the class of persons
contemplated by the statute and could not himself violate it. 224 Kan. at 490-91.

"[A]s a general rule, if a person causes a crime to be committed through the
instrumentality of an innocent agent, he is the principal in the crime and punishable
accordingly . . . . This general rule is applicable . . . only in factual situations where the
defendant could be found guilty as a principal if he committed the act himself." Doyen,
224 Kan. at 490.

219



Doyen could not be found guilty as a principal if he committed the act himself, because
the statute did not make him responsible for filing campaign finance reports. Only the
campaign treasurer had that responsibility. 224 Kan. at 488.

As in Doyen, the governing statute does not make causing rape, as charged here, a
crime. The purported principal, i.e., the person caused to commit rape or attempted rape,
could not be convicted of the crime because, like Doyen's campaign treasurer, he or she
did not possess even general criminal intent to commit the actus reus necessary for the
crime. See State v. Brown, 291 Kan. 646, 654, 244 P.3d 267 (2011) (mens rea for rape
general intent); see also People v. Hamlin, 170 Cal. App. 4th 1412, 1460, 89 Cal. Rptr. 3d
402 (2009) (duress can negate intent, capacity to commit crime). Neither R. Carr nor J.
Carr could be found guilty as a principal because, as with Doyen and the finance report
filings, they did not physically participate in the completed or attempted crime.

More recently, the State also has argued that the innocent agent in each of these
scenarios was the person upon whom the defendants caused the crimes to be perpetrated,
e.g., Heather M. in Count 25. Given the facts as ultimately testified to by Holly G., this
could have been properly charged under our rape statute, but it was not. See Kadish,
Complicity, Cause and Blame: A Study in the Interpretation of Doctrine, 73 Cal. L. Rev.
323 (1985) (discussing difficulty of charging certain crimes when agency of another
required). There is no question that the conduct the State attempted to punish
demonstrated depravity on the part of the two intruders. But the language in each of the
counts under examination stated only that the defendants compelled the victim to commit
an act; it said nothing about how the other participant or anticipated participant in the
actus reus, i.e., the sexual intercourse, came to be involved. The counts certainly did not
treat the other participant as an essential component of the crime, the agent without
whom the defendants committed no crime under Kansas law.

220



These charging weaknesses made certain problems of proof and jury instructions
nearly inevitable. But we need not reach those problems today because we hold that the
charging deficiencies deprived the district court of subject matter jurisdiction. This
renders R. Carr's convictions on Counts 25, 26, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39,
and 40 void.

Two final points bear mention.

The State is correct that the Kansas rape statute is gender-neutral on the identity of
the rapist and the person raped. It is legally possible for a female to rape a male. See State
v. Brooks, 46 Kan. App. 2d 601, 616, 265 P.3d 1175 (2011). But the definition of sexual
intercourse in K.S.A. 21-3501(1) incorporated by the rape statute is anatomically
specific; it makes the participation of a female indispensable, because it requires
penetration, however slight, of a woman's sex organ. Thus a male can only rape another
male with female participation—whether contributed by a willing criminal confederate
whom he aids and abets; a coerced participant, as here; or by one willing to participate in
the sex act but unaware of the defendant's nefarious behavior. The accused male can aid
and abet a female principal, or he can act as a principal by employing a female agent, but
he cannot accomplish the crime as defined by our legislature without her. Of course, a
male can also aid and abet a male principal, regardless of how the principal commits the
crime.

Count 41 of the amended complaint charged rape of Holly G. based on her digital
penetration of herself after J. Carr told her to "get [herself] wet." Count 41, despite
defense argument to the contrary, does not suffer from the same deficiencies as the
vacated victim-on-victim rape and attempted rape counts. First, it is distinct because no
second victim is involved. Also, again, it is possible under Kansas law for an accused
male to be criminally culpable as the principal in a rape of an unwilling female victim
221



overcome by force or fear, even though the accused has acted through an innocent agent
to accomplish penetration by the required finger, male sex organ, or object. As Count 41
charged, Holly G. was both the female victim whose sex organ was penetrated and the
innocent agent who achieved penetration for the principal, J. Carr; and R. Carr was J.
Carr's accomplice.

14. SUFFICIENCY OF EVIDENCE ON COUNT 41

In J. Carr's separate appeal, he has challenged the sufficiency of evidence to
support his conviction on Count 41. Because R. Carr also was convicted on Count 41 as
an aider and abettor, we notice this unassigned potential error in his appeal under K.S.A.
2013 Supp. 21-6619(b).

On a sufficiency claim we determine whether, viewing all of the evidence in the
light most favorable to the prosecution, we are convinced that a rational factfinder could
have found the defendant guilty beyond a reasonable doubt. See State v. McCaslin, 291
Kan. 697, 710, 245 P.3d 1030 (2011).

J. Carr's argument is that Holly G.'s testimony was inadequate to establish that he
"ordered her to commit an act of penetration, or that he even suggested it." In his view,
because other options were available to Holly G. to accomplish the end he desired, the
State did not prove rape beyond a reasonable doubt.

The Count 41 rape was charged under K.S.A. 21-3502(a)(1)(A), which defines
rape as "[s]exual intercourse with a person who does not consent" under circumstances
when "the victim is overcome by force or fear." K.S.A. 21-3501(1) defines "sexual
intercourse" as "any penetration of the female sex organ by a finger, the male sex organ
or any object."
222




As discussed in Section 13 of this opinion, the Kansas rape statute is gender-
neutral on the identity of the penetrating participant. The finger used for a digital rape
need not belong to a male. See K.S.A. 21-3502; State v. Wright, 290 Kan. 194, 224 P.3d
1159 (2010) (defendant convicted in digital rape case female). But the definition of
sexual intercourse under Kansas law requires the participation of a female so that the
necessary penetration of a female sex organ can occur. See K.S.A. 21-3501(1).

In addition, it is possible under Kansas law for an accused male to be criminally
culpable as the principal in a rape of an unwilling female victim overcome by force or
fear, even though the accused has acted through a—willing or unwilling, innocent or not-
so-innocent—agent to accomplish penetration by the required finger, male sex organ, or
object. See K.S.A. 21-3205(1); K.S.A. 21-3205(3).

On the facts of this case, according to the State, Holly G. was both the female
whose sex organ was penetrated and the innocent agent who achieved penetration for the
principal, J. Carr. The State asserts that its proof of all of the other rapes committed at the
Birchwood residence permitted the jury to draw a reasonable inference that J. Carr's
intent when he ordered Holly G. to "get [herself] wet" was for her to do exactly as she
did.

Although there may have been nonpenetration options available to Holly G. when
J. Carr issued his order to her, we agree with the State. Viewing the evidence in the light
most favorable to the prosecution, we conclude that a rational factfinder could have
convicted J. Carr as the principal and R. Carr as the aider and abettor on Count 41.
223




15. MULTIPLICITY OF COUNTS 41 AND 42

Neither R. Carr nor J. Carr raises an issue on appeal of whether their convictions
of rape on both Counts 41 and 42 in the amended complaint are multiplicitous. Under the
authority of K.S.A. 2013 Supp. 21-6619(b), we notice this unassigned error as to each
defendant—in this appeal for R. Carr as the aider and abettor and in J. Carr's separate
appeal as the principal.

As discussed in Section 14, the Count 41 rape charge was based on Holly G.'s
digital penetration of herself when J. Carr commanded that she "get [herself] wet." The
Count 42 rape charge was based on J. Carr's penile rape of Holly G. immediately after
she digitally penetrated herself.

When digital penetration is used to "assist" in accomplishing [the] ultimate goal of
penile penetration, they are not factually separate; they constitute unitary conduct. See
State v. Weber, 297 Kan. 805, 810-11, 304 P.3d 1262 (2013); State v. Colston, 290 Kan.
952, 964, 235 P.3d 1234 (2010). The digital penetration and penile penetration that form
the basis for Counts 41 and 42 will not support two convictions here, and thus Count 42
must be reversed. See State v. Scott, 286 Kan. 54, 68, 183 P.3d 801 (2008) (reversal of
multiplicitous conviction appropriate remedy).

16. ACCOMPLICE CULPABILITY FOR CODEFENDANT'S SEX CRIMES

R. Carr does not argue on appeal that the evidence was insufficient to convict him
as an aider and abettor of J. Carr's rapes and attempted rape of the two female Birchwood
victims. But J. Carr does raise an aider and abettor sufficiency claim in his separate
224



appeal, arguing that the State's evidence did not support his guilt beyond a reasonable
doubt for R. Carr's rape and aggravated criminal sodomy of Holly G.

Because the evidence underlying all of these sex crimes was substantially similar
in one respect—Holly G. did not testify that the codefendant aider and abettor had actual,
contemporaneous knowledge of the commission of the crime by the principal or that the
aider and abettor was present in the immediate vicinity of the principal and the victim
during the sex act—we notice this unassigned aider and abettor sufficiency claim for R.
Carr under the authority of K.S.A. 2013 Supp. 21-6619(b).

Additional Factual and Procedural Background

Counts 41 and 42 apparently charged rape of Holly G. by J. Carr, with R. Carr as
the aider and abettor. The conduct leading to these counts, according to Holly G.'s
testimony, occurred outside of Jason B.'s bedroom near the wet bar while the second
intruder was out of the home to take Brad H. to make ATM withdrawals. Count 43
apparently charged attempted rape of Heather M. by J. Carr, with R. Carr as aider and
abettor, during the same time window.

Holly G. was the third person taken out of the home to make ATM withdrawals.
At the time of her trip with the second intruder, whom she later identified as R. Carr, both
intruders had already actively participated in coercing the victims to perform sex acts
with each other while the intruders watched. During the ATM trip, the second intruder
asked Holly G. whether the first intruder had raped her during his absence from the
home. When she said yes, he asked her whether the rape had been her first sexual
experience with a black man and, particularly perversely, how she would rate its
comparative quality.

225



Soon after the second intruder finished his fourth trip to the ATM, he raped and
sodomized Holly G. in the dining room of the home. Count 44 apparently charged this
rape by R. Carr, with J. Carr as the aider and abettor. Count 45 charged aggravated
criminal sodomy of Holly G., apparently by R. Carr, with J. Carr as the aider and abettor.
These two crimes took place in the dining room of the home. Holly G. did not testify
about J. Carr's exact position in the home during the commission of these crimes.

The second intruder evidently was near Holly G. when she went to the bathroom
after he had raped and sodomized her. When Holly G. opened the door to the bathroom,
she witnessed the first intruder raping Heather M. and was ordered to shut the door. This
rape of Heather M. apparently was charged in Count 46, with R. Carr as the aider and
abettor. After J. Carr had finished with Heather M., he raped Holly G. in the bathroom as
well. This rape apparently was charged in Count 47.

Evidence in Support of Charges

Again, on a sufficiency claim we determine whether, viewing all of the evidence
in the light most favorable to the prosecution, we are convinced that a rational factfinder
could have found the defendant guilty beyond a reasonable doubt. See McCaslin, 291
Kan. at 710.

There was abundant evidence in this case to support the jury's conviction of R.
Carr as an aider and abettor of J. Carr on Counts 41, 42, 43, 46, and 47.

All of Holly G.'s testimony about what occurred during the intruders' time at the
Birchwood residence described their concerted, joint action and mutual encouragement.
Even when they were temporarily in different rooms of the home, and even when the
second intruder left the residence four times to take individual victims to make ATM
226



withdrawals, the two intruders encouraged and enabled one another in the commission of
all of the sex crimes.

The evidence of the second intruder's conversation with Holly G. during their
ATM trip is especially telling—strongly indicative of his approval of and willingness to
facilitate the first intruder's sexual violence. Knowing what the second intruder knew
when he returned to the home with Holly G., there is no evidence that he did anything to
discourage or disapprove of the first intruder. On the contrary, he eventually joined in by
raping and sodomizing Holly G. himself, implicitly endorsing the first intruder's similar
behavior. The second intruder also did nothing to intervene in Heather M.'s rape by the
first intruder, even though it is likely he became aware of it when Holly G. became aware
of it. Finally, there is no testimony that he uttered a word of protest when the first
intruder then raped Holly G.

It is simply not necessary that an aider and abettor be contemporaneously aware
that his or her principal is committing a crime that the aider and abettor has encouraged
or facilitated. It also is not necessary that an aider and abettor be in the immediate
vicinity of the principal and the victim during commission of the crime. See K.S.A. 21-
3205; State v. Wilson, 221 Kan. 359, 366, 559 P.2d 374 (1977) (driver of get-away
vehicle intentionally aids, abets in commission of crime, may be charged with, convicted
of crime despite not participating at scene); State v. Dunn, 243 Kan. 414, 430, 758 P.2d
718 (1988) (same).

R. Carr is not entitled to reversal of his convictions on Counts 41, 42, 43, 46, and
47 for insufficiency of the evidence. His conviction on Count 42 must be reversed as
multiplicitous with his conviction on Count 41, as fully discussed in Section 15 of this
opinion.

227



17. SUBJECT MATTER JURISDICTION ON ATTEMPTED RAPE

R. Carr challenges his conviction on Count 43 of the amended complaint, an
attempted rape of Heather M., arguing that this count did not name him as a perpetrator
and thus failed to confer subject matter jurisdiction on the district court.

The State argues that, if a jurisdictional defect existed in the complaint, it was one
of personal rather than subject matter jurisdiction and that R. Carr's failure to challenge
the defect in a pretrial motion waived any claim of error. The State bases its argument on
a reading of the complaint as a whole, observing that the caption of the amended
complaint contained R. Carr's name, and that, unlike the three counts charging criminal
possession of a firearm against R. Carr, which do not contain J. Carr's name at all, Count
43 does contain R. Carr's name in its text.

Additional Factual and Procedural Background

Of the 58 counts in the amended complaint, 54 allege that both R. Carr and J. Carr
committed the subject crime. Of the remaining four counts, three are the charges against
R. Carr alone on criminal possession of a firearm. The remaining count, Count 43, reads:

"[A]nd on or between the 14th day of December, 2000, A.D., and the 15th day of
December, 2000, A.D., in the County of Sedgwick, State of Kansas, one JONATHAN D.
CARR a/k/a JONATHAN HARDING did then and there unlawfully, towards the
perpetration of the crime of Rape, as defined by K.S.A. 21-3502, commit the following
overt act, to wit: attempt to cause Heather [M.] to engage in an act of sexual intercourse
with REGINALD D. CARR a/k/a REGGIE CARR and JONATHAN D. CARR a/k/a
JONATHAN HARDING while Heather [M.] did not consent to said sexual intercourse
while Heather [M.] was overcome by force or fear, with the intention to commit said
crime;
. . . .
228



Contrary to Kansas Statutes Annotated 21-3301 and 21-3502(1)(a), Attempted Rape,
Severity Level 3, Person Felony, Count Forty-Three"

In contrast, all other charges stemming from the Birchwood crimes begin with the
words: "[A]nd on or between the 14th day . . . , one REGINALD D. CARR a/k/a
REGGIE CARR and JONATHAN D. CARR a/k/a JONATHAN HARDING did then and
there unlawfully . . . ."

The jury instruction on the amended complaint's Count 43 said that "each
defendant" was charged with the attempted rape of Heather M., i.e., it did not contain the
same error alleged in the complaint. And the jury found R. Carr guilty.

It is apparent that the State intended to charge both defendants for each crime in
the amended complaint, one on the theory that he was the principal and one on the theory
that he was the aider and abettor, with the exception of the three counts for criminal
possession of a firearm. The original complaint charged only R. Carr with aggravated
criminal sodomy of Holly G. and only J. Carr with rape of Holly G. In contrast, Counts
42 and 44 of the amended complaint each charge both defendants with rape of Holly G.
Count 45 of the amended complaint charges both defendants with aggravated criminal
sodomy.

The jury was instructed that a person who "intentionally aids, abets, advises, or
counsels another to commit a crime" is criminally responsible for those crimes, as well as
any other crime that "was reasonably foreseeable." R. Carr's appellate challenges to this
instruction are discussed in Section 25 of this opinion.

229



Personal or Subject Matter Jurisdiction

A jurisdictional issue raises a question of law over which we exercise unlimited
review. See State v. Alonzo, 296 Kan. 1052, 1054, 297 P.3d 300 (2013).

Jurisdiction is typically divided into two separate components—personal and
subject matter. State v. Bickford, 234 Kan. 507, 508, 672 P.2d 607 (1983). A court must
be vested with both types of jurisdiction in order to act. 234 Kan. at 508-09. Personal
jurisdiction requires that a "party must appear generally or submit to the jurisdiction of
the court" and subject matter jurisdiction authorizes the court to hear and determine a
case. 234 Kan. at 509.

Generally, an accused who pleads to the merits of the action "waives all objections
with respect to the court's jurisdiction of his person." State v. Wharton, 194 Kan. 694,
696, 401 P.2d 906 (1965) (citing 22 C.J.S., Criminal Law § 162, p. 421; 4 Wharton's
Criminal Law and Procedure, § 1890, p. 759 [1957]). The State contends this is exactly
what R. Carr did here. In contrast, the issue of subject matter jurisdiction may be raised at
any point by any party, even the court. State v. Patton, 287 Kan. 200, 205, 195 P.2d 753
(2008).

The State is incorrect on whether Kansas treats this type of alleged defect as a
matter of personal or subject matter jurisdiction. If the omission here truly qualifies as an
omission of R. Carr's name from the charge, we believe there is a subject matter
jurisdiction problem. See State v. Breedlove, 285 Kan. 1006, 1013, 179 P.3d 1115 (2008)
(citing State v. Johnson, 283 Kan. 649, 656, 156 P.3d 596 [2007] [court without
jurisdiction when jury instructed on crime not originally charged, nor lesser included of
crime originally charged]; State v. Elliott, 281 Kan. 583, Syl. ¶ ¶ 1, 2, 133 P.3d 1253
[2006] [municipal courts without subject matter jurisdiction over felony driving under the
230



influence]; State v. Belcher, 269 Kan. 2, 8-9, 4 P.3d 1137 [2000] [court without
jurisdiction; crime of conviction not lesser included offense of charged crime]); see also
State v. Chatmon, 234 Kan. 197, 205, 671 P.2d 531 (1983) (battery conviction clear
violation of due process when neither charged in information nor lesser included offense
of charged rape), abrogation on other grounds recognized by State v. Everett, 296 Kan.
1039, 1045, 297 P.3d 292 (2013).

Application of State v. Hall

This court has recognized that "the fundamental purpose of the pleading is to
inform the defendant of the charge so that the defendant may prepare a defense." State v.
Hall, 246 Kan. 728, 754, 793 P.2d 737 (1990), overruled on other grounds by Ferguson
v. State, 276 Kan. 428, 78 P.3d 40 (2003).

In Hall, the defendant asserted for the first time on appeal that his conviction on a
particular charge was void for lack of subject matter jurisdiction because of omission of
an essential element of the crime in the charging document. This court recognized the
error and reversed the conviction based on existing precedent. 246 Kan. at 746-47. But, at
the conclusion of the opinion, we enunciated a new rule to be applied in future cases
when a defendant complained of a defective charging document for the first time on
appeal. 246 Kan. at 765. We said: "Common sense will be a better guide than arbitrary
and artificial rules. The sufficiency of an information should be determined on the basis
of practical rather than technical considerations when addressed for the first time on
appeal." 246 Kan. at 754 (citing State v. Wade, 244 Kan. 136, 141, 766 P.2d 811 [1989];
State v. Micheaux, 242 Kan. 192, 199, 747 P.2d 784 [1987]; 1 Wright, Federal Practice
and Procedure: Crim.2d § 125 p. 385 [1982]).

231



Since Hall, the proper procedure for a defendant to challenge a defect in the
complaint, information, or indictment is to file a motion to arrest judgment under K.S.A.
22-3502. Hall, 246 Kan. at 760. The motion, to be filed within 14 days of the verdict,
asks the district court to "arrest judgment if the complaint, information or indictment does
not charge a crime or if the court was without jurisdiction of the crime charged." K.S.A.
22-3502.

When such a motion "is timely filed, the trial court, in reviewing the motion, shall
test its merit by utilizing the rationale of our pre-Hall cases." Hall, 246 Kan. at 764. The
same is not true when a charging document's ability to confer subject matter jurisdiction
is challenged for the first time on appeal. Then

"we shall look to whether the claimed defect in the information has: (a) prejudiced the
defendant in the preparation of his or her defense; (b) impaired in any way defendant's
ability to plead the conviction in any subsequent prosecution; or (c) limited in any way
defendant's substantial rights to a fair trial under the guarantees of the Sixth Amendment
to the United States Constitution and the Kansas Constitution Bill of Rights, § 10. If a
defendant is able to establish a claim under either (a), (b), or (c), the defective
information claim, raised for the first time on appeal, will be allowed." 246 Kan. at 765.

In addition,

"[t]ardily challenged informations are to be construed liberally in favor of validity. The
validity of an information is to be tested by reading the information as a whole. The
elements of the offense may be gleaned from the information as a whole. An information
not challenged before verdict or finding of guilty or pursuant to K.S.A. 22-3502 by a
motion for arrest of judgment will be upheld unless it is so defective that it does not, by
any reasonable construction, charge an offense for which the defendant is convicted." 246
Kan. at 764 (citing United States v. Watkins, 709 F.2d 475, 478 [7th Cir. 1983]).

232



The omission of R. Carr's name in the first part of the text of Count 43 is akin to a
technical defect. He has not argued or demonstrated that he was misled by the wording
error; that his defense would have been any different, had the error not occurred; or that
he suffered any other undue prejudice. His failure to file a motion for arrest of judgment
within 14 days of the verdict is fatal to this claim on appeal.

18. THIRD-PARTY EVIDENCE AND HEARSAY EXCEPTIONS

R. Carr asserts that Judge Clark misapplied Kansas third-party evidence rule and
erred by rejecting appropriate hearsay exceptions, making it impossible for him to testify
on his own behalf about three telephone calls he received from J. Carr during the night of
the Birchwood crimes and about face-to-face interaction with J. Carr and another black
male in possession of Jason B.'s truck and other stolen property. See Rock v. Arkansas,
483 U.S. 44, 52, 107 S. Ct. 2704, 97 L. Ed 2d 37 (1987) (discussing federal constitutional
underpinnings of right to testify in one's own defense, relying on Fifth, Sixth, Fourteenth
Amendments); Kan. Const. Bill of Rights, § 18 (right to remedy for injuries by due
course of law). These errors by Judge Clark, R. Carr argues, also interfered with his due
process right to present his theory of defense. See Rock, 483 U.S. 44; Crane v. Kentucky,
476 U.S. 683, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986); Chambers v. Mississippi, 410
U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973).

Additional Factual and Procedural Background

Review of the merits of this issue requires a fairly detailed examination of
pertinent events at several stages of the district court proceedings to discern the bases of
the parties' positions and Judge Clark's decisions.

233



R. Carr's planned defense on the Birchwood incident was that all of the crimes
were committed by J. Carr and an unknown and uncharged black male.

Nearly 6 months before trial began, R. Carr filed a sealed supplement to a
memorandum in support of a motion to sever the defendants' trials. The supplement was
not provided to the State. Appellate counsel now describes its contents as a written
proffer of R. Carr's anticipated trial testimony. For ease of reference, we set out the
pertinent part of the supplement here:

"2. On the evening of December 14, 2000, Reginald Dexter Carr, Jr. and his
brother, Jonathan Carr, met at the home of Tronda Adams and Toni Green. Reginald and
Jonathan were both traveling in a beige Toyota Camry belonging to Stephanie [Donley].

"3. After leaving the Green residence together, Reginald Dexter Carr, Jr. and
Jonathan Carr traveled to the apartment complex located at 5400 E. 21st Street in
Wichita, Sedgwick County, Kansas. Upon their arrival, Jonathan Carr dropped off
Reginald Dexter Carr, Jr. and left in the beige Toyota. Reginald Dexter Carr, Jr., not
wanting to alert Stephanie [Donley] that he had loaned her car to his brother, left in his
(Reginald's) white Plymouth Fury. After leaving the apartment complex, Mr. Reginald
Dexter Carr, Jr. traveled around the northern part of Wichita, Sedgwick County, Kansas,
and attempted to sell drugs.

"4. Mr. Jonathan Carr met another individual whose name is not now known to
the defendant, Reginald Dexter Carr, Jr. Mr. Jonathan Carr and the other unknown
individual went to 12727 East Birchwood and committed the crimes more fully set out in
the [a]mended [c]omplaint . . . .

"5. Sometime after the commission of the crimes associated with the []
Birchwood address, Jonathan Carr located his brother, Reginald Dexter Carr, Jr. and
made arrangements for Reginald Dexter Carr, Jr. to store the property taken from the
Birchwood address in Stephanie [Donley's] apartment . . . .

234



"Prior to the commission of the crimes at the Birchwood address, Reginald Dexter
Carr, Jr. had no knowledge of the facts that were about to unfold, nor did he
participate in any preparation or plan to effect the same.

"6. After receiving information from his brother, Jonathan Carr, as to the
approximate location of the origin of the property, Reginald Dexter Carr, Jr. drove by the
area of 12727 E. Birchwood. Mr. Reginald Dexter Carr, Jr. was detained briefly and
questioned by law enforcement officers on 127th Street East.

"7. Later that morning, December 15, 2000, Mr. Reginald Dexter Carr, Jr. was
arrested at [Donley's apartment,] after unloading the stolen property from the Dodge
Dakota pickup truck owned by Jason [B.]."

A few weeks before trial was to begin, the State filed two in limine motions. One
sought to prevent introduction of out-of-court statements made by any defendant who had
not waived his right against self-incrimination and testified at trial. The other motion
sought to prevent defendants from introducing "circumstantial evidence" that someone
other than they had committed the charged crimes. The State quoted language from State
v. Bornholdt, 261 Kan. 644, 666, 932 P.2d 964 (1997), disapproved on other grounds by
State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004): "[W]hen the [S]tate relies on direct
evidence, circumstantial evidence that someone other than the defendant committed the
crime charged is irrelevant in the absence of other evidence to connect such third party
with the crime."

R. Carr filed a written response but made an argument only on the third-party
evidence motion, which he challenged as premature. He also argued that the motion
failed to set forth a factual basis, giving it the appearance of a "discovery device."

J. Carr filed more lengthy responses to both motions. His response to the hearsay
motion argued that the State's nonspecific request to exclude hearsay was overly broad
235



and premature. On the third-party evidence motion, he also argued that the motion was
premature and too vague to allow Judge Clark to "intelligently rule." The State must
specify, he said, the evidence it wanted to exclude. J. Carr also argued that there was no
difference between the probative value of direct evidence and the probative value of
circumstantial evidence and that the third-party evidence rule, as outlined by the State,
would deprive him of his right to present a defense. He suggested that the proper standard
for admission of third-party evidence should be whether the evidence raised an inference
capable of leading a jury to conclude there was reasonable doubt on the defendant's guilt.

At the hearing on the two motions, the State said its hearsay motion had been filed
because of statements at earlier court proceedings about the possibility of alibi defenses.
The prosecutor said that the State was not seeking to exclude any out-of-court statements
by a nontestifying defendant that would fall within an exception to the rule that hearsay is
inadmissible; rather, the State wanted to raise the issue early to ensure that such
information was not heard by the jury before Judge Clark had an opportunity to rule on
the applicability of any exception.

On the third-party evidence motion, the State again asserted, citing to Bornholdt,
that the Kansas rule prohibited a criminal defendant from introducing circumstantial
evidence of a third person's guilt when the State's case would include direct evidence
against the defendant:

"Direct must be countered with direct . . . .

"[T]he direct evidence that the State is looking at in filing this motion is eyewitness direct
testimony which must be countered by similar direct in order to disprove identification as
opposed to circumstantial evidence that some other person did this crime. It is commonly
called outside the courtroom . . . the SODDI defense, some other dude did it."

236



The prosecutor also clarified that the State sought to eliminate circumstantial evidence of
another perpetrator's guilt only on the crimes charged as a result of the Birchwood
incident, not on the charges arising out of the Schreiber or Walenta incidents.

Counsel for J. Carr responded by acknowledging the Bornholdt language cited by
the State and said that, if he were to introduce evidence of a third party's culpability, he
knew he would have to establish a link between the third party and the crimes
beforehand. Counsel for R. Carr said he had nothing to add to the argument.

Judge Clark's brief ruling contained the word "sustained" but was otherwise
difficult to decipher:

"Everybody agrees then on Bornhol[d]t that direct and circumstantial type evidence and
then the incidents that occurred on the 7th and 11th, any evidence concerning that would
be circumstantial. So, I'll sustain it then and just say that if any evidence like that is
anticipated, please bring it to somebody's attention so we can handle it properly."

The State drafted the written order memorializing the court's rulings on the
motions. Although there are references to the "orders" in transcripts of later hearings, we
have found no order on the hearsay motion in the record and the parties have not cited to
one. The essential portion of the order on the third-party evidence motion simply
indicated the motion was sustained. The order had no other substantive content.

The subject of third-party evidence did not come up again until the opening
statement of R. Carr's counsel at trial. He told the jury that the evidence on the
Birchwood crimes would show that four "Negroid hairs" were recovered and submitted
for mitochondrial DNA testing, that one ultimately was not tested, that two showed
contributors with the defendants' maternal lineage, and that the fourth came "from an as
237



yet unidentified black person." He also told the jury that R. Carr and J. Carr parted during
the evening of December 14, 2000, and did not see each other again until about 5 a.m. the
next morning, when J. Carr contacted R. Carr and asked that he come to Adams' house.
When R. Carr arrived, he saw J. Carr and another black male, who was in possession of a
truck filled with stolen property. The three decided that the truck would be driven to
Donley's apartment by the other black male; that R. Carr would return Donley's car,
which J. Carr had, to Donley's apartment, and that R. Carr would leave his old Plymouth
for J. Carr.

Counsel for J. Carr objected to these statements by counsel for R. Carr as
argumentative and unsupported by evidence. Judge Clark overruled the objection.

Counsel for R. Carr resumed his opening statement:

"He left—Reginald left his car with Jonathan, the third black male drove the truck. When
they got to the apartment complex the third black male did not assist in carrying any of
the stolen property into Ms. Donley's apartment, it was decided that person would pick up
his share later."

Counsel then turned to a description of R. Carr's arrest and subsequent attempts by
law enforcement to have the victims of the various crimes identify him. Counsel
concluded his opening statement, however, by returning to the subject of the Birchwood
crimes.

"The evidence will show that the Birchwood address is replete with Jonathan Carr's
DNA. The evidence will also show that there is the DNA of an unidentified third party
there. The evidence will also show that the Lorcin automatic weapon that you heard talk
about contains the DNA of three unidentified people, none of that DNA is Reginald
Carr's.

238



"Ultimately, the DNA evidence will show that Jonathan Carr, not Reginald Carr,
Jonathan Carr committed most, if not all of the crimes which are alleged in the complaint
and that he did it with a third black male who still walks the streets of Wichita."

At that point, the prosecution objected to the comments, and the judge sustained
the objection, labeling the remarks "improper."

After opening statements were completed and testimony taken from three
witnesses, the jury was excused from the courtroom for lunch. The State then asked the
judge to impose sanctions on the lawyer for R. Carr who had made the opening
statement, John Val Wachtel, and sought an instruction to the jury to disregard Wachtel's
remarks about another perpetrator. The State argued that Wachtel had deliberately
violated the judge's order on the motions in limine, both by suggesting that J. Carr had
made statements to R. Carr about the Birchwood crimes and by suggesting that a third
black male was involved.

"Unless counsel intends to call some individual that he failed to name in his
opening statement, some third individual that has confessed to this crime or made some
other statements directly to Reginald Carr, that individual would fall in the category—or
those statements would fall into the category of circumstantial evidence, unless based,
again, on statements made by Jonathan Carr, which are not admissible, nor appropriate.
The Court ruled on this."

The prosecutor also said that she had spoken with counsel for both defendants that
morning before the opening of court and that she believed each understood the opening
statement material that was off limits under the court's orders in limine.

"When I made those comments to [Wachtel] I told him that in addition to objecting, if
there's a violation of the Court's orders in limine, that that would certainly place us in a
situation which might necessitate a mistrial and that he certainly would not want to do
that. He indicated he would not be mistrying anything."
239




Cocounsel for R. Carr responded to the prosecution's argument about Wachtel:

"Well, first of all, let's talk about the hearsay evidence when we're talking about
statements of Jonathan Carr. If I remember correctly, it was [the State] that initially
started talking about conversations between Tronda Adams and Jonathan Carr. And I
don't think Mr. Wacht[e]l ever talked about conversations between Jonathan Carr and
Reginald Carr. I think the record's clear and I think the Court can examine it.

"As to the order in limine, when we had that hearing I believe it was all—we all
understood that if there was evidence of—direct evidence of the defendants' guilt and
circumstantial evidence that someone else did it and we had evidence of that, unless we
could connect it up, it wasn't admissible.

"I think at this point in time, number one, it is premature; number two, I don't
think the State has any direct evidence that Reginald Carr committed this crime. They
don't have an in-court identification of the surviving victim. And we're only talking about
the events on the 14th and 15th. They've got a photo array where she goes well, it looks
like the guy. They don't have any DNA evidence that connects him up with this thing,
all's they have is property that he has after the fact.

"On the other hand, the evidence that we've got that somebody else is involved in
it is we've got DNA evidence in this apartment that nobody can identify, we've got a
black Negroid hair that belongs neither to Jonathan Carr nor Reginald Carr. You know,
my way of looking at it we've got more direct evidence that Reginald Carr didn't commit
this crime than we do direct evidence that he did.

". . . I don't think Mr. Wacht[e]l has violated any order in limine, we have
followed the law as we know it to be. And he hasn't done anything wrong. If the court
finds at some later point in time that the evidence doesn't support what he said in this
opening statement, then perhaps that's a different story. But as this Court well knows
from sitting on many, many cases, we present this evidence as best we possibly can and
we expect it to produce what Mr. Wacht[e]l has said."
240




At that point, Judge Clark turned to counsel for J. Carr. J. Carr's counsel noted that
the prosecutor alluded to the possibility of a mistrial and then moved for one. He said:

"And Your Honor, I think that Mr. Wacht[e]l's opening statements illustrate an argument
that we've made many times early on in this case as to why we needed to be severed from
this matter and have a separate trial from Reginald Carr. So if a mistrial were not granted,
we again move to sever, withdraw from these proceedings to have our own separate
trial."

One of the prosecutors clarified that the State was not seeking a mistrial; instead,
she said, it sought enforcement of Judge Clark's earlier orders in limine. She argued
further:

"This Birchwood case is a direct evidence case. [Holly G.] did identify Mr. Reginald Carr
in a photo ID lineup, array. In addition to that, there's DNA evidence that connect[s] Mr.
Carr, Reginald Carr. The blood of [Heather M.] is on the clothing collected.

"Now, that may—could be argued as direct or circumstantial. In any event, the evidence
certainly is strong in support of the ID that [Holly G.] made in the photo lineup."

Judge Clark then spoke:

"First of all, the motion for mistrial on behalf of Mr. Jonathan Carr is overruled. The last
statement [about the uncharged black male on the streets of Wichita], I believe I said
that's misconduct. So stated. And as I understand evidence, lawyers don't get up and
make declarations concerning evidence in opening statements that they don't have. If that
declaration made about this some other party isn't supported in evidence, the inference
that it's intentional misconduct would be well supported.

241



"And what we'll do is examine the evidence and see what the evidence is and I'll
instruct on what that means to the jury one way or the other."

On the 10th day of trial, the State's expert on the results of mitochondrial DNA
tests on the four hairs testified. One of the hairs yielded no results, perhaps, according to
the expert, because it came from an animal or was too old and degraded. Two matched
the mitochondrial DNA samples taken from the defendants. One did not match those
samples and, the expert said, contained more of a Caucasian or European profile.

At the end of that day, after the jury had been excused, Judge Clark took up
several miscellaneous matters. Among other things, he again addressed the third-party
evidence rule:

"Now, as to the law that if it be shown that a perpetrator at a crime is at the scene
of the crime by direct evidence, then the circumstantial evidence may not be used to
support the inference of a third party was there absent direct evidence of that fact. That's
the law. That will be the law of this case."

After a brief interruption for the jury to pass through the courtroom, the judge
continued:

"I think we've reached a point that I can advise you all because we're getting
close to the defense case in chief, so I think I've heard all the evidence that I need to, to
make that decision.

"And looking at—in the order of proof, and let's call it the 12727 Birchwood, H.
G. puts both defendants present as perpetrators at that crime. Therefore, before any
evidence to support the inference that a third party was there can be accepted, there must
be direct evidence that a third party was there."

No further argument or comments were made on the topic at that time.
242




Three trial days later, the State presented the testimony of the Wichita Police
Department chemist who had been asked to separate Negroid hairs from other hairs and
fibers from the Birchwood home for DNA testing. She had labeled three of the hairs
Negroid and the fourth "possibly" so.

The next day, a nuclear DNA analyst for Sedgwick County testified that he had
examined a root attached to one of the two hairs for which the defendants and their
maternal relatives could not be ruled out and that he had determined it did not come from
R. Carr. J. Carr could not be excluded.

Later in the trial, during R. Carr's case-in-chief, his counsel advised Judge Clark
outside the presence of the jury that R. Carr was weighing whether to testify. Counsel
made an oral proffer to facilitate the judge's ruling on whether R. Carr's testimony would
be admissible under the hearsay rule and its exceptions.

Counsel said that R. Carr would testify that he and J. Carr were together in the
early evening of December 14 at Adams' house, that they parted ways, and that J. Carr
then spent his time with the unknown, uncharged black male. Later that night and early
on December 15, J. Carr called R. Carr three times. Counsel described those calls and
related events and made a brief argument:

"Later on that night sometime—the time is unclear, but after 11:00 o'clock,
Reginald Carr got a telephone call from Jonathan telling him that he needed to come to a
location, and that Jonathan Carr said this dude—or this nigger is trippin' and talked about
shooting people. Mr. Carr was distraught and emotional when he made those statements.

"Mr. Carr received another phone call from Jonathan, at which time Jonathan
told him that this third person was—Jonathan was at or near [Adams'] house. Jonathan
243



called and told him with regard to the third person that the person was down the street,
flipped out, trippin['.] Jonathan was crying. Reginald asked about dealing with this
person. Jonathan said the person had a gun. Reginald came to that location, spoke with
the third person, and decisions were made with regard to what would be dealt with [on]
that property. The decision was that the property would be taken to [Donley's] house,
[Donley's] apartment.

"Also, there was another phone call in which Jonathan was distraught, talked
about that same third person as, quote, trippin', unquote, and that he had shot people. And
that—warned Mr. Reginald Carr that the evidence was—that the material at Mr. Carr's
house was not only stolen, but that people had been killed and that Jonathan was leaving
town.

"Those hearsay statements on behalf of Jonathan Carr and on behalf of the third
party, we think are admissible in this case. Excited utterances.

"The—forgive me, your Honor, I don't remember the name of the rule as I stand
here right now, but there's a rule that basically says no such statements about that kind of
activity would not be made if they were not true [sic]. And the, statements with regard to
the third person, identifying person of the res gestae of the possession of stolen property,
are statements against interest. A simple rule on the earlier one.

"That is my proffer of what that hearsay testimony would be."

Counsel for J. Carr had no objection to the admission of the proffered testimony,
although it included out-of-court statements made by his client. He said that he would
look forward to cross-examining R. Carr and that the content of the proffer strengthened
his argument that the defendants had antagonistic defenses.

The prosecution did object to admission of the testimony, arguing it was "violative
of the hearsay principles" and "inappropriate and improper" and "pure hearsay." In
addition, the prosecutor argued:
244




"[T]he Court has made it abundantly clear that he doesn't get to do this on his 'some other
dude did it' kind of defense when they're direct cases. And this is inappropriate. And I
still don't have a name of anybody that I can go to, and apparently it's in the possession of
Mr. Wacht[e]l and his client."

After clarifying for the State that R. Carr did not know the name of the third party,
counsel for R. Carr was asked to repeat the part of the proffer dealing with a phone call
from J. Carr when he was near Adams' house. Counsel did so, saying:

"There was a telephone call. I do not know the time. It was after 11:00 o'clock. It was
from Jonathan to Reginald talking about this third person trippin', shooting people,
problems that were going on, gave directions to the residence. There was another phone
call which invited Jonathan—Reginald to Tronda's house. Reginald went there. There
was another conversation about the fellow down the street flipped out, trippin'. Jonathan
was crying. Reginald went down and spoke to that person. There was another phone call
later on after the third party had driven the truck to Reginald's house. At that time there
were more discussions about people having been shot with respect to the stolen property.
That was Jonathan that called Mr. Carr. And that's the proffer."

One of the prosecutors asked a clarifying question—whether R. Carr spoke
personally to the other unknown black male—and was apparently satisfied that she
received an answer. The other prosecutor then argued that R. Carr wanted to admit
"hearsay evidence which the Court has clearly said is unexceptional" as to J. Carr. She
also repeated that admission of the testimony would result in a

"direct violation of the Court's ruling under what we refer to as the SODDI defense, some
other dude did it, or suggestion thereof . . . . [T]here is no direct evidence here unless
Reginald Carr is saying that he was there and watched it as an eyewitness or something
more direct. There would be no direct evidence under the proffer that's made that should
allow them to make this suggestion about another person. Not only to make a suggestion
about another person, but introduce hearsay evidence of an individual who's not
245



identified and [whom the defense is] refusing to identify, not only by name, but even by
saying where they went down the street to speak to them. It's highly inappropriate.
They've not identified any particular exception that [it] would clearly fall under because it
doesn't."

Judge Clark offered counsel for R. Carr an opportunity to cite law in support of
admission of the proffered evidence, and counsel said again that hearsay exceptions for
declarations against interest and excited utterances should apply. The judge then ruled
from the bench:

"The declarations proffered under Mr. Reginald Carr's proffer just now fits no exception
to the hearsay rule that I know of. They are not direct evidence of any participation by a
third party. And based on everything I know right now, they're not admissible in
evidence. They're offered to prove the truth of the matter stated therein. They're hearsay."

R. Carr did not testify at trial.

Third-Party Evidence Rule

The parties agree that the appellate standard of review for a district judge's ruling
on a motion in limine invoking the third-party evidence rule is abuse of discretion. See
State v. Brown, 285 Kan. 261, 303, 173 P.3d 612 (2007) (application of third-party
evidence rule subject to review for abuse of discretion); see also State v. Shadden, 290
Kan. 803, 817, 235 P.3d 436 (2010) (standard of review on evidentiary decision depends
on rule, principle applied by district judge). When a district judge exercises his or her
discretion based on an error or misunderstanding of law, there is an abuse of that
discretion. See Brown, 285 Kan. at 294.

246



The only third-party evidence case cited by the State before Judge Clark was State
v. Bornholdt, 261 Kan. 644, 932 P.2d 964 (1997), disapproved by State v. Marsh, 278
Kan. 520, 102 P.3d 445(2004). The State was correct that Bornholdt parroted certain
earlier cases saying "[w]hen the [S]tate relies on direct evidence, circumstantial evidence
that someone other than the defendant committed the crime charged is irrelevant in the
absence of other evidence to connect such third party with the crime." 261 Kan. at 666.
But the State and Judge Clark failed to realize that Bornholdt's treatment of the subject
was superficial; it did not explore the rule's origins or examine the soundness of its
rationale.

The more recent and authoritative opinion at the time of trial of this case was State
v. Hooker, 271 Kan. 52, 63, 21 P.3d 964 (2001), which stated a more complete, more
nuanced third-party evidence rule and began to expose a recent tendency in some earlier
caselaw to conflate uncorroborated evidence that someone else merely had a motive to
commit the crime with circumstantial evidence that someone else actually did commit the
crime.

Hooker involved a home invasion in which one of the victims identified Hooker as
one of two men who forced their way into a townhome and shot one of the residents in an
apparent robbery attempt. Hooker sought to introduce evidence that two other people had
threatened to harm the deceased victim. This court held that Hooker failed to provide
evidence to connect the two other persons with the victim's death.

In it, this court said:

"We have found that when the State's case relies heavily on circumstantial evidence, it is
error to exclude circumstantial evidence that someone else committed the crime when the
defendant's proffered evidence includes the timely placement of another person at the
247



murder scene. See State v. Hamons, 248 Kan. 51, Syl. ¶ 2, 60-61, 805 P.2d 6 (1991)
(finding an abuse of discretion to exclude evidence that another person had threatened the
victim and was at the scene of the murder near the time of the murder where there was no
eyewitness identification, but concluding that the error was harmless).

"Conversely, we have been stricter on admission when the State relies on direct
evidence, such as eyewitness identification. Circumstantial evidence that someone other
than the defendant committed the crime is irrelevant in the absence of other evidence to
connect that other person with the crime charged. State v. Bornholdt, 261 Kan. 644, Syl. ¶
19, 932 P.2d 964 (1997). We have found no abuse of discretion in excluding such
evidence in cases involving eyewitness identification testimony. E.g., State v. Brown, 230
Kan. 499, 500, 638 P.2d 912 (1982); State v. Henderson, 205 Kan. 231, 239-40, 468 P.2d
136 (1970); State v. Potts, 205 Kan. 42, 44, 468 P.2d 74 (1970).

"Hooker failed to show that the two people who allegedly made threats were
involved in [the victim's] death. We have said:

"'There is a general rule supported by numerous decisions that evidence
of the motive of one other than the defendant to commit the crime will be
excluded where there is no other proof in the case which tends to connect
such other person with the offense with which the defendant is charged.
[Citations omitted.]' State v. Neff, 169 Kan. 116, 123, 218 P.2d 248, cert.
denied 340 U.S. 866 (1950)." Hooker, 271 Kan. at 65-66.

Within 2 years after trial of this case, we recognized and reasserted the lessons of
Hooker in State v. Evans, 275 Kan. 95, 62 P.3d 220 (2003).

The facts in Evans were analogous to the facts here in many ways. Defendant
Larry Evans was accused of shooting the victim, Michael Prince, during a heated
discussion involving Evans, Prince, and a third man, Andrew Reed. Prince sprayed Reed
and Evans with mace. Seconds later, a shot was fired, fatally wounding Prince. Evans
248



was charged with first-degree murder. The State filed a pretrial motion in limine,
anticipating a defense attempt to show Reed was responsible for the murder. The State
argued that it had direct evidence that Evans committed the crime; thus Evans should be
prohibited from presenting circumstantial evidence that Reed was responsible for Prince's
death.

"The State asserted that it had two eyewitnesses who observed Evans shoot Prince. The
State hypothesized that the defense would attempt to put forth evidence of other
witnesses who saw Reed with the gun immediately after the fatal shot was fired but who
had not observed Reed shoot Prince with the gun. The State contended that circumstantial
evidence that another had committed the murder was inadmissible absent corroborating
evidence, stating that Evans had corroborating evidence if that evidence was not excluded
as hearsay. The hearsay evidence the State was referring to was the testimony of a
defense witness who would testify that after the shooting Reed admitted that he shot
Prince and that he dumped Prince's body in the woods.

"Defense counsel argued against the motion in limine, asserting that the
circumstantial evidence the State sought to exclude was proper evidence for the jury to
consider . . . ." Evans, 275 Kan. at 97.

On the first day of Evans' trial, the trial judge advised the parties that he was
sustaining the State's motion, conditioned upon the State producing testimony that Evans
was observed shooting at the victim. Ultimately, Evans was able to testify that, after he
heard the shot, he looked up and saw Reed putting a gun down to his side. And another
witness testified that Reed admitted to him and to others that he had shot Prince. Evans
was not allowed to present other witnesses who would have said they also saw Reed with
the gun immediately after the shot was fired. 275 Kan. at 98.

249



Evans argued on appeal that the district judge erred by limiting his evidence of
Reed's guilt and that the interpretation of the third-party evidence rule applied in his trial
was unconstitutional.

Our decision on the appeal observed that the third-party evidence rule had been
correctly applied in previous cases to exclude defense evidence that someone else merely
had a motive to commit the crime or that someone else merely bore a physical
resemblance to a defendant. In those cases, the third-party evidence rule prevented mere
speculation and conjecture. Evans' evidence, on the other hand, linked a third party to the
scene of the crime holding the murder weapon immediately after the fatal shot was fired.
Such evidence should not be excluded under the rule. 275 Kan. at 104-105.

Returning to first principles, we dismissed any artificial distinction between direct
and circumstantial evidence:

"This court has recognized that there is no distinction between direct and
circumstantial evidence in terms of probative value. See [State v.] Beard, 273 Kan.789,
Syl. ¶ 5[, 46 P.3d 1185 (2002); State v. Scott, 271 Kan. 103, 107, 21 P.3d 516, cert.
denied 534 U.S. 1047 (2001); State v. Juiliano, 268 Kan. 89, 97, 991 P.2d 408 (1999).
Additionally, it must be noted that this court has stated that a conviction for even the
gravest offense may be sustained on circumstantial evidence. State v. Sanders, 272 Kan.
445, Syl. ¶ 5, 33 P.3d 596 (2001), cert. denied 536 U.S. 963 (2002); [State v.] Clemons,
251 Kan. 473, 488, 836 P.2d 1147 (1992). Circumstantial evidence that would be
admissible and support a conviction if introduced by the State cannot be excluded by a
court when offered by the defendant to prove his or her defense that another killed the
victim." Evans, 275 Kan. at 105.

We ultimately determined, under the K.S.A. 60-261 standard, that the exclusion of
the additional evidence in Evans could not be labeled harmless and reversed the
250



defendant's murder conviction. This outcome on the state common-law claim eliminated
the need for us to reach the constitutional question. 275 Kan. at 106.

Evans was followed by State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004), rev'd
and remanded 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006), and vacated in
part 282 Kan. 38, 144 P.3d 48 (2006). Marsh explicitly disapproved of the
oversimplification of the third-party evidence rule in Bornholdt and like cases. Marsh,
278 Kan. at 532. It also made important points about how to approach the admissibility of
third-party evidence.

Marsh first made clear that the determination of admissibility of third-party
evidence starts at the same place that the question of admissibility of any evidence starts:

"The general rule is that, unless otherwise provided by statute, constitutional
prohibition, or court decision, all relevant evidence is admissible. K.S.A. 60-407(f).
Relevant evidence is 'evidence having any tendency in reason to prove any material fact.'
K.S.A. 60-401(b). To establish relevance, there must be some material or logical
connection between the asserted facts and the inference or result they are designed to
establish. State v. Lumley, 266 Kan. 939, 950-51, 976 P.2d 486 (1999). We have also
recognized the 'probative values of direct and circumstantial evidence are intrinsically
similar, and there is no logically sound reason for drawing a distinction as to the weight
to be assigned to each.' State v. Scott, 271 Kan. 103, Syl. ¶ 2, 21 P.3d 516, cert. denied
534 U.S. 1047 (2001)." Marsh, 278 Kan. at 530.

Second, Marsh emphasized that Kansas' third-party evidence rule, as originally
conceived and applied, made admission of a third party's motive alone improper.

"[T]he so-called third party evidence rule has limited application and is most assuredly
subordinate to the general rules of evidence and the statutory definition of relevancy in
K.S.A. 60-401(b).

251



. . . .

"[W]hile evidence of the motive of a third party to commit the crime, standing
alone, is not relevant, such evidence may be relevant if there is other evidence connecting
the third party to the crime." 278 Kan. at 531.

Marsh explicitly set out a corollary on circumstantial evidence connecting a third
party to a crime: "[Such] evidence . . . will not be excluded merely because the State
relies upon direct evidence of the defendant's guilt. In short, there is no bright line rule."
278 Kan. at 531.

And finally, Marsh gave direction to district court judges. "[T]here must be the
sound exercise of judicial discretion dependent on the totality of facts and circumstances
in a given case. . . . This require[s] the district judge to consider whether the evidence [is]
relevant under K.S.A. 60-407(f), and [] failure to do so constitutes error." 278 Kan. at
531-32.

Subsequent Kansas cases have applied the third-party evidence rule as described
in Marsh. See State v. Inkelaar, 293 Kan. 414, 441, 264 P.3d 81 (2011) ("[I]n this case,
none of the evidence proffered by the defense connected [the third party] to the charged
crimes."); State v. Tahah, 293 Kan. 267, 275, 262 P.3d 1045 (2011) ("We conclude that
under the totality of facts and circumstances in this case, the [third-party evidence]
neither indicate[s] [the third party's] motive to commit the crimes nor otherwise
connect[s] him to the murder."); State v. Brown, 285 Kan. at 305 ("[N]one of the
evidence offered by Brown amounted to anything more than baseless innuendo. There is
nothing tying these third parties to the shooting."); State v. Adams, 280 Kan. 494, 505,
124 P.3d 19 (2005), disapproved on other grounds by State v. Warrior, 294 Kan. 484,
277 P.3d 1111 (2012) ("[A] district judge must evaluate the totality of facts and
252



circumstances in a given case to determine whether the defense's proffered evidence
effectively connects the third party to the crime charged.")

These cases illustrate that neither the district judge in the first instance nor we on
appeal should focus on the strength of the State's case against a defendant when deciding
the relevance of any third-party evidence that he or she has offered. Relevance is a
function of whether the evidence has "any tendency in reason to prove any material fact,"
K.S.A. 60-401(b). The ultimate fact to be determined in any criminal trial is the
defendant's guilt or innocence, and evidence having any tendency in reason to establish
that material fact should be admitted regardless of its relative strength or weakness when
compared to the State's case. See State v. Krider, 41 Kan. App. 2d 368, 376, 202 P.3d 722
(2009) ("[W]e are convinced the district court appropriately applied the [third-party
evidence] rule [when it] evaluated the totality of the defendant's proffered evidence."
[Emphasis added.]); K.S.A. 60-407(f) ("all relevant evidence is admissible"); Krider v.
Conover, 497 Fed. Appx. 818, 822 (10th Cir. 2012), cert. denied 133 S. Ct. 1469 (2013)
(Kansas rule consistent with United States Supreme Court rule in Holmes v. South
Carolina, 547 U.S. 319, 327, 126 S. Ct. 1727, 164 L. Ed. 2d 503 [2006]). The fact that
third-party evidence consists solely of the defendant's own testimony should make no
difference. See Rock v. Arkansas, 483 U.S. 44, 52, 107 S. Ct. 2704, 97 L. Ed. 2d 37
(1987) ("[T]he most important witness for the defense in many criminal cases is the
defendant himself. There is no justification today for a rule that denies an accused the
opportunity to offer his own testimony.")

These authorities lay the foundation for our conclusion that the State led Judge
Clark into error on his application of the third-party evidence rule to exclude the
testimony of R. Carr about the unknown, uncharged black male with J. Carr on the night
of the Birchwood crimes.

253



Ignoring for the moment any elements of the proffered testimony that could be
subject to challenge as hearsay, as well as the merits of any such challenge, R. Carr was
prepared to testify not that the unknown person had a motive but that he observed him
after being summoned to a location by a distraught J. Carr, that this observation of the
third person with J. Carr took place in the time frame of the crimes, that the third person
possessed property belonging to the Birchwood victims, and that he was present for at
least one discussion between R. Carr and J. Carr on the general subject of the temporary
storage of that stolen property. He also was prepared to testify that he saw the third party
drive the truck to Donley's apartment complex.

Rather than evaluating the relevance of this evidence, the record demonstrates that
Judge Clark based his third-party evidence ruling entirely on a faulty comparison
between the strength of the State's case, using a functionally nonexistent distinction
between direct and circumstantial evidence. This was an abuse of discretion, and we
decline the State's invitation in its brief to reinforce it by ruling that R. Carr's proffered
evidence was irrelevant and inadmissible because it was unlikely to lead to acquittal on
the Birchwood crimes. Its persuasive power or lack thereof is a reversibility
consideration, not a factor in whether we hold there was error. We will turn back to the
question of reversibility after discussing the secondary argument advanced in the district
court for the evidence's exclusion: hearsay.

Hearsay and Its Exceptions

R. Carr argued to Judge Clark that the hearsay elements of his proffered evidence
were admissible under two exceptions to the hearsay rule: declarations against interest
and excited utterances. On appeal, he adds a third on out-of-court statements by
codefendant J. Carr: confessions.

254



Before Judge Clark, the prosecutor never made a coherent legal argument in
opposition to R. Carr's attempt to admit out-of-court statements by J. Carr (and probably
the third party) as declarations against interest or excited utterances.

Before trial, the State's motion in limine sought to exclude only defendant's out-of-
court statements, and the prosecutor said at the hearing on the motion that she was not
addressing any statement to which a hearsay exception applied. The prosecutor's
objection at the time of counsel Wachtel's opening statement reference to the "third black
male who still walks the streets of Wichita" stated no ground for the objection, and Judge
Clark merely ruled at the time that the reference was "improper" and later, "misconduct."
There was no argument from either side on hearsay when Judge Clark again took up the
subject of third-party evidence after the testimony of the mitochondrial DNA analyst.
When R. Carr's counsel made the oral proffer, the prosecution's hearsay objections were
limited to: "violative of the hearsay principles"; "inappropriate and improper"; "pure
hearsay"; "hearsay evidence which the court has clearly said is unexceptional," an
overstatement of Judge Clark's previous action on the issue; "hearsay evidence of an
individual who's not identified"; "highly inappropriate"; and, after Wachtel had
mentioned the hearsay exceptions for statements against interest and excited utterances,
"They've not identified any particular exception that [it] would clearly fall under because
it doesn't." Nevertheless, Judge Clark ruled in the State's favor on the hearsay issue. He
gave no explanation other than to say that any out-of-court statements covered by R.
Carr's proffer offered for truth of the matter asserted "fit[] no exception . . . that I know
of."

On appeal, the State still makes no direct effort to counter R. Carr's arguments for
application of the, now, three hearsay rule exceptions. Rather, it argues that a
determination that the evidence is not admissible under the third-party evidence rule is a
determination that the evidence is not relevant; therefore, the hearsay argument is an
255



attempt "to get in through the back door what the totality of the evidence demonstrates he
cannot properly admit through the front." Of course, we have now decided the third-party
evidence issue in a way that means the State's relevance-based argument is meritless.

Our standard of review is abuse of discretion. Again, this standard includes a
review to determine that the discretion was not guided by erroneous legal conclusions.
Brown, 285 Kan. at 294.

Our evaluation of the three hearsay exceptions argued by R. Carr is impeded by
the silence of the State and Judge Clark on the governing law and by the absence of any
specific articulation of the statements supposed to have been made by J. Carr (and
possibly the third party) in the record. Yet the State has never challenged the sufficiency
of the proffer, and we forge ahead. See Marsh, 278 Kan. at 529 (in absence of challenge
to proffer, issue preserved).

Declarations Against Interest

K.S.A. 60-460(j) defines a declaration against interest:

"Declarations against interest. Subject to the limitations of exception (f) [concerning
confessions], a statement which the judge finds was at the time of the assertion so far
contrary to the declarant's pecuniary or proprietary interest or so far subjected the
declarant to civil or criminal liability or so far rendered invalid a claim by the declarant
against another or created such risk of making the declarant an object of hatred, ridicule
or social disapproval in the community that a reasonable person in the declarant's position
would not have made the statement unless the person believed it to be true."

256



R. Carr relies primarily on State v. Brown, 258 Kan. 374, 904 P.2d 985 (1995),
and Chambers v. Mississippi, 410 U.S. 284, 292, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973),
to support his argument.

In Brown, the defendant sought to introduce statements that another person made
to three witnesses admitting that he, not the defendant, shot the victim. This court noted
that K.S.A. 60-460(j) "includes a requirement the defendant make a showing of
trustworthiness by the out-of-court declarant." 258 Kan. at 382. Quoting State v. Jones,
246 Kan. 214, 219, 787 P.2d 726 (1990), Brown recognized several factors that a district
judge may consider in determining whether a hearsay statement is admissible as a
declaration against interest.

"'A trial judge has wide discretion in determining the admissibility of a declaration
against interest and may consider such factors as the nature and character of the
statement, the person to whom the statement was made, the relationship between the
parties, and the probable motivation of the declarant in making the statement.'" 258 Kan.
at 382.

Brown also discussed Chambers, noting the four factors discussed in that case in
determining that a third party's admissions were admissible as declarations against
interest:

"First, the admissions were made spontaneously to a close acquaintance shortly after the
murder. Second, each confession was corroborated by some other evidence in the case.
Third, each confession was unquestionably self-incriminatory and against interest.
Finally, the third party who was said to have admitted committing the crime was present
in the courtroom, had been under oath, and was available for cross-examination." 258
Kan. at 382-83.

Brown recognized that the fourth factor listed in Chambers is inapplicable under K.S.A.
60-460(j).
257




R. Carr argues that J. Carr's statements to him fall clearly within these
requirements:

"They were against his interest, as they implicated him in multiple homicides, they were
corroborated by the DNA evidence and the physical evidence which placed Jonathan at
the scene of the crime and, as they were made while the events were occurring, and
immediately afterwards, were certainly spontaneous and there is no evidence of
motivation to make the statements."

The material in the oral proffer that appears to quote J. Carr is limited. During the
first phone call, J. Carr said that R. Carr needed to come to a location and that the third
person was "'trippin' and talked about shooting people." During the second call, J. Carr
said he was near Adams' house; that the third person had a gun. During the third call, J.
Carr said that the third person had been "trippin'" and had shot people, that the property
was stolen and people had been killed, and that J. Carr was leaving town. The proffer also
indicated J. Carr's in-person presence when the stolen property was obtained by R. Carr
but attributed no particular statement to J. Carr.

These statements during the telephone calls were not clear on exactly what J.
Carr's role in the crimes had been, but they at least imply his presence when the crimes
were committed. Viewed objectively, they made him vulnerable to at least criminal
investigation, if not prosecution. See State v. Hughes, 286 Kan. 1010, Syl. ¶ 8, 191 P.3d
268 (2008). Subjectively, J. Carr no doubt hoped his brother would help him avoid
punishment. See State v. Cooper, 20 Kan. App. 2d 759, 763, 892 P.2d 909 (1995); State
v. Palmer, 8 Kan. App. 2d 1, 6, 657 P.2d 1130 (1982).

The statements, as described, appear to have been spontaneous, and J. Carr's
presence at the Birchwood home and the soccer field certainly was eventually
258



corroborated. In short, given the mix of factors to be evaluated under Brown and
Chambers, we are comfortable concluding that the J. Carr statements meet the hearsay
exception for declarations against interest, and Judge Clark abused his discretion by, at a
minimum, ruling otherwise prematurely.

On the unknown third person, the proffer says only that R. Carr spoke to him and,
somehow, at some unspecified later point, a decision on what to do with the stolen
property was arrived at by someone. No part of the proffer quotes the unidentified third
person. This part of R. Carr's anticipated testimony was not hearsay at all, and the
declaration against interest exception was unnecessary to make it admissible as
circumstantial evidence of the central fact in this case—R. Carr's guilt or innocence.

Excited Utterances and Confessions

Because we have concluded that R. Carr's anticipated testimony about statements
made by J. Carr was admissible under the declarations against interest hearsay exception,
we need not reach R. Carr's alternative arguments on excited utterances under K.S.A. 60-
460(d) or confessions under K.S.A. 60-460(f).

Reversibility

R. Carr argues that all of his convictions on the Birchwood crimes must be
reversed, because Judge Clark's exclusion of his proffered evidence under the third-party
evidence rule and as hearsay was structural error that prevented him from presenting his
defense.

We first examine the nature of a criminal defendant's right to present a defense and
then the possibility of a remedy for its violation.
259




Nature of Right to Present a Defense

Recognition of a defendant's right to present a defense can be traced to Chambers,
in which the United States Supreme Court rejected a state's "voucher" rule, preventing a
party from impeaching his own witness and its application of the hearsay rule, because
their combination hamstrung a defendant's effort "to develop his defense." 410 U.S. at
296. The Court relied upon due process and the right of confrontation and the right of a
defendant to present witnesses on his own behalf, concluding the combined effect of the
voucher and hearsay rules denied the defendant "a trial in accord with traditional and
fundamental standards of due process." 410 U.S. at 302.

Since Chambers, the Court has reviewed many cases in which the defendant
asserted his right to present a defense was denied by a procedural rule or evidentiary
ruling. Summarizing this history, the Court recently described the "right" as follows:

"'[T]he Constitution guarantees criminal defendants "a meaningful opportunity to
present a complete defense,"' Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 90
L. Ed. 2d 636 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct.
2528, 81 L. Ed. 2d 413 [1984]), but we have also recognized that '"state and federal
rulemakers have broad latitude under the Constitution to establish rules excluding
evidence from criminal trials,"' Holmes v. South Carolina, 547 U.S. 319, 324, 126 S. Ct.
1727, 164 L. Ed. 2d 503 (2006) (quoting United States v. Scheffer, 523 U.S. 303, 308,
118 S. Ct. 1261, 140 L. Ed. 2d 413 [1998]). Only rarely have we held that the right to
present a complete defense was violated by the exclusion of defense evidence under a
state rule of evidence. See [Holmes], 547 U.S., at 331, 126 S. Ct. 1727 (rule did not
rationally serve any discernible purpose); Rock v. Arkansas, 483 U.S. 44, 61, 107 S. Ct.
2704, 97 L. Ed. 2d 37 (1987) (rule arbitrary); Chambers v. Mississippi, 410 U.S. 284,
302-303, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973) (State did not even attempt to explain
the reason for its rule); Washington v. Texas, 388 U.S. 14, 22, 87 S. Ct. 1920, 18 L. Ed.
260



2d 1019 (1967) (rule could not be rationally defended)." Nevada v. Jackson, ___ U.S.
___, 133 S. Ct. 1990, 1992, 186 L. Ed. 2d 62 (2013).

This court also has described a defendant's right to present a defense, sometimes
calling it "fundamental" and "absolute." In one of our first post-Chambers cases, we said:

"The defendant's theory of defense as to why the attack occurred was excluded by the
trial court. The defendant had a right to present his theory of defense. He had the right to
introduce into evidence what he believed was the motive and intent by the deceased for
what he claimed was an attack by the deceased upon his person. This was an integral part
of his claim of self-defense or justifiable homicide. It is fundamental to a fair trial to
allow the accused to present his version of the events so that the jury may properly weigh
the evidence and reach its verdict. The right to present one's theory of defense is absolute.
The trial court improperly used the evidentiary rules of establishing character to exclude
relevant and material information pertaining to the defense." State v. Bradley, 223 Kan.
710, 713-14, 576 P.2d 647 (1978).

See State v. Rowell, 256 Kan. 200, 209, 883 P.2d 1184 (1994), abrogated on other
grounds by Shadden, 290 Kan. 803, 235 P.3d 436 (2010) (right to present theory of
defense "absolute"); State v. Mays, 254 Kan. 479, 487, 866 P.2d 1037 (1994) (same);
State v. Irons, 250 Kan. 302, Syl. ¶ 2, 827 P.2d 722 (1992).

In other cases, we have not used the same categorical terms:

"A defendant must be permitted to present a complete defense in a meaningful
manner, and exclusion of evidence which is an integral part of a defendant's theory
violates the right to a fair trial. However, a defendant's right to call and examine
witnesses is not absolute and on occasion will be overridden by 'other legitimate interests
in the criminal trial process.' Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038,
35 L. Ed. 2d 297 (1973)." State v. Green, 254 Kan. 669, 675, 867 P.2d 366 (1994).

261



Most recently, we said this about the right:

"Under the state and federal constitutions, a defendant is entitled to present his or
her theory of defense. But the right to present a defense is not absolute. Instead, the right
is subject to statutory rules and caselaw interpretations of the rules of evidence and
procedure." State v. Astorga, 295 Kan. 339, Syl. ¶ 2, 284 P.3d 279 (2012), cert. granted,
judgment vacated on other grounds 133 S. Ct. 2877 (2013).

When all of these authorities are laid side to side, our court's description of the
right to present a defense from State v. Green, 254 Kan. 669, Syl. ¶ 2, 867 P.2d 336
(1994), seems closest to the position taken by the United States Supreme Court. The right
is fundamental but its protection tempered by sensible control of the criminal trial
process. A defendant is entitled to a "meaningful opportunity to present a complete
defense," but the right is subject to procedural rules and evidentiary rulings that serve
legitimate interests. See, e.g., Holmes v. South Carolina, 547 U.S. 319, 324, 126 S. Ct.
1727, 164 L. Ed. 2d 503 (2006) (rule under consideration did not rationally serve any
legitimate interest); but see Montana v. Egelhoff, 518 U.S. 37, 42, 116 S. Ct. 2013, 135 L.
Ed. 2d 361 (1996) ("[T]he proposition that the Due Process Clause guarantees the right to
introduce all relevant evidence is simply indefensible."). The right, a critical component
of a fair trial, is violated when a district judge excludes relevant, admissible,
noncumulative evidence that is an integral part of a defendant's theory of defense. State v.
King, 293 Kan. 1057, 1063, 274 P.3d 599 (2012) (proffered testimony of defense
witnesses tending to establish bias, interest, improper motives of arresting officer
admissible as integral part of defense); State v. Houston, 289 Kan. 252, 261, 213 P.3d
728 (2009) (exclusion of evidence of victim's prior violence toward defendant's family
members not error because not relevant to self-defense theory); State v. Cooperwood, 282
Kan. 572, Syl. ¶ 1, 147 P.3d 125 (2006) (expert opinion testimony on effectiveness of
victim's antihallucination medication relevant to defense theory, exclusion not error
because not necessary for jury understanding of defense); State v. Lawrence, 281 Kan.
262



1081, Syl. ¶ 1, 135 P.3d 1211 (2006) (trial court rulings on evidence of effect of prior
shooting on defendant's state of mind not unconstitutional limit on presentation of
imperfect self-defense theory).

We have already determined that R. Carr's proffered evidence was relevant and
admissible. It was not merely integral to his defense; it was his defense. Rock v.
Arkansas, 483 U.S. 44, 52, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987) (defendant's
testimony may be indispensable). The State has not argued, and we do not divine, how
either the third-party evidence rule, as understood and applied by Judge Clark, or the
judge's refusal to apply the hearsay exception for declarations against interest was
supported by a legitimate interest sufficient to overcome R. Carr's right to present his
defense.

Remedy for Violation

R. Carr urges us to treat the violation of his right to present a defense—
particularly given its effective preclusion of his ability to testify to anything useful to the
defense—as structural error that is automatically reversible.

R. Carr cites a single case from the Supreme Court of Louisiana to support his
argument, State v. Hampton, 818 So. 2d 720 (La. 2002). Hampton is too different from R.
Carr's situation to have much persuasive punch. In it, the defendant had told his counsel
continuously that he wanted to testify; counsel responded that it was not the defendant's
decision to make. Here, the record before us indicates that R. Carr decided not to testify
after consulting with counsel in the wake of the judge's rulings.

In addition, although the United States Supreme Court has not ruled on the issue, it
appears the majority of courts that have considered the issue have applied a constitutional
263



harmless error standard to denial of a defendant's right to testify. See Palmer v.
Hendricks, 592 F.3d 386, 398 (3d Cir. 2010); Ortega v. O'Leary, 843 F.2d 258 (7th Cir.
1988); Wright v. Estelle, 572 F.2d 1071 (5th Cir. 1978); Quarels v. Com., 142 S.W.3d 73
(Ky. 2004).

The United States Supreme Court has held that denial of a defendant's right to
present a defense is subject to the constitutional harmlessness standard. See Crane v.
Kentucky, 476 U.S. 683, 691, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986).

Under the constitutional harmlessness standard, again, we must be persuaded
beyond a reasonable doubt that there was no impact on the trial's outcome, i.e., there is no
reasonable possibility that the error contributed to the verdict. State v. Ward, 292 Kan.
541, 565, 256 P.3d 801 (2011).

The State, as the party benefitting from the alleged error, must demonstrate
harmlessness. It summarizes the evidence against R. Carr on the Birchwood crimes in its
brief:

"[Holly G.'s] identification of Reginald, both immediately following the attack and at
trial, as one of the two black males responsible for the crimes perpetrated against her and
her friends. [Holly G.'s] identification was buttressed by multiple scientific sources,
including the mitochondrial DNA analysis, which revealed that of the four hairs collected
from the Birchwood scene and submitted for analysis only two were of African-American
lineage and defendant could not be excluded as the donor of either one; the nuclear DNA
test results, which demonstrated defendant also could not be excluded as the donor of the
DNA evidence recovered from [Holly G.'s] inner thigh and which identified the blood on
defendant's shirt and underwear as that of [Heather M.]; and the medical evidence, which
demonstrated that a few short months after the attack [Holly G.] developed the same
sexually transmitted disease that defendant carried."

264



"Additional evidence to support the identification included footwear impressions
taken from a Voicestream box and tarp at the Birchwood residence and determined to
match the size, shape, and character of the 'B-Boots' Reginald wore. A cigar-type ash, . . .
matched the diameter of the cigar recovered from Reginald's coat pocket. Both pieces of
evidence supported [Holly G.'s] assertion that Reginald played an active role in the
commission of the offenses.

"Further, the court heard evidence that it was Reginald who was in possession of
a vast majority of the property taken from the Birchwood residence, given that it was
recovered from both the apartment where he was staying and his Plymouth vehicle. That
property included a big screen TV, various electronics, bedding, luggage, a vast amount
of clothing, and numerous personal items belonging to each victim—including
checkbooks, wallets, credit cards, drivers' licenses, sets of keys, gas cards, watches, and
day planners—as well as numerous ATM receipts and just under $1000.00 in cash, a
particularly notable fact given that Reginald was unemployed. Moreover, Reginald was
stopped by law enforcement officers after driving by the Birchwood residence at
approximately 4:00 a.m. on the morning of the killings.

"Finally, at the time of the proffer the court was aware of the evidence that
highlighted Reginald's link to the Lorcin handgun used in the commission of the murders
and that, despite his efforts to dispose of the gun, it was ultimately recovered and tested,
revealing that each bullet and cartridge was fired from that gun."

Given the remarkable strength of the State's case against R. Carr, we are persuaded
beyond a reasonable doubt that there was no impact on the trial's outcome from the
exclusion of R. Carr's proffered testimony.

19. ADMISSION OF MITOCHONDRIAL DNA EVIDENCE

R. Carr argues on appeal that Judge Clark erred in admitting mitochondrial DNA
test results on hairs found at the Birchwood home.

265



Two of four hairs collected from the Birchwood home by investigators had a
mitochondrial DNA sequence matching both defendants. Expert testimony at trial
established that persons who share a mother, such as R. Carr and J. Carr, would have the
same mitochondrial DNA sequence. One of the two hairs, which included root material,
was submitted for more precise nuclear DNA testing. R. Carr was excluded as a possible
source of that hair, but J. Carr could not be excluded.

R. Carr filed a motion to exclude evidence of the results of the mitochondrial
DNA testing pretrial and again objected to admission of the evidence during trial.

R. Carr argues on appeal that the results of the mitochondrial testing were more
prejudicial than probative, that he should not be convicted merely because more precise
nuclear DNA testing proved J. Carr's presence at the crime scene, and that the
mitochondrial test results could not measure up to a heightened scrutiny or reliability
standard applicable in death penalty cases.

Standards of Review and Admissibility of Evidence

Appellate review of a district judge's decision to admit or exclude evidence
involves a multistep analysis. State v. Everett, 296 Kan. 1039, 1044, 297 P.3d 292 (2013)
(citing State v. Shadden, 290 Kan. 803, 817, 235 P.3d 436 [2010]).

First, an appellate court determines whether the evidence is relevant.

"Evidence is relevant when it has 'any tendency in reason to prove any material fact.'
K.S.A. 60-401(b). Accordingly, relevant evidence must be both probative and material.
State v. Martinez, 290 Kan. 992, 1009, 236 P.3d 481 (2010) (citing State v. Dixon, 289
Kan. 46, 69, 209 P.3d 675 [2009]). Whether evidence is probative is reviewed under an
abuse of discretion standard; materiality is judged under a de novo standard. Shadden,
266



290 Kan. at 817, 235 P.3d 436 (citing State v. Reid, 286 Kan. 494, 507-09, 186 P.3d 713
[2008])." State v. Bridges, 297 Kan. 989, 995-96, 306 P.3d 244 (2013).

Under the second step, the appellate court reviews de novo the district judge's
conclusion on which rules of evidence or other legal principles apply. Shadden, 290 Kan.
at 817.

On the third step, this court reviews the district judge's application of the rule or
principle either for abuse of discretion or de novo, depending on the rule or principle
being applied. 290 Kan. at 817. Admission of scientific or experimental test results such
as the mitochondrial DNA testing performed on the two hairs here is reviewed for abuse
of discretion. State v. Pennington, 254 Kan. 757, 759, 869 P.2d 624 (1994).

In addition, "a judge may, in his or her discretion, exclude otherwise admissible
evidence if its probative value is substantially outweighed by the risk that its admission
will unfairly prejudice the party against whom it is offered." State v. Smith, 296 Kan. 111,
123, 293 P.3d 669 (2012) (citing K.S.A. 60-445; State v. Leitner, 272 Kan. 398, 415, 34
P.3d 42 [2001]); see State v. Marks, 297 Kan. 131, Syl. ¶ 5, 298 P.3d 1102 (2013) ("It is
within a trial court's discretion whether to exclude evidence if its probative value is
substantially outweighed by the risk of unfair prejudice.").

In State v. Miller, 284 Kan. 682, 690-91, 163 P.3d 267 (2007), this court explained
that

"the admission or exclusion of evidence lies within the sound discretion of the trial court.
If the trial court determines the probative value of the evidence offered is substantially
outweighed by the risk of unfair prejudice, the court may exclude relevant evidence. State
v. Leitner, 272 Kan. 398, 415, 34 P.3d 42 (2001).

267



"At the same time, the law in this state favors the admission of otherwise relevant
evidence. [Citations omitted.] The Court of Appeals for the Tenth Circuit has explained
with regard to Rule 403 of the Federal Rules of Evidence (which has similar language to
K.S.A. 60-445 and that used in Leitner, 272 Kan. at 415) that '[t]he exclusion of relevant
evidence under Rule 403 is "an extraordinary remedy to be used sparingly."' K-B
Trucking Co. v. Riss Int'l Corp., 763 F.2d 1148, 1155 (10th Cir. 1985) (quoting United
States v. Plotke, 725 F.2d 1303, 1308 [11th Cir.], cert. denied 469 U.S. 843 [1984])."

Analysis

The first step of the evidentiary analysis requires this court to determine whether
the mitochondrial DNA evidence is relevant, i.e., both material and probative. "Material
evidence tends to establish a fact that is at issue and significant under the substantive law
of the case. [Citation omitted.] On the other hand, probative evidence only requires a
logical connection between the asserted facts and the inferences they are intended to
establish. [Citation omitted.]" Bridges, 297 Kan. at 999.

R. Carr makes an unconvincing argument that the evidence of the mitochondrial
DNA test results on the two hairs was irrelevant. The identity of the perpetrators of the
Birchwood crimes was material and in issue. And the mitochondrial DNA sequence in
the two hairs had a logical connection to the material fact of identity. There was no other
explanation for R. Carr's presence in the home, and the evidence was certainly
admissible.

R. Carr's central argument is that Judge Clark should have intervened to keep the
probative value of the mitochondrial DNA evidence from being substantially outweighed
by the risk of undue prejudice from its admission. He insists that the expert testimony
about him not being excluded as the contributor of one of the hairs was "meaningless, as
it was conclusively shown that [J. Carr] was at the crime scene, and, in fact, left one of
268



the two hairs." R. Carr says that admission of the mitochondrial DNA evidence, "in the
context of this fact scenario, [was] dangerously misleading, as it was much more likely
that hair came from [J. Carr] as well."

Although it is true that J. Carr was linked to one of the hairs by more precise DNA
testing that eliminated R. Carr as the source of that hair, R. Carr was not excluded as a
contributor of the other hair. This evidence that he could not be excluded through
mitochondrial DNA testing was not meaningless, because it narrowed the class of
individuals who had been present at the crime scene. The relevant comparison is not to
other evidence implicating J. Carr but to the absence of evidence implicating anyone not
in the Carrs' maternal line of descent.

Moreover, in an attempt to show that probative value was substantially
outweighed by risk of unfair prejudice, R. Carr overstates the risk of juror confusion.
During direct examination, the expert was very clear that all maternal relatives would
have the same mitochondrial DNA profile and that mitochondrial DNA is not a "unique
identifier." The expert never suggested that the mitochondrial testing identified who
contributed the hair, and she admitted that nuclear DNA testing was a "more
discriminatory test" and could distinguish between individuals who have the same
mother. On cross-examination of the expert, R. Carr's counsel inquired about the
"disadvantages" of mitochondrial DNA testing compared to nuclear DNA testing. The
expert agreed that it would not tell her whether either hair belonged to R. Carr, J. Carr,
their mother, or any other maternal relative. R. Carr's counsel also succeeded in
demonstrating during cross-examination of the analyst who conducted nuclear DNA
testing on the hair with the root that it did not come from R. Carr.

The bottom line is that R. Carr's arguments on the existence of an imbalance
between probative value and undue prejudice are without merit. The mitochondrial DNA
269



test evidence was admissible and any of its shortcomings when compared with nuclear
DNA test evidence was fully explained to prevent juror confusion.

We also reject R. Carr's arguments that he should not have been convicted because
more precise nuclear DNA testing had already proved the presence of a maternal relative,
J. Carr, at the crime scene, and because the prejudicial nature of the mitochondrial test
results could not measure up to a heightened standard of reliability required of the
procedures by which a state imposes a death sentence. See Caldwell v. Mississippi, 472
U.S. 320, 340, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985) and Ford v. Wainwright, 477
U.S. 399, 411, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986).

The mountain of evidence against R. Carr included an eyewitness identification by
a victim who was able to observe him off and on for several hours; his stop by the police
in the Birchwood area very shortly after the home invasion and murders were reported;
and the discovery of numerous possessions of the Birchwood victims in or recently in his
possession when he was arrested early on December 15, 2000. His view that he was
convicted of the Birchwood crimes on the strength of mitochondrial DNA evidence from
one hair is completely implausible. Any weaknesses in the evidence were fully vetted at
trial, properly attacking weight rather than admissibility, and did not completely
undermine that admissibility under any heightened standard of reliability applicable to
capital cases.

20. DENIAL OF MISTRIAL AFTER ADMISSION OF WARTS AND HPV EVIDENCE

R. Carr argues that Judge Clark erred by refusing to grant a mistrial after the
admission of testimony from Holly G. that she had received a diagnosis of HPV after she
was raped.

270



Additional Factual and Procedural Background

Before trial, R. Carr sought medical records for Holly G., and the prosecution
discussed the obligation to produce such records with her. Holly G. did not disclose
records in response.

At trial, both R. Carr's girlfriend, Donley, and a detective who observed R. Carr
during booking testified during cross-examination by R. Carr's counsel that they had seen
genital warts or lesions on R. Carr's body. When Holly G. heard this testimony from the
detective, she informed prosecutors that she had learned after she was raped that she had
HPV, the virus that causes genital warts or lesions.

After Holly G. informed the State of her diagnosis, the State immediately
disclosed the new information to defense counsel. The State recalled Holly G. to testify,
and she said that she received the diagnosis of HPV from her family doctor several
months after she was raped at the Birchwood triplex.

Counsel for R. Carr did not object to this testimony and did not cross-examine, but
he moved for mistrial because of the failure to disclose the HPV diagnosis before he had
elicited the detective's testimony on cross-examination. Counsel argued that Holly G.'s
testimony "should [not] have been allowed because we had specifically requested the
information."

Judge Clark denied the motion for mistrial, stating:

"Let's find that it was discoverable. . . . I'll treat [the defense objection] as if it were
contemporaneous under the theory that it could be cured with an instruction. I'll find that
. . . there is no fault as the District Attorney did not know it, nobody, even law
271



enforcement, knew it until the cross-examination of [the detective] . . . . And then the
witness H.G. made known her medical condition.

"The objection to it is overruled. I will allow it to stand but make the record clear
that it's something that's been raised and objected to . . . on the basis of it is—well, it
doesn't even rise to the level of excusable neglect. It's just purely something that couldn't
have been discovered under any way that I know of by the District Attorney."

Standards of Review

We review a district judge's denial of a motion for mistrial for an abuse of
discretion. State v. Waller, No. 106,102, 299 Kan. __, __ P. 3d __ (filed June 6,
2014). "'[T]he party alleging the abuse bears the burden of proving that his or her
substantial rights to a fair trial were prejudiced.' State v. Angelo, 287 Kan. 262,
283, Syl. ¶ 16, 197 P.3d 337 (2008) (citing State v. White, 284 Kan. 333, 161 P.3d
208 [2007])." State v. Leaper, 291 Kan. 89, 96-97, 238 P.3d 266 (2010). We first
ask whether the district judge abused his or her discretion when deciding whether
there was a fundamental failure in the proceedings. If so, we then examine
whether the district judge abused his or her discretion when deciding whether the
problematic conduct resulted in prejudice that could not be cured or mitigated
through jury admonition or instruction, resulting in an injustice. State v. Harris,
293 Kan. 798, 814-15, 269 P.3d 820 (2012).

Abuse of discretion is also the governing standard of review when we evaluate a
district judge's decision on whether to admit or exclude evidence as a sanction for
violation of a discovery order. See State v. Bridges, 297 Kan. at 998; State v. Johnson,
286 Kan. 824, 832, 190 P.3d 207 (2008). We have said that there is no due process right
to have testimony excluded when a witness or party violates a discovery order, because
272



K.S.A. 22-3212(g) grants discretion to a district judge to determine a "just sanction" for
the violation. Johnson, 286 Kan. at 832.

Discovery Violation

R. Carr frames the issue before us as one involving a discovery violation that
resulted in admission of evidence causing unfair and harmful surprise, the consequence
of which should have been the requested mistrial. We therefore begin our analysis by
examining whether Judge Clark erred in his implicit ruling that there was no discovery
violation. If this decision was based on an error of law, then Judge Clark abused his
discretion by failing to exercise it properly. See State v. Ward, 292 Kan. 541, 570, 256
P.3d 801 (2011) (citing State v. Gonzalez, 290 Kan 747, 755-56, 234 P.3d 1 [2010]).

When a criminal case is filed, a prosecutor is required to "endorse the names of all
witnesses known" on the charging document. K.S.A. 22-3201(g). At later times
prescribed by the court, a prosecutor may endorse additional witnesses that have become
known. K.S.A. 22-3201(g). "The purpose of the endorsement requirement is to prevent
surprise to the defendant and to give the defendant an opportunity to interview and
examine the witnesses for the prosecution in advance of trial." State v. Shelby, 277 Kan.
668, 674, 89 P.3d 558 (2004).

In addition, K.S.A. 22-3212(a) requires that a prosecutor, upon request, provide
the defendant with, among other things, the results of medical reports and scientific tests
or experiments made in connection with the case. K.S.A. 22-3212(b) requires a
prosecutor, upon request, to provide the defendant with access to documents material to
the case that are in the possession of the prosecutor.

273



After initial compliance with a discovery order, if a party discovers additional
material responsive to a previous request, "the party shall promptly notify the other party
or the party's attorney or the court of the existence of the additional material." K.S.A. 22-
3212(g). If a party fails to comply with this obligation, the court "may order such party to
permit the discovery or inspection of materials not previously disclosed, grant a
continuance, or prohibit the party from introducing in evidence the material not disclosed,
or it may enter such other order as it deems just under the circumstances." K.S.A. 22-
3212(g).

In addition to these and other statutory discovery requirements, "'"[p]rosecutors
are under a positive duty, independent of court order, to disclose exculpatory evidence to
a defendant." State v. Carmichael, 240 Kan. 149, 152, 727 P.2d 918 (1986).' [State v.
Aikins,] 261 Kan. [346,] 381[, 932 P.2d 408 (1997)]." State v. Francis, 282 Kan. 120,
150, 145 P.3d 48 (2006). This duty was first articulated by the United States Supreme
Court in Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). The
duty does not extend to inculpatory evidence. State v. McIntyre, 259 Kan. 488, 497, 912
P.2d 156 (1996).

In this particular case, R. Carr asked the State pretrial for any follow-up medical
records for Holly G. Prosecutors attempted to comply by talking to Holly G., but she
failed to disclose the existence of any such records or the information they would contain.
When prosecutors learned during trial about Holly G.'s HPV diagnosis, they complied
with K.S.A. 22-3212(g) immediately by sharing the new information with opposing
counsel and the judge. The information, given the testimony of Donley and the detective
about R. Carr's genital warts or lesions, was inculpatory rather than exculpatory.

R. Carr does not allege that the State is responsible for Holly G.'s discovery
violation based on her mistaken belief that the follow-up diagnosis contained "private,
274



confidential information." And we see no discovery violation by the prosecutors. Judge
Clark did not abuse his discretion in deciding as much.

Fundamental Failure

We also see no abuse of discretion in Judge Clark's implicit decision that there was
no fundamental failure in the proceedings.

R. Carr's reliance on State v. Lewis, 238 Kan. 94, 708 P.2d 196 (1985), does not
persuade us that Judge Clark should have recognized a fundamental failure here. Lewis
was a much more extreme case, involving prosecutorial misconduct in failure to disclose
a critical piece of evidence, blood on a knife, about which the defense had been misled
until late in the trial. Defendants had used the absence of blood as a lynchpin of their
theory of the case, claiming that the victim's wounds came from broken glass rather than
their knife attack. 238 Kan. at 95-96.

We simply are not faced with a situation where R. Carr's identification as one of
the men who raped Holly G. rose and fell on the circumstantial evidence of his visible
genital warts or lesions and her later HPV diagnosis. Holly G. identified R. Carr directly
as the second intruder at the Birchwood home. Any causal relationship between HPV and
the genital warts or lesions observed on R. Carr was merely corroboration of what was no
doubt compelling testimony from a woman who said she was sexually victimized
repeatedly over several hours by R. Carr and his brother.

Having concluded that Judge Clark did not abuse his discretion by failing to
recognize a fundamental failure in the proceedings, we need not reach the further
question of whether measures other than mistrial could have cured such a failure.

275



21. FELONY MURDER AS LESSER INCLUDED OFFENSE OF CAPITAL MURDER

R. Carr argued in his original brief to this court that Judge Clark erred by failing to
give a requested instruction on felony murder as a lesser included offense of capital
murder. In view of an intervening statutory change specifically eliminating felony murder
as a lesser included offense of capital murder, see K.S.A. 2013 Supp. 21-5402(d), the
parties also now debate whether the new statutory language can be applied
constitutionally to the defendants.

Additional Factual and Procedural Background

Both defendants requested an instruction on felony murder as a lesser included
offense of capital murder. Judge Clark agreed with the State that the facts of the case did
not support a felony murder instruction. He did give lesser included offense instructions
on first-degree premeditated murder and second-degree intentional murder.

The Developing Law

In State v. Cheever, 295 Kan. 229, 284 P.3d 1007 (2012), vacated and remanded
on other grounds, 134 S. Ct. 596 (2013), this court held, 11 years after trial of this case,
that felony murder was a lesser included offense of capital murder and that an instruction
should be given in any capital case where felony murder was supported by the evidence.
295 Kan. at 259.

After Cheever, the 2013 legislature passed Senate Substitute for House Bill 2093,
effective July 1, 2013, (L. 2013, ch. 96, sec. 2) which amended the definition of murder
in the first degree to provide that felony murder was not a lesser included offense of
capital murder. See K.S.A. 2013 Supp. 21-5402(d). The amendment explicitly provided
276



that it was to be applied retroactively to cases such as this. We ordered additional briefing
on retroactive effect of this amendment from the parties.

Both defendants have argued that application of the amended statute to them to
preclude a lesser included offense of felony murder would violate their Eighth
Amendment and Fourteenth Amendment due process rights recognized by Beck v.
Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980). Both also argue that
application of the amendment to them would violate the Ex Post Facto Clause of the
United States Constitution.

A challenge to the constitutionality of a statute raises a question of law subject to
our unlimited review. State v. Cook, 286 Kan. 766, 768, 187 P.3d 1283 (2008).

In State v. Gleason, No. 97,296, 299 Kan. ___, Syl. ¶ 9, ___ P.3d ___ (filed July
18, 2014), we rejected the due process and ex post facto arguments advanced by the
defense in this case. The amended statute abolishing felony murder as a lesser included
offense of capital murder can be constitutionally applied to the defendants in this case.

This ruling eliminates any need for us to address the argument from the defense
that a lesser included instruction on felony murder was supported by the evidence
admitted at trial.

22. EXCLUSION OF EXPERT ON EYEWITNESS IDENTIFICATION

R. Carr argues that his convictions must be reversed because Judge Clark denied
defense motions to admit expert testimony by Scott Fraser on the reliability of eyewitness
identification.

277



Additional Factual and Procedural Background

The defense made a written proffer of Fraser's anticipated testimony. The proffer
stated that the testimony was intended to "aid the trier of fact in evaluating eyewitness
recognition evidence." It continued:

"[T]he proposed testimony, by providing the jury with scientific findings predicated upon
empirical studies about eyewitness recognition, will aid the jury's evaluation of that
evidence . . . ."

"The following is a summary of the potential topics . . . :

"1. Memory Decay—The rapidity of memory decay is much more significant than is
commonly known. Instead of days or weeks, a substantial decline in a subject's
ability to accurately recall details occurs within hours. Dr. Fraser would testify
that the scientific conclusions concerning memory decay are beyond the realm of
a typical juror's knowledge.
"2. Primacy of Opportunity for Identification—The earliest reliable test of a subject's
ability to select or reject a suspect has the highest degree of accuracy. Dr. Fraser
would testify that scientific conclusions concerning the earliest test of
recognition are not generally known.
"3. Own Race Effect—The accuracy of selections where the victim is of a different
race than the perpetrator is significantly less than where the victim and the
perpetrator are of the same race. Dr. Fraser would testify that the available
empirical evidence concerning this effect is not generally known to the average
juror.
"4. Relative Reliability of Selections and Rejections—Rejections (non-selections) in
recognition tests, like photographic lineups, are just as reliable as selections.
Each should be accorded equal weight in terms of accuracy, authenticity, and
information about a victim's memory. Dr. Fraser would testify that the relative
validity of recognition test decisions is not generally known.
278



"5. Confidence—Contrary to common beliefs, a witness' confidence in a selection is
not strongly related to the accuracy of that selection.
"6. Post-Event Information—Information gathered after the event, from newspapers,
television, or other sources, alters the subject's memory of the episode without
the subject's awareness. This phenomenon, as Dr. Fraser would testify, is beyond
the ken of the average juror."

At a hearing on the defendants' motions, the State argued that the evidence
invaded the province of the jury; the evidence would not be helpful to the jury; and the
PIK instruction on eyewitness identification provided adequate safeguards.

Relying on State v. Gaines, 260 Kan. 752, 763, 926 P.2d 641 (1996) (expert
testimony regarding eyewitness identification should not be admitted), Judge Clark
denied the motion.

Continued Viability of Gaines

On appeal, R. Carr and J. Carr argue that Gaines was wrongly decided.

The State cites State v. Schwarm, 271 Kan. 155, 164, 21 P.3d 990 (2001)
(admissibility of expert testimony lies within sound discretion of trial court), to support
its argument that the standard of review on this issue is abuse of discretion. The defense
acknowledges this general standard on admission of expert testimony, but it contends that
the issue of whether Gaines is still good law in Kansas warrants de novo review. See
State v. Jefferson, 287 Kan. 28, 33-34, 194 P.3d 557 (2008).

Both parties are correct. The continuing viability of an earlier holding is a question
of law over which we exercise unlimited review. But, once the legal standard is
established, we review a decision to admit or exclude expert testimony for abuse of
279



discretion. An abuse of discretion may arise through a failure to understand or apply the
correct legal standard. See State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011) (citing
State v. Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1 [2010] ), cert. denied 132 S. Ct.
1594 (2012).

In Kansas, we have long held that expert testimony on the reliability of eyewitness
identification should not be admitted at trial. Gaines, 260 Kan. at 763. This has been true,
despite our recognition of problems inherent in the area of eyewitness identification. See
State v. Mitchell, 294 Kan. 469, 474, 275 P.3d 905 (2012) ("eyewitness identifications
can be unreliable and result in wrongful convictions, causing some of the most tragic
miscarriages of justice"); State v. Warren, 230 Kan. 385, 390-91, 635 P.2d 1236 (1981)
("problem of the potential unreliability of eyewitness identification has been with us for a
long time"). We have steadfastly resisted admission of expert testimony on the subject,
asserting that admission of expert evidence on "'the reliability of eyewitness testimony is
not the answer to the problems surrounding eyewitness identifications.'" Gaines, 260
Kan. at 763 (quoting State v. Wheaton, 240 Kan. 345, 352, 729 P.2d 1183 [1986]); see
also State v. Reed, 226 Kan. 519, 522, 601 P.2d 1125 (1979) (such testimony invades
field of common knowledge, experience, education of laymen). We have relied on cross-
examination, persuasive argument, and a cautionary instruction to provide safeguards
against unreliable eyewitness identifications. See Mitchell, 294 Kan. at 474; Warren, 230
Kan. at 393.

The defendants attack the rationale underlying our precedent and note that several
state and federal jurisdictions have recently rejected it. See, e.g., State v. Clopten, 2009
UT 84, 223 P.3d 1103, 1108 (Utah 2009) ("little doubt" juries generally unaware of
deficiencies in human perception, memory, thus give great weight to eyewitness
identifications; shortcomings of cross-examination, cautionary instruction as safeguards
considered; caselaw excluding expert testimony overturned). Jurisdictions nationwide are
280



split. Compare, e.g., State v. Guilbert, 306 Conn. 218, 251, 49 A.3d 705 (2012)
(reliability of eyewitness identification not matter within knowledge of average juror;
expert testimony admissible), with, e.g., State v. Young, 35 So. 3d 1042, 1050 (La. 2010)
(expert testimony inadmissible; recognizing debate).

Two years ago, we changed course on another aspect of eyewitness identification
evidence, specifically, on the instruction that directs juries to evaluate it especially
carefully. In Mitchell, we held that the traditional PIK cautionary instruction on the
reliability of eyewitness identifications must be responsive to developing research and
thus stop listing the witness' degree of certainty as a factor to be evaluated. We were
mindful that the instruction had the potential to assign more weight to an expression of
certainty than modern scholarship would. We quoted cases from other jurisdictions in
which studies on the correlation between eyewitness certainty and accuracy had been
discussed, and we ultimately determined that "the available studies are not definitive on
the question whether there is a significant correlation between certainty and accuracy."
294 Kan. at 481.

We conclude today that Kansas should evolve in a like manner on the subject of
the potential contribution expert testimony can make when juries decide the reliability of
an eyewitness identification.

At this juncture, with a deeper appreciation of all that we and the average juror do
not know, we have little question that the subjects Fraser intended to address are outside
the usual knowledge of persons without his education and experience. See State v. Willis,
240 Kan. 580, 585-86, 731 P.2d 287 (1987) (when defendant seeks addition of factors to
eyewitness cautionary instruction, including cross-racial identification, unconscious
transference, after-acquired experience, court concludes terms beyond ordinary lay
person's knowledge, experience; inclusion of factors would require expert testimony to
281



support it); see also Kohnken and Maass, Eyewitness Identification: Simulating the
"Weapon Effect," Law and Human Behavior, Vol. 13, No. 4 (1989) (only half of judges,
jurors surveyed believed perpetrator's use of a weapon had debilitating effect on
eyewitness recognition; 88 percent of expert psychologists appreciated weapon's
influence on identification). Although many of us are aware of the general fallibility of
human memory, we are not well versed in its scientifically documented tendencies to
decay or become polluted by outside information and influences over time. We have not
read widely and deeply on whether a certain degree of skepticism should accompany our
examination of a witness' identification of a person of a different race, but this subject is
of legitimate concern when, as here, the victims in all three incidents were white and the
defendants black. Neither the court nor laypeople generally are likely to be aware of
expert arguments that a failure to identify can be just as significant as an identification.
Again, this topic may have had specific bite in this case, notable for the State's extensive
reliance on three victims' identifications of at least one of the two defendants; because
there also were failures to identify. Schreiber did not identify either defendant in a photo
array; Walenta did not identify J. Carr in a photo array; Holly G. did not identify J. Carr
in a photo array, and she did not identify R. Carr at preliminary hearing.

Of course, had Fraser been permitted to testify, all of his testimony on these
subjects would have been subject to the crucible of cross-examination, as well as
probable examination by competing experts. There is no reason to suspect that our truth-
finding system would have collapsed. The State would have been free to present its
version of the authorities on which Fraser relied, and a better-educated jury would still
have been free to accept or reject Fraser's opinions.

The time has come to eschew Gaines' automatic rule of exclusion in favor a more
flexible approach—individual evaluation by the judge in each case whether proffered
expert testimony on the reliability of eyewitness identifications will be helpful to the
282



jury—and whether it meets any other applicable test for admission of expert evidence.
See United States v. Brien, 59 F.3d 274, 277 (1995) (unwilling to adopt blanket rule on
admissibility of expert testimony of eyewitness reliability). We do not pass today on the
outcome that should be reached in any particular case. We simply alter the map for
reaching it.

We conclude that automatic exclusion of Fraser's testimony rested on legal error,
which means the judge's decision qualified as an abuse of discretion. See Ward, 292 Kan.
at 550 (citing Gonzalez, 290 Kan. at 755-56).

Harmlessness

Having concluded there was error in automatically excluding Fraser's testimony
under Gaines, we turn to whether its omission requires reversal of the defendant's
convictions, the evidence for all of which included eyewitness identifications. See K.S.A.
60-261; State v. Herbel, 296 Kan. 1101, 1110, 299 P.3d 292 (2013) (quoting Ward, 292
Kan. 541, Syl. ¶ 6).

Given the hours Holly G. was in the presence of the two intruders—at the
Birchwood home, on her trip with the second intruder to the ATM, and en route to the
soccer field—we cannot be persuaded that the exclusion of Fraser's evidence about the
subjects listed in the proffer affected the outcome of the trial on any of the Birchwood
crimes. Although we are somewhat less sanguine on the Schreiber crime and Walenta
crimes, the commonalities of the gun and various elements of the modus operandi of the
perpetrators of those crimes and the Birchwood crimes also mean we cannot be
persuaded that admission of Fraser's evidence would have made a difference for R. Carr.

283



23. JURY VIEW OF LOCATIONS REFERENCED AT TRIAL

R. Carr challenges Judge Clark's decision to permit a jury view of more than 20
different locations in Wichita, pursuant to K.S.A. 22-3418. He argues that the jury view
violated his right to be present at all critical stages of his trial, his right to the assistance
of counsel, and his right to a public trial.

Additional Factual and Procedural Background

The State filed a pretrial motion pursuant to K.S.A. 22-3418 requesting the jury
view. Each of the more than 20 locations to be viewed was associated in some way with
the Schreiber, Walenta, and Birchwood incidents. The prosecutor said that the view
would allow jurors to "recall the evidence that they heard [in court] and associate it with
the various places involved."

R. Carr's counsel objected and said, "I fear that the view will become the evidence
as opposed to the evidence being that which has been here in court." J. Carr's counsel also
objected and said that the view would be "very dangerous to everybody's shot at a fair
trial."

Judge Clark granted the State's motion.

J. Carr's counsel then asked whether the defendants and counsel would be allowed
to accompany the jury when it visited the different locations. Judge Clark declined to
answer the question at that time, but said, "[I]f I had to decide right now the answer
[would be] no."

284



Near the end of the State's case-in-chief, the district court judge discussed the jury
view procedures with counsel.

"Now, at some point we're going to have a jury view. This is the way it's going to
be done. The jury's going to be all together in the custody of the bailiff on a conveyance.
There's going to be a driver and a deputy sheriff on that conveyance as well. The role of
the driver is obvious. The deputy sheriff's role will be to assist the bailiff. There will be
no talk of the case by anybody. There will be marked law enforcement vehicles that will
lead the conveyance and trail the conveyance. The head of the trial security, Sergeant
Cliff Miller, will follow the route directed by me. He will be in the lead car and the jury
conveyance vehicle will follow that lead car. Any other marked units will follow for
security and to help with traffic.

"The jury will receive an admonition before they leave from me that will be
along this line, that any decision that you jurors make in this case must be based on the
evidence admitted in court, viewed in light of the law that I say must be applied to the
evidence. You're going to be taken for a view of certain locations that have been
discussed and/or depicted by photographs in the case. The purpose of this jury view is to
assist you in understanding the evidence presented in court. During the view do not
discuss the case, do not allow any person to discuss the case with you, be alert to your
surroundings during the trip, you may take your notebooks with you. And you all have
the route, I've given you copies."

R. Carr's counsel renewed his earlier objection to the view, and J. Carr's counsel
again asked whether the defendants and counsel would be allowed to be present during
the jury view. In response, Judge Clark said:

"To me this is no different than what the bailiff has done at 3:00 o'clock for the seven
weeks we've been in trial, that is walks the jury outside at 3:00 o'clock and they have a
walk around. There's no cigarette smokers among the 16, I understand they want to go
out. This is no different. And they will be in the custody of the bailiff . . . and one deputy
285



will be there, not to say anything, just if the bailiff needs assistance that's all. So that will
be the entire party on the conveyance."

From the judge's comments, it was clear to the defendants and their counsel that
the answer to the question about accompanying the jury on the view—at least in the same
conveyance—was still "no." The record before us does not disclose whether any counsel
or members of the public would be permitted to follow the law enforcement vehicles
trailing the jury's conveyance.

Later, Judge Clark informed the jury about the plans for the view:

"As you know, any decision you jurors make in this case must be based on the
evidence admitted here in court, viewed in light of the law that I say applies to that
evidence. And you're going to be taken for a view of certain locations that have been
discussed and/or depicted by photograph here in court. The purpose of the view is to
assist you in understanding the evidence presented in court.

"Now, during the view do not discuss the case. Don't allow anybody to discuss
the case with you. Be alert to your surroundings during the trip, and take your notebooks
with you. They allow no food or drink on the conveyance you're going to be on, I'm told.
And on that conveyance you all are going to be together with Ms. Marquez, the bailiff.
There will be one deputy sheriff. He's there to help the bailiff if the bailiff needs help.
And as I say, no talk by anybody. The person in the lead car that will be leading the
conveyance will know where you're going, and your driver of your conveyance will
know to follow that car. There will also be marked vehicles following you to help with
the traffic. Ms. Marquez will take you now downstairs on the conveyance, and we'll see
you as soon as you get back. Thank you very much for your attention. Follow the bailiff."

Judge Clark expected the jury view to take approximately 2 hours.

286



Before the jury retired to deliberate, it was instructed that "[t]he purpose of the
jury view . . . was to assist you in understanding the evidence that has been admitted here
in court."

Standards of Review

A district judge's decision to allow a jury view under K.S.A. 22-3418 generally is
reviewed for abuse of discretion. State v. Engelhardt, 280 Kan. 113, 120, 119 P.3d 1148
(2005). But statutory interpretation and constitutional analysis raise legal questions
subject to unlimited review on appeal. See State v. Prine, 297 Kan. 460, 474, 303 P.3d
662 (2013); State v. Anderson, 294 Kan. 450, 464, 276 P.3d 200 (2012).

Defendant's Right to be Present

R. Carr first argues that the jury view under K.S.A. 22-3418 violated his right to
be present at all critical stages of his trial. The statute provides:

"Whenever in the opinion of the court it is proper for the jurors to have a view of
the place in which any material fact occurred, it may order them to be conducted in a
body under the charge of an officer to the place, which shall be shown to them by some
person appointed by the court for that purpose. They may be accompanied by the
defendant, his counsel and the prosecuting attorney. While the jurors are thus absent, no
person other than the officer and the person appointed to show them the place shall speak
to them on any subject connected with the trial. The officer or person appointed to show
them the place shall speak to the jurors only to the extent necessary to conduct them to
and identify the place or thing in question."

We have said that, under K.S.A. 22-3405(1) and the confrontation and due process
provisions of the federal Constitution, a defendant in a felony case has both a statutory
287



and constitutional right to be present at all "critical stages" of a prosecution. State v.
Herbel, 296 Kan. at 1109 (quoting State v. Bell, 266 Kan. 896, 919-20, 975 P.2d 239,
cert. denied 528 U.S. 905 [1999]). In determining whether a particular phase of a
criminal proceeding is a critical stage, this court has examined "whether the defendant's
presence is essential to a fair and just determination of a substantial issue." State v.
Edwards, 264 Kan. 177, 197, 955 P.2d 1276 (1998). But the United States Supreme
Court has ruled that due process does not require a defendant's presence at a jury view.
See Snyder v. Massachusetts, 291 U.S. 97, 117-18, 54 S. Ct. 330, 78 L. Ed. 674 (1934).

In 2005's Engelhardt, defendant Robert Engelhardt was charged with first-degree
murder in the stabbing death in a trailer home. At trial, the State moved for a jury view to
permit jurors to walk through the trailer where the murder took place. The State
contended that the view would assist the jury in understanding the amount of space in the
trailer and its layout. Engelhardt's counsel argued that Engelhardt had a right to be inside
the trailer during the jury view because it was a "'critical stage'" of the proceeding and the
jury would be seeing evidence. 280 Kan. at 120-21.

Citing the trailer's close quarters, the district judge ruled that Engelhardt would not
be allowed inside the trailer with the jurors. Engelhardt rejected the judge's suggested
compromise that would have had Engelhardt wait in a car across the street from the
trailer during the view. Engelhardt also rejected the prosecutor's suggestion that
Engelhardt be permitted to stand outside the trailer with the judge and counsel for both
sides during the view. 280 Kan. at 121.

"Ultimately only the jurors were taken to the scene by the bailiff. They had
previously been directed by the district judge to enter the trailer two at a time, walk to
one end and back, and then get back on the county bus that had transported them. The
judge had further admonished the jurors not to talk among themselves or touch anything
in the trailer." 280 Kan. at 121.
288




On review, this court ruled that the jury view did not constitute a critical stage of
the proceeding against Engelhardt. 280 Kan. 113, Syl. ¶ 3. We said that "the role of the
jury view was strictly corroborative," notwithstanding our recognition that it "enabled the
jury to more fully appreciate the space available in the trailer and the distance between
the place of the attack and the witnesses who had been in the bedrooms while the attack
was taking place." 280 Kan. at 123. The view also permitted members of the jury to see
the results of post-crime cleaning described by witnesses. 280 Kan. at 123.

In reaching our conclusion in Engelhardt, we also noted that "Kansas cases have
consistently upheld jury views outside the presence of defendants." 280 Kan. at 123
(citing State v. Hickles, 261 Kan. 74, 88-89, 929 P.2d 141 [1996]; State v. Laubach, 220
Kan. 679, 681, 556 P.2d 405 [1976]; State v. McCorgary, 218 Kan. 358, 363-64, 543
P.2d 952 [1975], cert. denied 429 U.S. 867 [1976]; State v. Zakoura, 145 Kan. 804, 812-
13, 68 P.2d 11 [1937]; State v. Harris, 103 Kan. 347, 352-53, 175 Pac. 153 [1918]; State
v. Adams, 20 Kan. 311, 323-26 [1878]).

R. Carr recognizes this court's decision in Engelhardt but urges us to reconsider its
holding. He asserts that the modern majority position of courts from other jurisdictions is
that "a jury view constitutes evidence, and is therefore a stage of the trial at which the
defendant has the right to be present personally and through counsel."

We are mindful of a split of authority from other jurisdictions on whether a jury
view constitutes evidence and what appears to be the related issue of whether a criminal
defendant has a right to be present. Compare Stephenson v. State, 742 N.E.2d 463, 493-
94 (Ind. 2001) (defendant has no right to attend jury view under Sixth Amendment; jury
view not evidence), with State v. Pauline, 100 Hawaii 356, 378, 60 P.3d 306 (2002) (jury
view constitutes independent evidence; defendant has right to be present at view). We
289



have long been mindful of the split among jurisdictions on whether a jury view of a crime
scene constitutes evidence. See State v. Adams, 20 Kan. 311, 323-26 (1878) (holding
defendant need not be present; noting contrary authority); see also 30 A.L.R. 1357
("Presence of accused during view by jury," originally published in 1924).

Contrary to R. Carr's contention about the modern majority position, it appears
that the majority of other jurisdictions still favor the rule that "a view is not itself
evidence; like a demonstrative aid, its purpose is only to assist the trier of fact in
understanding and evaluating the evidence." 2 McCormick on Evidence § 219 (7th ed.
2013). But the persistent majority certainly is not without its detractors. See United States
v. Gray, 199 F.3d 547, 548-49 (1st Cir. 1999) ("[M]ost of the usual commentators on
matters of evidence either question the rationale for excluding views from evidentiary
status, observe that the position has lost favor, or both."); 2 McCormick § 219 (7th ed.
2013) (citing six cases, including Pauline and Gray).

The Georgia Supreme Court has taken a modified approach under which it
recognizes at least two types of jury views: an "'evidentiary view'" and a "'scene view.'"
See Jordan v. State, 247 Ga. 328, 345, 276 S.E.2d 224 (1981). An evidentiary view
"permit[s] the jury to view evidence introduced in the case which evidence is so large or
affixed that it cannot be brought into the courtroom." 247 Ga. at 345 (e.g., jury view of
vehicle admitted as evidence). A scene view, on the other hand, "permit[s] the jury to
view the premises relevant to the case to enable the jury to better understand the
testimony and other evidence introduced in court . . . . A view of the scene is not
'evidence' in the case." 247 Ga. at 345-46. The Georgia court held that a defendant's right
of confrontation was not violated if he or she was absent at a scene view, but it also
observed in a footnote that the two types of views are not necessarily mutually exclusive.
247 Ga. at 345 n.23 (e.g., "bullet holes in the walls and ceilings viewed").

290



We admit to some discomfort about our historical nonevidentiary treatment of jury
views outside of a defendant's presence. But we also are cognizant that competing
practicalities may sometimes have to control. In this case, for instance, it may have been,
practically speaking, impossible for the defendants to ride on the conveyance with
members of the jury without a heavier and potentially prejudicial security presence. On
the other hand, it does not appear that it would have been impossible to permit counsel to
ride with the jury in their clients' stead or that it would have been impossible to permit the
defendants and their counsel to be transported in a law enforcement vehicle traveling
behind the jury's conveyance.

We will for the time being continue to adhere to our precedent, the evident leaning
of the United States Supreme Court when it said due process concerns were not
implicated by the defendant's absence from a jury view in the Snyder case, 291 U.S. at
117-18, and the continuing majority rule among other jurisdictions that a jury view is
nonevidentiary and not a critical stage of the proceedings requiring the defendant's
presence. Neither the Kansas statute nor R. Carr's right to be present was violated when
Judge Clark excluded him from the jury view in this case.

We nevertheless urge district judges in future cases to consider all reasonable
alternatives to accommodate a criminal defendant's presence at jury views, insofar as it is
practically possible to effect it. As the Supreme Court of Hawaii put it in Pauline, we
may not always continue to "assume that jurors, however they may be instructed, will
apply the metaphysical distinction suggested and ignore the evidence of their own senses
when it conflicts with the testimony of the witnesses.'" 100 Hawaii at 373 (quoting 2
McCormick on Evidence, § 216 [5th ed. 1999]).

291



Defendant's Right to Assistance of Counsel

The Sixth Amendment also guarantees a defendant a constitutional right to
counsel at all "critical stages" of a proceeding. State v. Lawson, 296 Kan. 1084, 1096,
297 P.3d 1164 (2013) (quoting Montejo v. Louisiana, 556 U.S. 778, 786, 129 S. Ct. 2079,
173 L. Ed. 2d 955 [2009]). Its Kansas codification in K.S.A. 22-4503 has potentially
broader coverage; it provides that a defendant is entitled to have assistance of counsel at
every "stage" of the proceedings against him or her. See Lawson, 296 Kan. at 1096
(critical stage "likewise a stage of the criminal proceeding" under K.S.A. 22-4503).

Having concluded that the nonevidentiary jury view in this case was not a critical
stage of the proceeding, we also conclude that R. Carr's Sixth Amendment right to
counsel was not violated by it. Our ruling on the dispensability of defendant's presence
leads us to the same ruling on the dispensability of defense counsel's. That being said, we
still urge district judges faced with jury view requests in future cases to accommodate the
presence of defense counsel where possible.

On the question of whether the legislature intended to provide greater protection
for a defendant's right to assistance of counsel than that provided by the Sixth
Amendment, i.e., that its choice of the phrase "stage of the proceeding" over the phrase
"critical stage of the proceeding" has legal significance, we are doubtful. If greater
protection were the goal, the legislature would not have made defense counsel's presence
at a jury view discretionary under K.S.A. 22-3418. The better practice for Judge Clark
would have been to allow defense counsel to attend the jury view, but the view did not
qualify as a stage of the proceeding requiring counsel's presence under K.S.A. 22-4503.

292



Defendant's Right to Public Trial

We decline to reach R. Carr's public trial argument because the record before us
does not support it. After careful review, we see nothing in it to indicate that any member
of the public's ability to follow the jury's conveyance from place to place during the view
was disallowed or impeded in any way.

24. MODIFICATION OF EYEWITNESS IDENTIFICATION INSTRUCTION

R. Carr argues that the district court erred when it denied his requested addition to
the PIK cautionary instruction on the reliability of eyewitness identifications.

As given, the instruction read:

"The law places the burden upon the State to identify a defendant. The law does
not require a defendant to prove he has been wrongly identified. In weighing the
reliability of eyewitness identification testimony, you first should determine whether any
of the following factors existed and, if so, the extent to which they would affect accuracy
of identification by an eyewitness. Factors you may consider are:

"1. The opportunity the witness had to observe. This includes any
physical condition which could affect the ability of the witness to
observe, the length of the time of observation, and any limitation on
observation like an obstruction or poor lighting;

"2. The emotional state of the witness at the time including that which
might be caused by the use of a weapon or a threat of violence;

"3. Whether the witness had observed the defendant on earlier occasions;

293



"4. Whether a significant amount of time elapsed between the crime
charged and any later identification;

"5. Whether the witness ever failed to identify the defendant or made any
inconsistent identification;

"6. The degree of certainty demonstrated by the witness at the time of
any identification of the accused; and

"7. Whether there are any other circumstances that may have affected the
accuracy of the eyewitness identification."

R. Carr proposed adding an eighth factor, informing jurors that they could
consider "[t]he race of the witness and the race of the person observed." Judge Clark
rejected this proposal.

As discussed with regard to other instructions issues, our first question concerns
reviewability. See State v. Williams, 295 Kan. 506, 515-16, 286 P.3d 195 (2012); State v.
Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012). R. Carr's request for the addition
to the instruction in the district court preserved this issue for appellate review without
imposition of the "clearly erroneous" burden under K.S.A. 22-3414(3). See Williams, 295
Kan. at 515-16.

We next address whether the requested additional language was legally
appropriate, applying a de novo standard of review. See Plummer, 295 Kan. 156, Syl. ¶ 1.
This is where R. Carr's argument fails. The seventh factor set out in the instruction was a
catch-all, covering "any other circumstances that may have affected the accuracy of the
eyewitness identification." In our view, it was not necessary to list additional factors or to
fail to highlight additional factors for the jury's consideration. Under the catch-all's broad
294



language, counsel for the defense were free to argue any factor the evidence would
support.

Under K.S.A. 2013 Supp. 21-6619(b), which permits us to notice unassigned error
in a capital case, we recognize that the PIK cautionary instruction on eyewitness
identification reliability contained a factor we recently identified as erroneous. See State
v. Mitchell, 294 Kan. 469, Syl. ¶ 4, 275 P.3d 905 (2012) ("Jurors should not be instructed
that the degree of certainty expressed by the witness at the time of an identification of the
defendant is a factor they should weigh when evaluating the reliability of that eyewitness
identification testimony."). No case to date has found the inclusion of this factor
reversible error, and we continue that streak here. See State v. Dobbs, 297 Kan. 1225,
1241, 308 P.3d 1258 (2013). Under the circumstances of this case, there is no reasonable
possibility the jury would have rendered a different verdict absent the inclusion of the
erroneous certainty factor. Reversal is not required.

25. AIDING AND ABETTING INSTRUCTION

Between the two of them, the defendants challenge the aiding and abetting
instruction given by Judge Clark on three grounds. They argue that it was clearly
erroneous because it permitted jurors to convict them as aiders and abettors for
reasonably foreseeable crimes of the other, because it failed to communicate that an aider
and abettor had to possess premeditated intent to kill personally in order to be convicted
of capital murder, and because it omitted language from K.S.A. 21-3205(2).

To the extent that one defendant or another does not advance an argument among
these three, we notice any unassigned error under K.S.A. 2013 Supp. 21-6619(b). We
cannot know which defendant was convicted as a principal and which as an aider and
295



abettor on many of the joint charges, including those for capital murder. Thus all three
arguments are equally applicable to each defendant.

Additional Factual and Procedural Background

After the close of the evidence, the jury was instructed on the elements of capital
murder. Jurors were told that, in order for them to find a defendant guilty, the State must
prove beyond a reasonable doubt that the defendant intentionally killed the victim and
that "such killing was done with premeditation." The instruction also specified that "each
defendant" was charged with the offense, and that "[e]ach defendant pleads not guilty to
the charge."

With respect to the attempted first-degree premeditated murder charge, the jury
was instructed on the elements of attempt, including specific direction that a finding of
guilt could not be reached unless the defendant performed an overt act toward the
commission of the crime of first-degree murder with the intent to commit that crime. The
jury also was instructed on the elements of first-degree premeditated murder. Like the
capital murder instruction, the instruction further specified that "each defendant" was
charged with the offense, and that "[e]ach defendant pleads not guilty to the charge."

Judge Clark also gave the jury Instruction No. 8 on accomplice liability, to which
neither defendant objected. Part of this instruction has been quoted before in Section 13
of this opinion. We include a quote of the entire instruction here for ease of reference:

"A person who, either before or during its commission, intentionally aids, abets, advises,
or counsels another to commit a crime with intent to promote or assist in its commission
is criminally responsible for the crime committed regardless of the extent of the person's
participation, if any, in the actual commission of the crime.

296



"A person who, either before or during its commission, intentionally aids, abets, advises,
or counsels another to commit a crime is also responsible for any other crime committed
in carrying out or attempting to carry out the intended crime, if the other crime was
reasonably foreseeable.

"A person who, either before or during its commission, intentionally counsels, procures
or uses force or the threat of force to compel another to commit a crime is responsible for
the crime although the other who directly committed the act constituting the crime lacked
criminal or legal capacity."

Given the multiple charges against the defendants, Judge Clark also instructed that
"[e]ach crime charged against an individual defendant is a separate and distinct offense,"
and that the jury "must decide each charge separately on the evidence and law applicable
to it, uninfluenced by your decision as to any other charge." Judge Clark further
instructed that the State bore the burden to prove "each individual defendant is guilty"
and that the defendants must be presumed innocent.

The State had relied on an aiding and abetting theory to argue that J. Carr was
guilty of capital murder of Heather M., Aaron S., Brad H., and Jason B. and guilty of
attempted first-degree premeditated murder of Holly G., but one of the prosecutors also
told the jury during closing argument that it did not matter "who the shooter was" in those
crimes. In reference to the criminal possession of firearm charges against R. Carr, one of
the prosecutors told the jury in closing that R. Carr should be found guilty on the basis of
his possession of "[t]his firearm," referring to the black Lorcin, on December 7,
December 11, and December 14 and 15.

297



Reasonable Foreseeability of Crimes of Another

The defendants argue that the "reasonably foreseeable crimes" paragraph of
Instruction No. 8 requires reversal of their capital murder and attempted first-degree
premeditated murder convictions, because it allowed the jury to find either of them
guilty, not because he acted with premeditation, but because he aided and abetted his
codefendant in the commission of one of the preceding Birchwood offenses and the
victims' shootings were a reasonably foreseeable outcome of those other offenses.

For example, if the jury believed that one of the defendants aided and abetted his
codefendant in the commission of aggravated kidnapping of one of the Birchwood
victims and that the four murders were reasonably foreseeable outcomes of the
aggravated kidnapping, then the jury could have convicted the defendant of capital
murder, even if there was insufficient evidence that he acted with premeditation. In
essence, in the defendants' view, the challenged language in the instruction allowed the
jury to substitute a "reasonably foreseeable" standard for the essential element of
premeditation for an aider and abettor of capital murder.

Again, we apply a "clearly erroneous" standard when a party fails to object to an
instruction at trial. See State v. Williams, 295 Kan. at 510. We do so in death penalty
cases as well as in other criminal cases. See State v. Kleypas, 272 Kan. 894, 939, 40 P.3d
139 (2001), cert. denied 537 U.S. 834 (2002), abrogated on other grounds Kansas v.
Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006). Under the clear error
framework, the first question we must address is whether error occurred at all.

The first paragraph of Instruction No. 8 was based on PIK Crim. 3d 54.05
(Responsibility for Crimes of Another), and the second paragraph was based on PIK
Crim. 3d 54.06 (Responsibility for Crimes of Another—Crime Not Intended). PIK Crim.
298



3d 54.05 conforms to K.S.A. 21-3205(1). PIK Crim. 3d 54.06 conforms to K.S.A. 21-
3205(2).

We have previously approved of both PIK Crim. 3d 54.05 and 54.06 when they
have been used independently. See State v. Manard, 267 Kan. 20, 34, 978 P.2d 253
(1999) (PIK Crim. 3d 54.05); State v. Gleason, 277 Kan. 624, 636-38, 88 P.3d 218
(2004) (PIK Crim. 3d 54.06).

But we have held that a district judge commits error by giving both instructions
together in a case when a defendant is charged with a specific-intent crime. State v.
Overstreet, 288 Kan. 1, 13, 200 P.3d 427 (2009) (prosecution for attempted first-degree
premeditated murder). We have agreed with the defense position here—in such a
situation, the reasonably foreseeable language allows the jury to substitute a "reasonably
foreseeable" standard for the specific intent element of the charged offense. See State v.
Engelhardt, 280 Kan. 113, 119 P.3d 1148 (2005). And, since our 2005 decision in
Engelhardt, we have consistently applied this rule. See State v. Cofield, 288 Kan. 367,
373, 203 P.3d 1261 (2009) ("reasonably foreseeable crimes" aiding and abetting
instruction erroneous in that it allowed the jury to apply a foreseeability standard to
support conviction requiring specific intent of premeditation); Overstreet, 288 Kan. at 13
(PIK Crim. 3d 54.06 "reasonably foreseeable crimes" instruction improper when
defendant charged with attempted first-degree premeditated murder).

Judge Clark committed error when he included both the first and second
paragraphs of Instruction No. 8, without further explaining that the "reasonably
foreseeable" language did not eliminate the State's burden to prove an aider and abettor's
specific intent on any crime requiring such an element, including capital murder and
attempted first-degree premeditated murder.

299



Having held there was error, we turn to whether that error was reversible under
K.S.A. 22-3414(3). To do so, we review the entire record to determine whether we are
firmly convinced the jury would have reached a different verdict but for the error. The
burden of demonstrating clear error rests with the defendants. Williams, 295 Kan. at 516.

When faced with the question of whether error of the type here merited reversal in
prior cases, we have twice determined reversal was not necessary, see Cofield, 288 Kan.
at 373-74 (large number of shots fired; defendant, cohorts took loaded guns on car ride;
victims vulnerable; defendant confessed he fired at victims); Engelhardt, 280 Kan. at
133-34 (evidence established victim stabbed approximately 55 times; defendant clearly
involved, not an innocent bystander), and once that it was, see Overstreet, 288 Kan. at
14-15 (evidence suggested defendant driver, not shooter; prosecutor's statements
compounded instruction error). On one of the cases in which we ruled that reversal was
not necessary, clear error was the governing standard. See Cofield, 288 Kan. at 372-73.
On the case in which reversal was necessary, clear error also was the governing standard.
See Overstreet, 288 Kan. at 9-10. Together, these cases lead us to conclude that the
difference between ordinary error and clear error on this issue depends on the strength of
the State's case for the existence of premeditation and thus the likelihood that the
"reasonably foreseeable" language may have played a role in the jury's finding or
findings of guilt.

Premeditation means

"to have thought over the matter beforehand, in other words, to have formed the design or
intent to kill before the act. Although there is no specific time period required for
premeditation, the concept of premeditation requires more than the instantaneous,
intentional act of taking another's life." PIK Crim. 3d 56.04(b) (approved in State v.
Saleem, 267 Kan. 100, 105, 977 P.2d 921 [1999]).

300



While the State can certainly establish a defendant's premeditation with direct
evidence, more frequently, it must rely on circumstantial evidence. State v. Scaife, 286
Kan. 614, 620, 186 P.3d 755 (2008).

"'Circumstances which may give rise to the inference of premeditation include: (1) the
nature of the weapon used; (2) lack of provocation; (3) the defendant's conduct before
and after the killing; (4) threats and declarations of the defendant before and during the
occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered
helpless.'" State v. Sanchez-Cazares, 276 Kan. 451, 459, 78 P.3d 55 (2003) (quoting State
v. Murillo, 269 Kan. 281, 286, 7 P.3d 264 [2000]).

Both R. Carr and J. Carr begin their arguments in support of the existence of clear
error with a simple observation: There were two defendants implicated in the capital
murders and the attempted first-degree premeditated murder, but the identity of the
shooter is unknown. This sets the stage for each to assert that the other was the actual
triggerman and to plead ignorance of the triggerman's plan to shoot the victims.

Specifically, R. Carr suggests that the record lacks evidence of premeditation on
his part. He points to the statements the Birchwood intruder identified as him made to
Holly G. He also points to the pattern of the first kidnapper's behavior in the Schreiber
incident—Schreiber was kidnapped, driven to ATMs, then driven to a remote location
and left alive with his damaged car. R. Carr asserts that this pattern demonstrates that he
would have had every reason to expect the same outcome when the Birchwood victims
were driven to the soccer field. Finally, R. Carr also argues that the Birchwood intruder
identified as J. Carr played the lead in the final stages of that incident—he drove the first
car on the way to the scene of the shootings.

J. Carr makes a mirror-image argument, contending the record lacks evidence of
his premeditation. He notes that, before the Birchwood incident, he had acquired a train
ticket for travel out of the Wichita area very early on December 15, 2000. He had
301



prepared for the trip the previous day by buying a box for his belongings with Adams. J.
Carr observes that Holly G. discussed the possibility of the victims being shot only with
the other Birchwood intruder; during those conversations, the intruder identified as J.
Carr was out of earshot. Despite his acquittal on the crimes charged as a result of the
Schreiber incident, he also argues that the second kidnapper would have relied on the first
kidnapper's pattern of behavior with Schreiber, including the fact that he was left alive in
a remote area.

Both defendants have chosen well among the facts in evidence, but we do not have
that luxury. In order to determine whether clear instruction error demands reversal, we
must examine the entire record and make a de novo determination. See State v. Phillips,
295 Kan. 929, 936-37, 287 P.3d 245 (2012).

Viewed in its entirety, we have no trouble concluding that the record contains a
wealth of evidence of both the eventual principal's and the eventual aider and abettor's
premeditation. Four of the five circumstances we have identified as influential on the
question of premeditation plainly existed in this case.

Both Birchwood intruders were armed with handguns, and the victims were shot
with one of them, the black Lorcin. Holly G. saw a black gun in the possession of the
intruder identified as R. Carr. Adams had seen the black gun in J. Carr's possession
within a few days of the Birchwood incident. See Sanchez-Cazares, 276 Kan. at 459 (use
of an SKS semi-automatic assault rifle circumstantial evidence of premeditation).

The record also convincingly establishes lack of provocation on the part of the
Birchwood victims. None knew R. or J. Carr. There was some evidence the entire
encounter was accidental, because a light-colored car had followed the victims' neighbor
from the unit next door home just before the incident began. See State v. White, 263 Kan.
302



283, 295, 950 P.2d 1316 (1997) (lack of provocation, use of deadly weapon sufficient to
infer premeditation).

Several facts concerning the Birchwood intruders' conduct both before and after
the killings also tend to show premeditation.

First, the black Lorcin was used in the gun-facilitated kidnapping and robbery of
Schreiber and in the shooting of Walenta in the days leading up to the Birchwood crimes.
See State v. Drennan, 278 Kan. 704, 718, 101 P.3d 1218 (2004) (prior similar murder
probative of premeditation in charged murder); State v. Henson, 221 Kan. 635, 645, 562
P.2d 51 (1977) (evidence of a previous similar incident relevant to show premeditation).

Second, during the crimes at the Birchwood home and again in the soccer field,
the two intruders had conversations between themselves, giving rise to an inference of
mutual consultation and planning.

Third, as events began to unfold at Birchwood, the intruders made some effort to
conceal their identities. For instance, they covered Holly G.'s face with an article of
clothing; and, when the intruder identified as R. Carr drove her to the ATM, he
specifically instructed her not to look in his direction. By the time the group was en route
in two vehicles to the soccer field, the intruder identified as R. Carr had stopped trying to
conceal his identity. See State v. Hernandez, 232 Ariz. 313, 324, 305 P.3d 378 (2013)
(jury could have found defendant acted as accomplice, intending to aid codefendant in
committing capital murder, based on planned home invasion, no attempt to conceal his
identity from victims); State v. Ellison, 213 Ariz. 116, 134, 140 P.3d 899 (2006)
(evidence defendant planned home invasion, did not attempt to conceal identity, among
other evidence, sufficient to establish aiding and abetting premeditated capital murder,
imposition of death sentence).
303




At the soccer field, both intruders had the victims kneel down. See People v.
Youngblood, 165 Mich. App. 381, 387, 418 N.W.2d 472 (1988) (premeditation can be
based on circumstantial evidence of organized conduct suggesting existence of plan);
State v. Stewart, 714 S.W.2d 724, 726 (Mo. App. 1986) (evidence supported finding of
premeditation when defendant part of coordinated attack on victim). The two intruders
were standing in close proximity to one another. As the shots began, and the victims
started screaming, neither intruder attempted to intercede. See State v. Edgar, 281 Kan.
47, 68, 127 P.3d 1016 (2006) (defendant's failure to oppose commission of crime
supports inference defendant assented to, approved of, encouraged its commission; thus
aided, abetted); State v. Ly, 277 Kan. 386, 395, 85 P.3d 1200 (2004) (failure to intercede
in events culminating in homicide supports guilt on aiding, abetting). The five victims
were shot execution-style. See People v. Robinson, 37 Cal. 4th 592, 630, 124 P.3d 363
(2005) (execution-style shooting of kneeling victim supported theory that murder
premeditated); People v. Bloyd, 43 Cal. 3d 333, 348, 233 Cal. Rptr. 368, 729 P.2d 802
(1987) (execution-style killings at close-range "very strong evidence" of premeditation);
see also Nguyen v. Knowles, CIV S-03-2381 MCE, 2011 WL 1076751, at *19 (E.D. Cal.
2011) (unpublished opinion), subsequently aff'd 475 F. Appx. 128 (9th Cir. 2012), cert.
denied 133 S. Ct. 277 (2012) ("the speed and effectiveness with which the victim was
killed indicated premeditation and deliberation by all four defendants").

After the two intruders left the soccer field, the evidence suggests that they
returned to the Birchwood home to steal the victims' belongings, including the big screen
television mentioned in one of their conversations. The same morning, law enforcement
found both defendants in possession of the victims' property. The jury could have
inferred that the capital murders and the attempted first-degree premeditated murder were
carried out, at least in part, to facilitate the subsequent stealing, again, demonstrating
premeditation. See Drayden v. White, 232 F.3d 704, 709-10 (9th Cir. 2000) (defendant's
304



conduct after murder—including cleaning of scene, search of victim's apartment, stealing
of car, other property—evidence of premeditated plan to rob victim, calculated strategy to
kill him in furtherance of plan); People v. Kelly, 231 Mich. App. 627, 642, 588 N.W.2d
480 (1998) (premeditation supported by evidence defendant took victim's automobile,
items from her home after killing, attempted to sell them); State v. Hardimon, 310
N.W.2d 564, 566 (Minn. 1981) (jury's finding of premeditation supported by evidence
defendant remained in house looking for items to steal after victims killed).

The two Birchwood intruders also made repeated threats throughout the crimes.
When Aaron S. resisted their demands, they struck him in the head, hard enough that he
cried out in pain. When Holly G. asked the intruder identified as R. Carr if he and the
other intruder planned to shoot the victims, he initially responded "no." Later, however,
after poking Holly G. in the back with what she believed to be a gun, he said, "[D]on't
worry, I'm not going to shoot you yet." (Emphasis added.) See State v. Broadus, 206 Kan.
766, 769, 481 P.2d 1006 (1971) (prior threats, along with other circumstantial evidence,
supports finding of premeditation).

In the end, the fact that the State could not firmly establish which Birchwood
intruder was the principal and which the aider and abettor of the capital murders and
attempted first-degree premeditated murder, even in light of the erroneous "reasonably
foreseeable" language in Instruction No. 8, is overcome by the strength of the
circumstantial evidence throughout the whole record on the intruders' shared
premeditation. See State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011) (quoting State
v. Doyle, 272 Kan. 1157, 1162, 38 P.3d 650 [2002]) (circumstantial evidence "sufficient
to establish even the gravest offenses"). The two intruders worked as a team throughout
the night, and this included their concerted joint action at the soccer field. See State v.
Bradford, 272 Kan. 523, 528, 34 P.3d 434 (2001) (defendant's argument that he was not
triggerman failed to provide defense to accomplice liability for capital murder, in light of
305



evidence of his collaboration); State v. Wakefield, 267 Kan. 116, 123, 977 P.2d 941
(1999) (evidence sufficient to convict defendant as aider, abettor, when he knew cohort
ascending stairs of home to kill victims, continued removing items from home rather than
intercede).

Furthermore, in this case, the State did not pin a legally flawed theory of guilt on
the capital murders and the attempted first-degree premeditated murder to the erroneous
instruction. See Overstreet, 288 Kan. at 14-15 (prosecutor's argument reinforced
erroneous instruction). Rather, one of the prosecutors told the jury that the State had
charged both defendants with all of the crimes against the Birchwood victims "because of
their equal participation in those intended crimes." The only time that the "reasonably
foreseeable" language was mentioned was in reference to one of the rapes of Holly G. On
the capital murders and the attempted first-degree premeditated murder, the State
properly focused its arguments on the strength of its evidence of both intruders'
premeditation.

Judge Clark's other instructions also emphasized the requirement of premeditation
as a condition precedent to conviction of either defendant on the capital murders and the
attempted first-degree premeditated murder. The judge also told the jury that it could
convict defendants of second-degree murder as a lesser included offense of capital
murder if there was no premeditation. See State v. Ellmaker, 289 Kan. 1132, 1139-40,
221 P.3d 1105 (2009) (reviewing court must "examine the instructions as a whole, rather
than isolate any one instruction, and determine if the instructions properly and fairly state
the law as applied to the facts of the case").

The inclusion of the "reasonably foreseeable" language in Instruction No. 8 was
not clearly erroneous.

306



Personal Premeditated Intent to Kill

The defense also takes issue with the wording of the first paragraph of Instruction
No. 8, asserting it was clearly erroneous because it failed to explain that an aider and
abettor, not only a principal, must have personally possessed premeditation on the capital
murders and attempted first-degree premeditated murder before conviction would be
appropriate.

We have rejected this defense argument in two cases decided this year. See State
v. Gleason, No. 97,296, 299 Kan. ___, Syl. ¶ 1, ___ P.3d ___ (filed July 18, 2014) (slip
op. at 29-30); State v. Betancourt, 299 Kan. 131, 138-41, 322 P.3d 353 (2014). We will
not revisit those holdings or their supporting rationales at this time.

Omission of K.S.A. 21-3205(2) Language

The final defense complaint about the aiding and abetting instruction is that its
second paragraph should have included an additional phrase from K.S.A. 21-3205(2) to
avoid being labeled clearly erroneous.

As mentioned, this paragraph of the instruction was based on PIK Crim.3d 54.06,
which, in turn, is based on K.S.A. 21-3205(2). That statute reads: "A person liable under
subsection (1) hereof is also liable for any other crime committed in pursuance of the
intended crime if reasonably foreseeable by such person as a probable consequence of
committing or attempting to commit the crime intended." (Emphasis added.) The
emphasized language was left out of Instruction No. 8.

J. Carr, in particular, argues that the omission meant the jury never heard about a
critical causation element of aider and abettor liability. In the words of his brief, "the
307



unintended crime has to be more than reasonably foreseeable; it has to be foreseeable as a
consequence of the actions taken to commit the intended crime." (Emphasis added.) He
relies on our decision in Overstreet, 288 Kan. at 14-15, in which we noted that the jury
may have improperly convicted the defendant, not because he had the requisite intent,
"but because the murder was a reasonably foreseeable consequence of" an aggravated
assault. (Emphasis added.)

J. Carr also argues that omission of the word "probable" before the word
"consequence" means Instruction No. 8 failed to convey to the jury how likely the
unintended crime must be in order for an aider and abettor to be held criminally liable.
His last critical observation is that what may be a "probable consequence" for two
defendants with a long history, such as the defendants here, may be something different
for two defendants who lack that history.

We note that the newer version of the PIK instruction includes the language the
defense campaigns for here, see PIK Crim. 4th 52.140, leading us to recommend its use
as the better practice in the future. Still, because we have approved the PIK Crim. 3d
version of the instruction without the language as recently as our 2004 decision in State v.
Gleason, 277 Kan. 624, 636-38, 88 P.3d 218 (2004) we adhere to our precedent and hold
that Judge Clark did not commit clear error in omitting the phrase from Instruction No. 8
at the defendants' 2002 trial.

26. PROSECUTORIAL MISCONDUCT

R. Carr has not argued prosecutorial misconduct in his appeal. But J. Carr argues
in his separate appeal that one of the prosecutors committed misconduct by encouraging
jurors during closing argument to place themselves in the position of the victims in the
308



three incidents. Under K.S.A. 2013 Supp. 21-6619(b), we take up this argument as
unassigned in R. Carr's case.

Additional Factual and Procedural Background

The prosecutor began her closing argument in this way:

"Ladies and gentlemen of the jury, you have been here a long time and you've heard a lot
of evidence. You've seen a lot of exhibits, over 850. You've heard from over 95
witnesses. There are multiple counts against the defendant Jonathan Carr, 47; 50 against
the defendant Reginald Carr. And we've been here in this well-lighted courtroom. You've
seen a lot of pictures. But you view it at a distance. We view it in a place where it's about
75 degrees, not 25. We view it in a place where there's no wind chill. We view it in a
place where we stand on ground or sit in cushioned chairs, no snow beneath our feet or
below our knees. We view it at a distance in such a way that we cannot hear the sounds
that were part of these crimes. We cannot hear the threats and the demands made to
Andrew Schreiber; Move over, Give us your wallet, Give us your watch, Get down. We
cannot hear, We're not done yet. We cannot hear the sounds of someone approaching and
the glass breaking at Ann Walenta's window. We cannot hear the sound of the engine
when she's trying to start it again. We can't hear in this courtroom that blasting horn, that
plea for help. We can't hear in this courtroom those demands that were made at
Birchwood to those five young people. We can't hear, We're going to pop your ass. We
can't hear, Keep that dog quiet. We can't hear the screams of [Jason B.] when he realizes
someone is bursting into the bedroom in which he sleeps, or the screams of [Brad H.]
when he's assaulted first with gunpoint in the basement. We can't hear those screams that
were made and cries that were made in that closet while [Holly G.] was crying while the
man she loved, [Jason B.], was at the mercy of a gunman taking all of his money out at
the ATM's. And we can't hear the cries of [Aaron S.] in that same closet when he was
hearing the moans of the woman he cared about being [brutally] raped. And, you know,
we can't hear in this courtroom—as much evidence as we fill it with, we cannot hear
[Aaron S.] on his knees screaming, Please, sir, Please, God when he realizes a bullet has
been fired into [Heather M.'s] head.
309




"So we're distanced. But the reality of these crimes [is] in front of you for your decision,
your decision based on evidence—overwhelming evidence that proves the guilt of these
two men."

Standard of Review

For many years, we have said that

"review of prosecutorial misconduct claims involves a two-step process. The court first
decides whether the comments were outside the wide latitude a prosecutor is allowed,
e.g., in discussing the evidence. If so, there was misconduct. Second, if misconduct is
found, we have said the court must determine whether the improper comments prejudiced
the jury and denied the defendant a fair trial. State v. Marshall, 294 Kan. 850, 856, 281
P.3d 1112 (2012)." State v. Bridges, 297 Kan. 989, 1012, 306 P.3d 244 (2013).

Comment Within Wide Latitude Permitted Prosecutors

The defense argument is that this passage from the prosecutor's closing did
nothing to help the jury analyze the evidence, that it focused on the nature of the crimes
instead of who committed them, and that it invited the jury to consider the crimes through
the eyes of the victim. By focusing on these subjects, rather than the elements of the
charged crimes, the suggestion is that the comment was equivalent to an improper victim
impact statement or akin to a forbidden "golden rule" argument. See State v. Stano, 284
Kan. 126, 150, 159 P.3d 931 (2007) (prosecutor's references to value of victim's life to
surviving wife improper); State v. Corbett, 281 Kan. 294, 313, 130 P.3d 1179 (2006)
("golden rule" generally improper); State v. Donesay, 265 Kan. 60, 82, 959 P.2d 862
(1998) (victim impact evidence improper); Walters v. Hitchcock, 237 Kan. 31, 33, 697
P.2d 847 (1985) ("golden rule" argument may improperly encourage jurors to place
themselves in position of plaintiff).
310




The State contends that the quoted passage was appropriate commentary on the
evidence. It cites cases approving prosecution explanations of evidence. See, e.g., State v.
McHenry, 276 Kan. 513, 78 P.3d 403 (2003), disapproved on other grounds by State v.
Gunby, 282 Kan. 39, 144 P.3d 647 (2006); State v. Cravatt, 267 Kan. 314, 335-36, 979
P.2d 679 (1999).

"The fundamental rule for closing arguments is that the prosecutor must confine
his or her remarks to matters in evidence." State v. Ly, 277 Kan. 386, 393, 85 P.3d 1200,
cert. denied 541 U.S. 1090 (2004). "In closing argument, a prosecutor may comment on
admitted evidence as long as the remarks accurately reflect the evidence, accurately state
the law, and are not intended to inflame the jury's passions or prejudices or divert the jury
from its duty to decide the case based on the evidence and controlling law." State v.
Anderson, 294 Kan. 450, 463, 276 P.3d 200 (2012), cert. denied 133 S. Ct. 529 (2012)
(citing State v. Raskie, 293 Kan. 906, Syl. ¶ 3, 269 P.3d 1268 [2012]); Corbett, 281 Kan.
at 313 (citing State v. Tosh, 278 Kan. 83, 90, 91 P.3d 1204 [2004]) ("Prosecutors should
not make statements that inflame the passions or prejudices of the jury or distract the jury
from its duty to make decisions based on the evidence and the controlling law.").

We have approved of comparably dramatic performances by prosecutors. In State
v. Hall, 292 Kan. 841, 257 P.3d 272 (2011), for example, the prosecutor said:

"[T]he blood on that sidewalk that was spilled that day is long since gone. The memories
of that day though of the witnesses that you heard from are not. Thank goodness they
were here to tell you what happened. And now it's your responsibility to go back, view
that evidence, not forget what happened, but expose what happened, and tell this man
exactly what he's guilty of: First-degree premeditated murder and criminal possession of
a firearm." 292 Kan. at 853.

311



The defendant challenged these comments on appeal, but we held that they were proper
reminders to the jury "of their responsibility to review the evidence" and that the
prosecutor could ask the jury "to return a guilty verdict based on that evidence." 292 Kan.
at 854.

Likewise, in State v. Bennington, 293 Kan. 503, 532-33, 264 P.3d 440 (2011),
when the prosecutor told the jury, "'The victim's not here to show, to tell you her side of
the story . . . . Use your common sense, please, and remember what the DNA is doing for
us here. It's speaking for [the victim]. It's telling us who committed these crimes,'" we
held that the remarks were not an attempt to create inappropriate sympathy. 293 Kan. at
532-33; see Cravatt, 267 Kan. at 335-36 ("When examining the legal intricacies of this
case, when reading this cold white paper, don't ever forget the human life that was taken .
. . . [The victim] was 21 years old. He'll never live again. The defendant shot him in cold
blood. Don't let him get away with it'"; comments designed to encourage jury to
"seriously consider the nature of the defendant's act towards the victim").

Under these cases, we detect no error in the prosecutor's remarks here. She
properly acknowledged the jury's efforts. She then commented on the enormity of the
evidence and the unusually large number of charges. And, finally, she suggested that,
despite the difference between in-court descriptions and lived experience, the jury had
heard and seen plenty of evidence to convict the defendants. She referenced only facts
and events in evidence. She did not explicitly invite the jury to consider the crimes
through the eyes of the victims. She did not allude to any lingering trauma or
psychological damage to the victims or to their family and friends.

The wide latitude permitted a prosecutor in discussing the evidence during closing
argument in a criminal case includes at least limited room for rhetoric and persuasion,
even for eloquence and modest spectacle. It is not opening statement; it is not confined to
312



a dry recitation of the evidence presented. Compare State v. Hilt, 299 Kan. 176, Syl. ¶ 9,
322 P.3d 367 (2014) ("A prosecutor may use analogies, similes, allusions, and other
rhetorical devices in an attempt to bring order to the facts presented at trial, place them in
a meaningful context, and construct the whole of a case. Within sensible limits set by
similarity and dissimilarity to the facts of a case, a prosecutor's appropriate rhetorical
devices may include film allusions and comparisons or be otherwise theatrical."), with
Kleypas, 272 Kan. at 894, Syl. ¶ 23 ("Opening statements by counsel in criminal
prosecutions are not evidence. They are given for the purposes of assisting the jury in
understanding what each side expects its evidence at trial will establish and to advise the
jury what questions will be presented for its decision.")

We reject the defense argument that the prosecutor exceeded the wide latitude
permitted her in this case.

27. CUMULATIVE ERROR

R. Carr's final challenge on the guilt phase of his trial is based on the cumulative
error doctrine.

"Cumulative error, considered collectively, may be so great as to require reversal of a
defendant's conviction. The test is whether the totality of the circumstances substantially
prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be
found under the cumulative error doctrine if the evidence against the defendant is
overwhelming. State v. Cosby, 285 Kan. 230, Syl. ¶ 9, 169 P.3d 1128 (2007). Moreover,
this doctrine does not apply if no error or only one error supports reversal. See State v.
Carter, 284 Kan. 312, 332, 160 P.3d 457 (2007)." State v. Dixon, 289 Kan. 46, 71, 209
P.3d 675 (2009).

313



In assessing whether the weight of cumulative errors can be harmless, we examine
the errors in the context of the entire record, including remedial efforts of the trial court,
the nature and number of the errors and whether they are interrelated, and the strength of
the evidence against the defendant. State v. Warrior, 294 Kan. 484, 517, 277 P.3d 1111
(2012).

Thus the final question we must answer in the guilt phase is whether the
cumulative impact of multiple harmless errors was harmless beyond a reasonable doubt.
See State v. Armstrong, 299 Kan. 405, Syl. ¶ 10, 324 P.3d 1052 (2014). This "task is
undoubtedly more subtle than simply counting up the number of errors discovered." See
Grant v. Trammell, 727 F.3d 1006, 1025 (10th Cir. 2013).

We have held that there were several errors, none of them, standing alone,
requiring reversal of all of R. Carr's convictions. To recap, they are:

 The district judge erred in refusing to sever the guilt phase of defendants' trial.
 The district judge erred when he rejected defendants' challenge under Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), to the State's
peremptory strike of juror and eventual foreperson W.B.
 The district judge erred under the Sixth Amendment and Crawford v.
Washington, 541 U.S. 56, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), when he
admitted statements by Walenta.
 The instructions on all four K.S.A. 21-3439(a)(4) sex-crime-based capital
murders were erroneous.
 The convictions on three of four K.S.A. 21-3439(a)(6) multiple-death capital
murders were multiplicitous.
 The convictions on the victim-on-victim rape and attempted rape offenses were
void for lack of subject matter jurisdiction.
314



 Count 42 was multiplicitous with Count 41.
 The district judge erred when he misapplied the third-party evidence rule and
hearsay exceptions, preventing R. Carr from presenting his defense.
 The district judge erred by automatically excluding eyewitness identification
expert testimony proffered by the defense.
 The district judge erred when he instructed the jury to consider an eyewitness'
degree of certainty when assessing that witness' reliability.
 The instruction on aiding and abetting was erroneous.

With our standard of review in mind, we first consider which of the 11 identified
errors carry any weight in our harmless error analysis. Significantly, 4 of the 11 errors
carry no weight. Although we found the instructions regarding the sex-based capital
murders to be erroneous, the multiple capital convictions multiplicitous, the victim on
victim offenses void, and Counts 41 and 42 multiplicitous, we have cured these errors by
vacating the convictions directly arising from these errors. See State v. King, 297 Kan.
955, 987, 305 P.3d 641 (2013) (discussing cumulative error, refusing to weigh impact of
instructional, multiplicity errors already cured through reversal of affected convictions).
Any indirect impact these errors may have had on the remaining convictions is negligible,
at best, and does not factor into our analysis.

Similarly, the weight of the erroneous admission of Walenta's statements is
negligible given that this error directly affected only the convictions arising from that
incident, and we easily held the error harmless because the critical information contained
in Walenta's statements otherwise was lawfully admitted.

Likewise, there was limited potential impact from the aiding and abetting
instruction's failure to convey that the aider and abettor must have premeditated the
killings he assisted. There can be no question that both defendants intended and
315



premeditated the killings when the facts demonstrated that they jointly herded their
victims to the garage and forced them at gunpoint into two vehicles, strategically
arranged and rearranged the victims between the cars, ultimately placing the three male
victims in the trunk of one vehicle, jointly drove the two cars to a remote location, and
had a conversation between themselves before assisting one another in arranging the
victims on the snow-covered ground. Significantly, neither man protested as the victims
were shot, execution-style, one after another.

This leaves us with five errors that carry weight. Four of these errors are
interrelated and affected the defendant's ability to argue that he did not participate in the
crimes—the failure to sever the trials, the erroneous application of the third-party
evidence rule, the erroneous exclusion of expert testimony on eyewitness identification,
and an erroneous eyewitness identification instruction. The remaining error, the reverse
Batson error, more broadly affected the trial. But the combined weight of these
individually harmless errors pales in comparison to the strength of the evidence against
the defendants.

Indeed, the evidence of both of the defendants' guilt of the Birchwood offenses
was not simply strong; it was nothing short of overwhelming. The evidence supporting
the defendants' guilt need not be recounted in detail. Suffice it to say that biological
evidence, in addition to other physical evidence, heavily implicated both defendants.
Most notably, J. Carr's seminal fluid was collected from Holly G., and both Holly G.'s
and Heather M.'s DNA matched DNA found in J. Carr's boxer shorts. Similarly, material
found on Holly G's thigh implicated both R. Carr and J. Carr. And Heather M.'s blood
was found on R. Carr's undershorts.

This highly persuasive biological evidence coupled with other substantial physical
evidence of guilt—such as footprints matching R. Carr's found at the Birchwood
316



residence; both men's possession of property stolen from Birchwood, including cash and
two vehicles—and the highly persuasive circumstantial evidence of guilt—such as R.
Carr's attempt to flee and the clothing J. Carr wore when arrested—lead us to conclude
that any effort by either brother to suggest that he was not involved in the Birchwood
crimes would be futile.

After weighing the cumulative errors from the trial against the overwhelming
evidence of defendants' guilt, we remain unshaken in our confidence in the jury's
verdicts. And, although we focus on the Birchwood crimes, having examined the entire
record, we conclude beyond a reasonable doubt the cumulative impact of the multiple
errors was harmless as to all of the verdicts we affirm today. Consequently, we hold the
cumulative impact of those errors does not require reversal of any more of R. Carr's
convictions.

CONCLUSION FOR GUILT PHASE

For the reasons set forth above, we affirm R. Carr's capital murder conviction
under Count 2. We reverse his three remaining capital murder convictions based on the
alternative theories under K.S.A. 21-3439(a)(4) and (a)(6).

We affirm R. Carr's convictions on Counts 9 through 24. Because four pairs of
these counts were charged in the alternative, this results in affirmance of 12 rather than
16 convictions.

The convictions based on Counts 25, 26, and 29 through 40 are void for lack of
subject matter jurisdiction. We affirm the convictions based on Counts 27 and 28.

317



We affirm R. Carr's conviction on Count 41. We reverse his conviction on Count
42 because it is multiplicitous with Count 41.

We affirm R. Carr's convictions on Counts 43 through 58.

PENALTY PHASE ISSUES AND SHORT ANSWERS

Our majority decision to affirm one of R. Carr's death penalty-eligible
convictions—that based on Count 2 for the murders of Heather M., Jason B., Aaron S.,
and Brad H. under the multiple-homicide theory of K.S.A. 21-3439(a)(6)—requires us to
address several of his penalty phase questions. Again, we have taken the liberty of
reformulating certain questions to focus on their legally significant aspects or effects. We
also have reordered questions raised by R. Carr and have inserted among them any
unassigned potential error noted by us, because we believe this organization enhances
clarity. We number all questions consecutively, this time, P1 through P20.

Our statement of each question is followed by a brief statement of its answer or
our other response.

Because we conclude on the first question that R. Carr's remaining death sentence
must be vacated and the case remanded, we need not reach the merits on all of the other
questions. On those questions on which we do reach the merits or otherwise provide
guidance on remand, we need not analyze and discuss whether any error, standing alone,
would have compelled vacation of the death sentence. Nor need we discuss cumulative
error.

P1. Did the district judge err in refusing to sever the penalty phase of the
defendants' trial? A majority of six members of the court answers this question yes. One
318



member of the court dissents and writes separately on this issue. A majority of six
members of the court agrees that this error requires R. Carr's remaining death sentence to
be vacated and the case remanded. One member of the court dissents and writes
separately on this issue.

P2. Despite compliance with K.S.A. 21-4624(a), was it constitutional error to omit
the four aggravating circumstances asserted by the State from the amended complaint?
To provide guidance on remand, the court unanimously answers this question no.

P3. Did the four aggravating circumstances asserted by the State adequately
channel the jury's discretion in arriving at the sentence of death? To provide guidance on
remand, the court unanimously answers this question yes.

P4. Does the unavailability of a transcript of the jury view deprive R. Carr of a
meaningful opportunity for appellate review of his death sentence? To provide guidance
on remand, the court unanimously answers this question no.

P5. Does K.S.A. 21-4624(c)'s allowance of testimonial hearsay (a) offend the
heightened reliability standard applicable in death penalty cases or (b) violate the
Confrontation Clause of the United States Constitution and Crawford, 541 U.S. 36, 56,
124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)? To provide guidance on remand, the court
unanimously answers the first question no. The court unanimously answers the second
question yes.

P6. Did the district judge err in excluding mitigating evidence of (a) likelihood of
parole or (b) the anticipated impact of R. Carr's execution? To provide guidance on
remand, the court unanimously answers the first question no. The court discusses the
standard that should govern consideration if the second question arises again.
319




P7. Did the district judge err by permitting the State's rebuttal witness to testify
that he had consulted other experts and that they agreed with his opinion? To provide
guidance on remand, the court discusses the standard that should govern consideration if
this question arises again.

P8. Did the district judge err in denying an opportunity for surrebuttal testimony?
The court unanimously agrees that the district judge abused his discretion. The court
declines to reach the issue of harmlessness because of the necessity of remand.

P9. Must R. Carr's sentencing on his noncapital convictions have occurred before
the penalty phase of his trial, and, if so, should the jury have been informed of the
sentences he would serve if he were not sentenced to death? The court declines to reach
the merits of the first part of this question because it is moot and, to provide guidance on
remand, unanimously answers the second part of the question no.

P10. Did the district judge err in failing to instruct the jury that the existence of
mitigating factors need not be proved beyond a reasonable doubt? To provide guidance
on remand, a majority of five members of the court answers this question yes. Two
members of the court dissent, and one of them writes separately for the two on this issue.

P11. Did the district judge err by failing to instruct jurors that "the crime" to be
considered when evaluating aggravating circumstances was capital murder? We discuss
this issue to provide guidance on remand.

P12. Was the jury instruction on the role of mercy clearly erroneous? To provide
guidance on remand, the court unanimously answers this question no.

320



P13. Did the wording of Instruction 10, when read with the verdict forms, misstate
the law on the need for jury unanimity on mitigating factors not outweighing aggravating
factors? To provide guidance on remand, the court unanimously answers this question
yes.

P14. Must R. Carr's death sentence be vacated because a fact necessary to
imposition of the penalty—his age of 18 or older at the time of the capital crime—was
not submitted to the jury or found beyond a reasonable doubt? The court declines to reach
the merits of this issue because the situation that prompted it is unlikely to arise again on
remand.

P15. Did the district judge err in failing to give a "no adverse inference"
instruction? The court declines to reach the merits of this issue because the situation that
prompted it is unlikely to arise again on remand.

P16. Does K.S.A. 21-3205 authorize punishing an aider and abettor the same as a
principal? The court declines to reach the merits of this issue because the record on
appeal does not demonstrate that R. Carr was convicted of capital murder as an aider and
abettor.

P17. Is the death penalty an unconstitutionally disproportionate punishment as
applied to aiders and abettors of capital murder under Section 9 of the Kansas
Constitution Bill of Rights? The court declines to reach the merits of this issue because
the record on appeal does not demonstrate that R. Carr was convicted of capital murder as
an aider and abettor.

321



P18. Was the penalty phase infected by prosecutorial misconduct? The court
declines to reach the merits of this issue because the situation that prompted it is unlikely
to arise again on remand.

P19. Do verdict forms such as those used in this case pose a threat of double
jeopardy? The court declines to reach the merits of this issue because it is unripe.

P20. Does Kansas' execution protocol protect against unnecessary pain? The court
declines to reach the merits of this issue because it is unripe.

FACTUAL AND PROCEDURAL BACKGROUND FOR PENALTY PHASE ISSUES

The day after the completion of the guilt phase of defendants' trial, the penalty
phase of their trial began.

At the beginning of the penalty proceeding, Judge Clark raised a question about
whether courtroom security should be increased in keeping with increased jail security
due to the defendants' convictions. Specifically, he asked whether J. Carr should wear leg
restraints in the courtroom. The judge acknowledged that J. Carr had not misbehaved, but
he nevertheless ordered that he wear the restraints while in court, providing that they be
placed so they could not be observed by the jury.

Meanwhile, counsel for R. Carr informed the judge that his client was no longer
willing to cover the handcuffs he was ordered to wear with a sweater. The judge
permitted R. Carr not to use the sweater, but he admonished him that, if the jury saw the
handcuffs, any later allegation of error arising from that view would be regarded as
invited by R. Carr.

322



The State's Case-in-Chief

The State elected to rely on the evidence from the guilt phase of the defendants'
trial as its case-in-chief during the penalty phase. It asserted the existence of four
aggravating circumstances in the capital murders of Heather M., Aaron S., Brad H., and
Jason B.: Defendants knowingly or purposely killed or created a great risk of death to
more than one person; defendants committed the crimes for themselves or another for the
purpose of receiving money or any other thing of monetary value; defendants committed
the crimes in order to prevent a lawful arrest or prosecution; and defendants committed
the crimes in an especially heinous, atrocious, or cruel manner.

The Defense Case

Defense witnesses testified about the defendants' dysfunctional upbringing and
their psychological profiles.

Family History

Defendants' mother, Janice Harding, testified that she and the defendants' father,
Reginald, Sr., were 16 and 17 years old when their first child, Temica, was born in
Cleveland, Ohio, in 1974. Temica lived with her paternal grandmother for the first year
of her life. When Harding turned 18, she and Reginald, Sr., married. They then had three
more children: R. Carr in 1977, Regina in 1979, and J. Carr in 1980. All of the Carr
children were born prematurely, and J. Carr cried so much from infancy through his late
preschool years that he was called "Screaming Man" by his mother and other family
members.

323



Despite the 3-year age difference between her sons, Harding said that R. and J.
Carr were "always real close," and J. Carr looked up to R. Carr.

Regina developed a cancerous tumor when she was 2 years old and died before her
third birthday. Harding testified that the family deteriorated after Regina got sick.
Harding "fell out" with her mother-in-law, who reported Harding and Reginald, Sr., to
child protective services after seeing bruises on Regina's legs and arms and across her
chest. Harding claimed the child protection case was dismissed because the bruises had
been caused when family members had to hold Regina down to administer chemotherapy
drugs. However, according to Dr. Michael Cunningham, a forensic psychologist who
testified as a defense expert for J. Carr, Harding's mother-in-law, Dorothy Wiley, had
described taking Regina into her care because her parents were not clothing her properly.
Wiley said she called child protective services after observing spoon-shaped bruises on
Regina.

After Regina's death, Harding and Reginald, Sr., began drinking heavily and
fighting. The fights, according to Harding, involved screaming and hitting. Although
Harding said the fights never took place in front of the children, she acknowledged that
they may have seen them. Temica testified that she saw her father beat her mother with a
stick. There was other testimony about Reginald, Sr., chasing Harding with a brick and
about Harding hitting him with a baseball bat.

In addition to fighting with Reginald, Sr., Harding often disappeared, sometimes
for several days at a time. Harding denied being romantically "involved with anyone in
particular." She said she was just "kind of leaving to get away from" Reginald, Sr.
Harding said she did not tell her children when she was leaving; she just packed up and
went. She also admitted there were times when she left her children alone in the house,
going out to a club with a neighbor after she put them to bed. Nevertheless, Harding
324



described herself as a "stay-at-home" mom who "cooked every day, cleaned house, did
laundry," and she said that Reginald, Sr., "worked, paid all the bills[;] nothing was
behind."

Temica testified about her mother staying out and not coming home in this period.
When Harding did come home, Temica said, she would stay a couple of days and then
leave again. During these episodes, either Reginald, Sr., would take care of the children,
or he would take them to an aunt's house.

Other family members also described Harding's unpredictable disappearances
from home while her children were growing up. Cunningham testified that a paternal aunt
described Harding as "promiscuous," saying she went to clubs and failed to come home
at night. After days or weeks, the aunt said, Harding would return with "incredible stories
about how she had been ill or had been in the hospital, even though the family had seen
her at nightclubs, coming out of nightclubs, during the time that she was reporting to
them that she had been in the hospital."

Divorce and Abandonment by Father

Harding and Reginald, Sr., separated when R. Carr was 5 or 6, then divorced.
Reginald, Sr., remarried 2 months after the divorce and eventually lost all meaningful
contact with his children from his first marriage.

R. Carr had always been his father's favorite. In the opinion of Harding's sister,
pediatrician Phyllis Harding, the divorce affected R. Carr more than the other children.
Temica recalled that, as a youngster, R. Carr missed his father and cried often for him.
Grief would turn to anger when his father promised to visit and failed to appear as
arranged. In particular, both Temica and his mother recounted that when R. Carr was in
325



his early teens and having trouble in school, arrangements were made for him to go to
California to live with his father. Although R. Carr had a ticket for the trip, his father
called the day his son was supposed to leave and said that he could not come to
California after all. R. Carr saw his father only one time after that disappointment.

Temica herself last saw her father when she was in fourth or fifth grade. He
refused to accept a collect telephone call from her on the night before she testified.

Post-Divorce Atmosphere

After the divorce, Temica testified, her mother also was not available to her
children. She was "never at home, never at home . . . . [I]t was just me, Jonathan and
Reginald there, period." At one point, Harding began staying frequently with her future
husband, Rick Austin, at his parents' house.

When she was home, Harding was described as "holing up" in her bedroom and
generally unaffectionate with her children. Cunningham reported that Harding would
emerge from her bedroom, fix dinner, leave it on the stove, and carry her plate back to the
bedroom, where she and Austin would remain, typically with the door shut. If the
children wanted to interact with either Harding or Austin, they would have to knock on
the door and sometimes have to talk through it.

Temica said she believed Austin was involved in chopping down stolen cars and
was hiding from law enforcement. Harding testified that Austin once threatened her with
a gun, which "pissed off" R. Carr, who did not like Austin.

Temica also testified that, sometime after the divorce, her mother "just sent me to
California" to live with her aunt, Phyllis; Temica did not know why. Temica attended
326



fifth and sixth grades in California, and her mother never visited her while she was there.
R. and J. Carr also were "shipped off," Temica said; J. Carr went to Brownsville, Texas,
at one point, and R. Carr was sent to West Virginia. Temica could not recall where she
was living during these periods, saying, "I could have been living with anybody."

Temica described eventually getting a job at 15 or 16 and buying school clothes
for her brothers, as well as preparing many evening meals and attending school
conferences when J. Carr experienced learning problems. When she told her mother that
she did not think Harding loved them anymore, Harding beat her. Temica said R. Carr
believed Harding did not like him because he had dark skin.

Temica attributed her mother's eventual move from Ohio to Dodge City to what
she believed were Austin's illegal activities. She said that R. Carr would have been 13 or
14 years old at the time of the move. Phyllis, had moved to Dodge City about a year
earlier, and Austin eventually moved to Dodge City as well. He and Harding had been
married 8 years by the time of Harding's testimony.

Because Temica was a senior in high school and wanted to graduate with people
she knew, she resisted moving to Dodge City. Her mother left her in Ohio with "some
guy named Patrick," whom Temica had never met until her mother packed her things and
took her to stay with him. Temica would not be reunited with her two brothers until years
later, when R. Carr came home after a release from prison in March 2000.

Methods of Discipline

To discipline her children when they were growing up, Harding said, she spanked
her kids "the same way my momma spanked me." This meant she used belts, a house
shoe if there was one around, and, occasionally, an extension cord. The belts had names
327



such as "Heat Daddy," and the children would be required to choose the one she would
use for a spanking.

Temica testified that whoever was getting a "whooping" would have to lie on the
floor in his or her underwear, and the two other children would hold down his or her arms
and legs. Temica described one occasion when she was required to take off all of her
clothes and take the sheets off a bed. She was then placed on the bed like an "X" and
beaten. If the child receiving the beating got up from being held down, then he or she
received additional physical punishment.

The defendants' cousin, Phyllis' adopted daughter, Barbara, testified that she
remembered being disciplined by Harding as well—with belts, spoons, or an electric
cord. She also remembered that one of the other children would hold her legs down.
Cunningham testified that J. Carr and Temica both described that their mother's
whippings with a belt or extension cord would leave them with welts, bruises, and blood
blisters on their backs, legs, or buttocks.

Further defense testimony supported the idea that child maltreatment results in a
desensitization to violence and is a major risk factor for future criminality and violence
when the child becomes an adult.

Substance Abuse

Harding testified that she and Reginald, Sr., smoked marijuana on weekends, but,
as far as she knew, the children were unaware of their drug use. Harding also told Dr.
Thomas Reidy, a forensic psychologist who evaluated and testified for R. Carr, that she
had used cocaine. J. Carr reported to Cunningham that he had seen his mother smoke
marijuana. Cunningham testified that a parental model for drug use is "a broad risk
328



factor, social and psychological risk factor, for relationship problems, for self-control
problems, for feeling of defectiveness, psychological disorders and criminal behavior as
well."

Cunningham testified that a paternal cousin who grew up with Harding's children
reported that Temica told her when they were 10 or 11 years old that Harding and Austin
would do drugs in Harding's bedroom. Cunningham also said that two of J. Carr's peers
had told him while he was an adolescent that they sold crack to his mother.

Cunningham testified that accounts from family members led him to believe that
Reginald, Sr., was an alcoholic. A sister of Reginald, Sr., said he was routinely drunk
when he came to live with her after his marriage with Harding collapsed. Her daughter
described this as well, remembering in particular that Reginald, Sr., would drink cough
syrup by the bottle.

J. Carr told Cunningham that he had been given Thunderbird wine mixed with
grape Kool-Aid by an uncle at age 8. R. and J. Carr visited the uncle weekly and all three
would get drunk. The uncle and R. Carr often would have a girl there as well, while J.
Carr would drink until he passed out.

J. Carr first smoked marijuana at age 13 with R. Carr. They would smoke "blunts,"
cigar-like rolls of marijuana, "every day, all day." After R. Carr was released from prison
in March 2000, he and J. Carr smoked marijuana heavily together.

J. Carr also reported using hallucinogenic mushrooms routinely for about a month
when he was 18 years old, but he stopped because he was getting delayed hallucinations.
He also described smoking "wet"—tobacco or marijuana cigarettes dipped in a mixture of
PCP "and typically embalming fluid"—at age 19.
329




R. Carr had started using drugs at an early age, and he attended school "stoned"
during eighth and ninth grades. He was holding drugs for drug dealers by age 11, and
selling drugs by age 13. He was using alcohol heavily by age 16.

Harding described police execution of a search warrant for drugs at 3 or 4 a.m.
when R. Carr was about 15 years old. She said he was locked up for a probation violation
when he was 16 because a urinalysis showed marijuana use. Harding also said she kicked
R. Carr out of her house when he was 16 or 17 because she was under the impression he
was selling drugs and "didn't want that in the household."

In 1995, R. Carr was arrested for drug possession. After conviction, he was
incarcerated at Norton Correctional Facility for 5 years.

J. Carr told Cunningham that he and R. Carr had smoked 4 to 5 blunts in the 24
hours before the Birchwood crimes and had split two fifths of cognac between noon and
the 11 p.m. entry into the triplex. J. Carr also told Cunningham that he had smoked "wet"
from 30 minutes to an hour before the series of Birchwood crimes began.

Childhood Sexual Abuse and Behavior

The defendants' paternal aunt said that each had come to her separately and told
her that the other was being sexually abused by one of their mother's boyfriends; but each
denied it when she spoke to him directly. Temica testified that she had heard her brothers
were forced to have oral sex with her mother's boyfriends. She also testified that, when
she was a child, her father sexually abused her, including fondling and attempted rape.
She said she never told anyone but thought R. Carr might know because "Reginald pays
attention to people."
330




A paternal cousin also reported that she had been sexually abused as a child by R.
Carr, Sr., and her mother verified her report.

Cunningham testified that J. Carr reported to him that, when he was about 6 or 7
years old, R. Carr prompted a peer-age girl named Amber to begin having sexual contact
with J. Carr. Apparently the girl had already been involved with R. Carr. Harding
appeared to excuse this aspect of R. Carr's early sexual activity by calling the girl
"promiscuous." Temica also confirmed J. Carr's report of his involvement with the girl.

Barbara, who grew up with the defendants, testified that her maternal uncle,
Michael, sexually abused her when she was 6 years old. Phyllis denied that the
defendants' uncle Michael had abused her daughter. Barbara said she did not report the
abuse to her mother and grandmother until she was 15, and they both called her a "lying
bitch."

Barbara also testified that she had sexual contact with R. Carr, starting when she
was 7 years old. She said R. Carr was perhaps 9 years old at the time. This contact
continued for a few years, stopping when R. Carr was in high school. She also reported
sexual contact with Temica.

R. Carr discovered explicit pornographic photographs of his mother when he was
13 years old, and he was suspended from school during the eighth grade for sexually
harassing a teacher.

331



Rape Accusation and Suicide Attempts by J. Carr

In 1989, when J. Carr was in the third grade at Harvey Rice School in Cleveland, a
girl in the school accused several boys, including J. Carr, of raping her. The case was
dubbed the "Harvey Rice rape case," and the boys' names were mentioned in the
newspaper. As a result, J. Carr was teased and called names by schoolmates. Eventually,
the girl's accusation was exposed as false.

J. Carr reported to Cunningham that, after the Harvey Rice allegation, his father
began bringing him back early from visitation and then quit visiting with him at all,
despite maintaining visitation with his brother. Harding sent him to live with Phyllis in
Brownsville for more than a year; Harding said she did not visit J. Carr during that time
because she "didn't have the monies to travel."

Eventually, J. Carr became so despondent over the incident that he tried to hang
himself. At age 17, after dogs that J. Carr was fond of accidentally drank antifreeze and
died, J. Carr again attempted to commit suicide—by drinking antifreeze. Harding thought
J. Carr also was upset at the time because R. Carr had been sent to prison. After the
second suicide attempt, J. Carr went to Ohio to live with a maternal uncle.

R. Carr's Teen Years and Early Adulthood

When his family moved from Cleveland to Dodge City, R. Carr initially adjusted
well. He had many friends and was involved in extracurricular activities. He liked to
draw and write poetry. He had an aquarium in his room and a pet dog.

332



But, as R. Carr got older, he began to struggle in school—fighting and getting
suspended. He finally was expelled when he was 17 and sent to an adult education
program. He passed his GED examination with high scores.

About the same time, R. Carr became a father for the first time. His first son was
born to Richelle Cossman in November 1994.

R. Carr began taking classes at a local community college, with the goal of
becoming an X-ray technician, but his studies came to an end when he was arrested for
robbing the college bookstore. He was placed in community corrections, but he violated
his probation by smoking marijuana and was jailed for several months.

After release, R. Carr was seeing Amanda Lyons. But he was soon arrested again
for possession of drugs. He was convicted of drug possession, theft, aggravated assault,
and obstruction of legal process. He was held in the county jail until he turned 18, then
sent to Norton, where he remained until he was 23. R. Carr was released from Norton on
March 28, 2000.

Lyons' first child with R. Carr, another son, was born in December 1996, when R.
Carr was 19 years old and in prison in Norton. The couple married in May 1997, and
their second child, a daughter, was born in April 2001, while R. Carr was awaiting trial in
this case.

Harding believed that prison changed her son. She said that he had been outgoing,
had kept his room clean, and was mannerly and respectful before he was in prison. After
his release, he was "standoffish." Other family described him as "hardened" by the
experience of prison. They reported that he started going by the name of "Smoke" while
in Norton.
333




Despite his incarceration, R. Carr maintained a relationship with both of his sons.
Lyons brought both boys to Norton regularly for visits. When not in prison, R. Carr had
exercised regular visitation with his oldest son and had taught him how to ride a bicycle.
At the time of trial, his younger son was worried about where his father was sleeping and
what he was eating. R. Carr would draw pictures for his children, and his boys wrote
letters, made cards, and drew pictures for their father. Cossman and Lyons said that R.
Carr's children would continue to have relationships with him, if he were to be
incarcerated rather than executed.

R. Carr was arrested for driving under the influence in Dodge City on November
19, 2000, and bonded out the same day. He was arrested again 9 days later on a
Department of Corrections warrant for a parole violation. Because of a mistake in
calculating his good-time credit on his 1996 prison sentence, the Department declared
that his parole expired on December 1, 2000, when it should have continued until June 1
of the following year. As a result, the Department withdrew its parole violation warrant.
Even though R. Carr also was being held in jail in Ford County on a forgery charge, the
withdrawal of the warrant enabled him to bond out again, this time on December 5, 2000,
2 days before the Schreiber incident.

R. Carr's Evaluations and Expert Testimony

Dr. Mitchel Woltersdorf, a clinical neuropsychologist who diagnoses brain
disorders, put R. Carr through a battery of tests. R. Carr's MRI and EEG were normal.
But Woltersdorf diagnosed him with brain damage, evidenced by significant differences
in levels of mental functioning that should be relatively equal. For example, R. Carr had a
verbal scale IQ of 86, while his performance scale IQ was 111. Normal point spread
would be 5 to 7; a 25-point difference occurs in less than 3 percent of the population. R.
334



Carr also had a 19-point difference between his verbal comprehension score of 84, which
reflects left brain hemisphere skill, and his perceptual organization score of 103, which
reflects right hemisphere skill. That great a difference occurs in about 14 percent of the
population. Woltersdorf said that R. Carr also demonstrated "huge" differences in
memory and visual testing; these differences were "way too large" for a normal brain.

According to Woltersdorf, the type of brain dysfunction R. Carr suffered from was
not consistent with the type of damage caused by drug or alcohol abuse. Rather, he
probably suffered significant head trauma or traumas, most likely during the first 8 or 9
years of his life. The doctor could not say if the brain damage was due to abuse or was
related to birth trauma. There was evidence that, at one point during their childhoods, J.
Carr had shot R. Carr in the head with a BB gun.

Woltersdorf testified: "A person with a head injury has to make some wise
choices to prevent that head injury from ruining [his or her] life." If R. Carr were an
ordinary patient, he would need to be placed on medication for mood control and anger
control, and he would be counseled about a traumatic brain injury "lifestyle, swearing off
caffeine, illicit substances, alcohol." Consumption of caffeine, drugs, and alcohol can
make a person with a head injury violent and aggressive.

Woltersdorf also tested R. Carr's emotional status. He found that he suffered from
depression, antisocial personality disorder, distrust, and paranoia. In Woltersdorf's
opinion, R. Carr's condition was chronic: "[I]t's been there forever."

The antisocial personality disorder also showed up in problems with anger
management and difficulties with authority, Woltersdorf said. He emphasized that R.
Carr did not choose the disorder. "It's something that he was given, so to speak, in life,
335



somewhere between birth and the fifth year of life . . . . it eventually manifests itself by
the adolescent years."

Reidy, the forensic psychologist, prepared a social history for R. Carr. He echoed
Woltersdorf's statement that family circumstances are usually the cause of the
development of an antisocial personality disorder, noting that families are the strongest
socializing force in life, and "deviance begins at home." He said: "The quality of
attachments to the parents and other members of the family during childhood is central to
how the child will relate to and value other members of society as an adult." Reidy
looked at how R. Carr went from being a happy toddler, a "good kid" who liked to push a
vacuum cleaner around, to a young adult convicted of four counts of capital murder.

Consequences of parental abandonment and neglect, Reidy said, included

"damage to one's identity, lowered esteem, various and sundry psychological disorders,
anxiety disorders, depression particularly[, a]cademic deficits, impaired capacity to trust
and care for others[, d]eficient identification with social ideals. One—in this kind of
environment, one tends to become morally corrupt and then various kinds of problematic,
delinquent, violent behavior can occur."

Reidy also testified that inappropriate sexual exposure at an early age also has
lasting negative effects. The long-term risk is "disturbed sexual behavior" that gets
expressed in a variety of ways in adulthood. One expression of disturbed sexual behavior
is "deviant sexual hyperarousal." This occurs when "[s]ex is viewed as a means of power
and control, very much like a rape scenario." Early sexual exposure can lead to impaired
sexual impulse control and can cause repetitions and re-enactments of sexual
victimization. In sum, R. Carr grew up in a "sexually perverse family atmosphere," Reidy
said. This upbringing was likely to leave R. Carr with a distorted view of maleness and
sexuality.
336




Reidy identified other risk factors and consequences for a negative outcome in R.
Carr's life, including early aggression and violent behavior evidenced by fights starting at
a young age and early gang affiliation; antisocial behavior and attitudes as reflected in
arrests for robbery, battery, drug and alcohol use, holding drugs for dealers, and stealing;
and emotional and physical abuse. He said that R. Carr's developmental trauma was
severe and that protective factors were minimal to nonexistent.

Evaluation of J. Carr

Harding testified that she learned J. Carr was dyslexic when he was in third grade,
right before he was sent to live with Phyllis in Brownsville. She also said he had trouble
passing grades during his middle school years and was kept back in seventh grade.

Cunningham's testing measured J. Carr's current abilities at the second- or third-
grade range. J. Carr had told Cunningham that he tried to disguise his inability to read in
elementary school by avoiding or refusing to read aloud; when he was forced to read
aloud, he was ridiculed by his classmates. He finally dropped out of school in tenth or
eleventh grade.

Cunningham characterized J. Carr as emotionally disturbed from early childhood
on. Cunningham identified the family situation—involving physical and sexual abuse,
parental neglect, and emotional detachment—and a genetic predisposition to mental
illness and substance abuse as likely contributors to J. Carr's pattern of emotional
instability.

Cunningham testified that the family history showed that Harding's solution to her
children's increased need, even in the greatest of crises, was to send them to someone
337



else's household. Cunningham said that it was important for a child to be with his
brothers and sisters as well as his parents, because "when you move a child from one
placement to another, particularly when you disrupt those sibling relationships as well,
you are doing grave emotional harm to this child."

Cunningham testified that the neglect Jonathan experienced growing up was not
primarily physical in nature. Rather, there was "an issue of very significant emotional
neglect, of an absence of attachment and bonding to parents, of affection, of continuity of
care, later on[,] of supervision and guidance."

Cunningham testified that parental detachment such as that in the defendants'
home had ''ominous implications" for the quality of Harding's relationship with her
children, how she sees herself as a mother, and "the quality of her responsibility . . . to
these kids."

Cunningham also spoke about Harding's methods of discipline. In his view,
although it is damaging for a child to observe violence in the home, it is worse "to be
made a party to it . . . . you are the one that's helping administer this abuse, [and it]
magnifies the emotional[ly] damaging effects of it."

Cunningham also documented that J. Carr had a serious go-cart accident at age 15,
which caused a concussion with unconsciousness of an hour or more and merited a
hospital admission.

Cunningham said that he had documented a susceptibility to mental illness
stemming from the maternal side of J. Carr's family. Both the maternal grandmother and
maternal uncle Michael had significant histories of mental illness. Phyllis described her
mother's repeated admissions to state mental hospitals and her noncompliance with
338



medication that prevented her from becoming angry and ranting and raving. Barbara
testified that her uncle Michael never took baths and used to "[w]alk around the house
with his pants open so you can see his genitals." Michael also exhibited symptoms similar
to his mother's, including unpredictable, explosive anger and noncompliance with his
medication regimen.

Given significant developmental abuse and neglect, disruptive relationships, and
the fact that J. Carr was carrying around a lot of emotional pain as he entered
adolescence, Cunningham testified, J. Carr was a prime candidate to "self-medicate" with
drugs and alcohol.

Cunningham said that J. Carr also told him that R. Carr was involved with a gang,
but J. Carr nevertheless looked up to his older brother. Family members also said that R.
Carr influenced J. Carr as they grew up. Temica, specifically, said that R. Carr would
ridicule J. Carr as weak, calling him a "wuss" and other disparaging names when he did
not do something R. Carr wanted him to do.

Harding said that she warned J. Carr to stay away from R. Carr when he got out of
prison because J. Carr would "end up getting in trouble." Her younger son, she said, was
"a little different when he's with Reggie."

Using a United States Department of Justice study of risk factors that increase the
likelihood of involvement in criminal violence, Cunningham found J. Carr had 18 or 19
out of approximately 22 risk factors. On protective factors, J. Carr exhibited some
elements of positive social orientation. Regarding a second study breaking risk factors
into categories of individual, family, social, peer, community, and neighborhood,
Cunningham found J. Carr had a majority of the risk factors in each category. He said
that other risk factors were J. Carr's age and learning disabilities.
339




Cunningham summed up the factors leading to J. Carr' s participation in the crimes
as a combination of "some very problematic genetic predispositions," in addition to
"neurological abnormalities," "a catastrophic family setting" leading to "substance abuse
and disturbed adjustment that are aggravating each other during adolescence. Out of that,
you have the influence of his older brother and intoxication at the time. And from that,
you have the capital offense."

Testimony of J. Carr's Friends

Three of J. Carr's friends testified for him during the penalty phase of the trial.

Leroy and Juanita Culver knew J. Carr when he lived in Dodge City. Jesse Harris
knew J. Carr in Ohio through his daughter, who was J. Carr's girlfriend.

J. Carr worked for Leroy for 3 or 4 years. Leroy said that J. Carr was a good
worker who wanted to learn and that he was "looking for affection" from somebody.
Juanita described J. Carr as "one of the nicest, polite, kind, warm, giving, always—he
was the epitome of the finest young man you could find."

Jesse Harris said that J. Carr stayed with his family in Cleveland and that, at some
point, he became engaged to his daughter. He never had harsh words or any trouble with
J. Carr. He described him as "a real quiet young man," whom he treated "like one of my
own sons."

Defendants' Roles in Quadruple Homicide

340



During her testimony in the penalty phase, on questioning from J. Carr's counsel,
Temica said that R. Carr admitted to her that he shot "those people," referring to Heather
M., Aaron S., Brad H., and Jason B.

There was no testimony from any witness that J. Carr admitted to shooting the
victims of the quadruple homicide, but the prosecution made reference to J. Carr claiming
to have been the triggerman while he was in jail. During the State's closing argument,
when the claim was mentioned again, and defense counsel objected to facts not in
evidence, Judge Clark sustained the objection.

Dueling PET Scan Experts and Denial of Continuance for Surrebuttal

The defense presented testimony from Dr. David Preston, a specialist in nuclear
medicine who was qualified as an expert for the defense at the penalty phase regarding
PET imaging and its use as a diagnostic technique. Preston said that a PET scan of a
person's brain is not accepted to predict or explain criminal behavior, but he did identify
what he said were abnormalities in both R. Carr's and J. Carr's scans. Specifically, he said
images of their temporal lobes demonstrated marked deficits in metabolism in the regions
of the hippocampus and amygdala.

Preston testified that Exhibit A-39, an image of R. Carr's brain, and Exhibit JC-2,
an image of J. Carr's brain, displayed images that were higher in back and lower in front
to give a larger view of their temporal lobes. He also admitted on direct examination that
he had mistakenly classified Exhibit A-40 as a PET scan of a normal young male for
comparison purposes. In fact, it was an image of a 50-year old male with a memory
problem.

341



Preston further testified that, in patients he has seen in the past, a closed head
injury would be the first thing he would suspect as a cause of the type of deficits he
observed in the defendants' scans. But he said that no history of closed head injuries was
provided to him in this case.

The State called Dr. Norman Pay, a neuroradiologist, in rebuttal to Preston. On
direct examination, Pay testified that he consulted with the person at Via Christi Medical
Center who performed the PET scans on the defendants, the doctor in charge of PET
scans at Via Christi, and a neurologist at Via Christi. The State had Pay identify these
colleagues, who were in the courtroom, and asked each of them to raise a hand, which
they did. Pay said all three were in agreement with him that Exhibits A-39 and JC-2 were
skewed in color and were manipulated so that the anterior portion of the temporal lobe,
which includes the amygdala, would not appear in the images. When the prosecutor
asked Pay if the manipulated images were "by design," he responded, "We were told."

Pay further testified that, looking at all of the PET images, he and the others he
consulted had reached the opinion that the scans showed normal metabolism in both
defendants' brains.

J. Carr's counsel objected to admission of opinions from Pay's colleagues in the
courtroom, but the objection was overruled.

On cross-examination, Pay admitted that he normally does not read PET scans,
despite being asked to do so in this case. He said that the difference between JC-2 and
State's Exhibit 912, another of J. Carr's PET scan images on which he was relying to give
his opinion, might be the presence of "scatter" in 912. Scatter can produce a halo effect
that can be eliminated by reducing the background color.

342



When asked if he could tell whether Preston had manipulated the images so that
they would be higher in back and lower in front, Pay responded, "You know, we have to
have Dr. Preston here to testify because I don't really know what he did." Pay agreed that
if two dots in one of the images were indicative of J. Carr's eyes, it might necessarily
involve the area of the hippocampus and amygdala. He also testified on cross-
examination that he did not attempt to contact Preston to ask him how he arrived at his
conclusions and that he was not there to cast any aspersions on Preston's integrity or
competence.

The defense requested a continuance to confer with Preston and recall him as a
witness in surrebuttal. Counsel argued that he must be permitted to address the State's
allegation that he manipulated the PET images "by design."

Judge Clark characterized the disagreement between Preston and Pay as "a fact
question for the jury . . . between experts" and said that Preston "would be repeating what
he had said in direct." He denied the motion for continuance.

In closing argument, one of the prosecutors argued that the "truth" as revealed by
the "doctors" showed that Preston's "slick" PET scan images and related testimony were
"hocus pocus." The prosecutor said that the "foundation of the [defendants'] sympathy
and abuse excuse and blame" had come "crashing down" and that they were simply
dragging their "laundry" into court.

Additional facts necessary to resolution of particular legal issues will be discussed
below.
343



P1. SEVERANCE

R. Carr challenges Judge Clark's failure to sever the penalty phase of his trial from
the penalty phase of J. Carr's trial. The failure to sever, R. Carr asserts, violated his
Eighth Amendment to the United States Constitution right to an individualized capital
sentencing determination and requires us to vacate the death sentence on the remaining
capital conviction and remand the case for further proceedings. J. Carr makes at least one
distinct argument in favor of severance of the penalty phase: He asserts the joint trial
inhibited the jury's individualized consideration of him because of family characteristics
tending to demonstrate future dangerousness that he shared with his brother.

Although R. Carr's visible handcuffs are not specified as another source of
prejudice to J. Carr, they also factor into our decision under K.S.A. 2013 Supp. 21-
6619(b). See Deck v. Missouri, 544 U.S. 622, 624, 635, 125 S. Ct. 2007, 161 L. Ed 2d
953 (2005), abrogated on other grounds by Fry v. Pliler, 551 U.S. 112, 127 S. Ct. 2321,
168 L. Ed. 2d 16 (2007) (Constitution forbids use of visible shackles during penalty
phase of capital prosecution, unless justified by essential state interest specific to
defendant on trial; shackling inherently prejudicial; negative effects cannot be shown
from transcript; when court, without adequate justification orders defendant to wear
shackles that will be seen by jury, defendant need not demonstrate actual prejudice to
make out due process violation; State must prove beyond reasonable doubt error did not
contribute to death verdict); see also United State v. Jarvis, 792 F.2d 767, 769-70 (9th
Cir. 1986) (jurors' observation of shackled codefendants in courthouse elevator likely to
be prejudicial to codefendant alleged to be closely affiliated with them); Reynolds v.
Gomez, No. 97-16126, 1998 WL 869908, at *1 (9th Cir. 1998) (unpublished opinion)
(defendant prejudiced by codefendant's unconstitutional shackling; recognizing danger of
guilt by association when prosecution's evidence of codefendants' guilt "inexorably
intertwined").
344




Ultimately, we agree with the defendants that Judge Clark's failure to sever the
penalty phase of their trial was error requiring vacation of their remaining death
sentences and remand to district court.

Both defendants renewed all motions, which included their motions to sever, in the
penalty phase of the prosecution. Judge Clark denied the motions.

In general, during the penalty phase, J. Carr continued the pattern he had set in the
guilt phase by emphasizing that R. Carr was the more culpable actor and a negative
influence in J. Carr's life.

The Eighth Amendment to the United States Constitution requires the jury to make
an individualized sentencing determination. It does not categorically mandate separate
penalty phase proceedings for each codefendant in a death penalty case. United States v.
Tipton, 90 F.3d 861, 892 (4th Cir. 1996) (joint trials in death-eligible cases are not per se
unconstitutional); United States v. Rivera, 363 F. Supp. 2d 814, 823 (E.D. Va. 2005)
("The defendants [in a capital case] have an Eighth Amendment right to an
'individualized determination' of their penalty phase sentence, however, this important
right does not compel an individual penalty phase hearing.").

R. Carr is partially correct when he argues that J. Carr's mitigation evidence
qualified as antagonistic to his mitigation case. See State v. White, 275 Kan. 580, 590, 67
P.3d 138 (2003) (citing State v. Myrick & Nelms, 228 Kan. 406, 416, 616 P.2d 1066
[1980]).

To the extent mitigation evidence on behalf of J. Carr merely proved R. Carr's
criminal history and engagement in a deviant lifestyle that continued at the time of the
345



Birchwood crimes, it was not in conflict with R. Carr's penalty phase case. The jury had
already heard R. Carr's counsel and Donley talk about R. Carr's drug sales during the
guilt phase. Then, in the penalty phase, jurors heard more on these subjects from
witnesses called by R. Carr. Lyons and Cossman testified about his convictions on
various offenses. Woltersdorf testified about R. Carr's diagnosis of anti-social personality
disorder, for which there is no successful treatment protocol, and he had no disagreement
with clinical profiles characterizing R. Carr as a "self-centered and poorly socialized"
individual, "primarily concerned with instant gratification of his immediate wants and
needs." Reidy testified about R. Carr's early affiliation with a gang, his gang-related
fights, his drug-related conflicts, his illegal narcotics use, and his prior arrests.

However, to the extent mitigation evidence on behalf of J. Carr was used by him
to differentiate between his and R. Carr's levels of moral, not legal, culpability for the
killings of Heather M., Aaron S., Brad H., and Jason B., the penalty phase cases of R.
Carr and J. Carr were antagonistic.

Cases in which we have rejected a claim of antagonism attributed to similar
fingerpointing between codefendants over which was the likely principal and which the
likely aider and abettor when neither was exposed to the death penalty—see State v.
Boyd, 281 Kan. 70, 82, 127 P.3d 998 (2006); White, 275 Kan. at 590-91 (citing Myrick,
228 Kan. at 416-17; State v. Sully, 219 Kan. 222, 225, 547 P.2d 344 [1976])—are not
controlling. In fact, they are not even minimally persuasive.

To begin with, we state the obvious: Until a 2013 amendment of the "Hard 50"
statute in response to Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151, 186 L. Ed.
2d 314 (2013), noncapital cases have not required penalty phase trials to juries at all.
Compare K.S.A. 21-4635 with K.S.A. 2013 Supp. 21-6620(b)(2) (requiring separate
sentencing proceeding before jury to determine applicability of "Hard 50" sentence).
346




More important and, perhaps, less obvious: Fingerpointing focused on which of
two codefendants was the principal and which the aider and abettor has absolutely no
bearing on whether a factfinder should find either guilty or not guilty of the crime. A
principal and an aider and abettor are equally culpable under the law. See K.S.A. 2013
Supp. 21-5210 (aider and abettor criminally responsible for crime committed by
principal); State v. Soto, 299 Kan. 102, Syl. ¶ 2, 322 P.3d 334 (2014) ("The Kansas aiding
and abetting statute does not add distinct material elements to the definition of a charged
crime, thus creating alternative means of committing that crime. Rather, the aiding and
abetting statute simply extends criminal responsibility to a person other than the principal
actor.").

Whether a defendant is legally guilty or not guilty under the law is no longer at
issue in the penalty phase of a capital case. But differentiation in the moral culpability of
two defendants can have determinative bearing in a joint trial on whether a juror decides
to show mercy to one while refusing to show mercy to the other. State v. Kleypas, 272
Kan. 894, 1103, 40 P.3d 139 (2001) (mitigating circumstances allow juror to consider
factors that "may be considered as extenuating or reducing the degree of moral
culpability or blame or which justify a sentence of less than death, even though they do
not justify or excuse the offense"; improper for prosecutor to argue certain circumstances
should not be considered as mitigating circumstances because they do not excuse or
justify crime). And mercy from a single juror is all it takes to send a capital defendant to
prison rather than to execution. See State v. Cheever, 295 Kan. 229, 267-68, 284 P.3d
1007 (2012), cert. granted in part 133 S. Ct. 1460 (2013), vacated and remanded, 134 S.
Ct. 596 (2013) (approving instruction on "exercise of mercy" as proper mitigator). Mercy
may overcome even the most obvious imbalance between forceful evidence of
aggravators from the State and a defense mitigation case that is so weak it would not pull
the skin off a rice pudding.
347




Our conclusion that the defendants' penalty phase cases were at least partially
antagonistic to each other is cemented by J. Carr's cross-examination of Temica, the
defendants' sister. That cross-examination elicited Temica's testimony that, during a visit
she made to R. Carr in jail, he admitted to shooting the Birchwood victims. Furthermore,
we are not satisfied that this testimony inevitably would have been admitted in a severed
penalty phase.

Although one may speculate that the State's routine questioning of defense
witnesses who had visited R. Carr in jail about the conversations they had there would
have prompted Temica to give the same testimony in a separate proceeding, one cannot
do better than speculate on this point. On the record before us, it is at least as possible
that the State was completely unaware of R. Carr's admission to Temica until J. Carr's
counsel exposed it in the middle of R. Carr's mitigation case. The State did not put
Temica on the witness stand during its penalty case. It merely followed up during her
cross-examination. Once a skilled lawyer is told what to look for, there is a far greater
likelihood that he or she will find it and exploit it. And Temica's testimony about R.
Carr's admission did not soften so much during her examination by the State—"I believe
I heard him tell me something like that. I don't remember . . . like when he asked me who
he shot and all that, I don't remember who was, you know, shot by who[m]"—that its
probable influence on the jury was neutralized. We have often observed that a confession
is the most persuasive evidence in the State's arsenal. See State v. Yurk, 230 Kan. 516,
519, 638 P.2d 921 (1982) (confession "one of the strongest forms of physical evidence
available to the prosecution"); State v. Watkins, 219 Kan. 81, 90-91, 547 P.2d 810 (1976)
(same). If any juror was inclined to show mercy to R. Carr because of residual doubt, as
R. Carr argues, or because of a belief that J. Carr was the one who fired the black Lorcin
in the soccer field, that juror was much less inclined to do so after Temica's testimony
was introduced by J. Carr's counsel.
348




Such a change in perspective would not have been ameliorated by one of the
prosecutor's three later references during questioning to J. Carr's jailhouse boasts about
being the triggerman—e.g., that he had "lined [the Birchwood victims] up in a ditch and
went . . . pop, pop, pop, in the back of the head." As mentioned, the State never put on
evidence to support the prosecutor's references, and Judge Clark ultimately directed the
jury to disregard them. In addition, we note that one of the statements attributed to J. Carr
by the prosecutor directly implicated R. Carr, not J. Carr, by describing R. Carr's
motivation to rape one of the victims in particularly disgusting and demeaning language.

In addition to focusing on antagonism and the possibility that some of the
evidence introduced by J. Carr was unlikely to come into evidence during a severed
penalty phase, R. Carr argues that J. Carr's mitigation was prone to being used as
improper, nonstatutory aggravating evidence against him.

Again, we are compelled to agree.

Although Judge Clark correctly instructed the jury that each defendant was
entitled to have his sentence decided on the evidence and law applicable to him, and that
"[a]ny evidence in this phase that was limited to only one defendant should not be
considered by you as to the other defendant," this is a rare instance in which our usual
presumption that jurors follow the judge's instructions is defeated by logic. In view of the
defendants' joint upbringing in the maelstrom that was their family and their influence on
and interactions with one another, including testimony that tended to show that R. Carr
was a corrupting influence on J. Carr, the penalty phase evidence simply was not
amenable to orderly separation and analysis. See United States v. Aquart, 3:06CR160,
2010 WL 3211074, at *7 (D. Conn. 2010) (unpublished opinion) (ordering separate,
sequential penalty phase proceedings when jury might view codefendant brother's lesser
349



culpability as reason for concluding defendant more deserving of death penalty;
defendants' plan to call family members to testify about upbringing, character created risk
jury could conclude positive traits of one brother missing from other); see also United
States v. Catalan-Roman, 376 F. Supp. 2d 96, 106 (D.P.R. 2005) (sequential penalty
phase proceedings warranted when one defendant's evidence would show jury how
codefendant more culpable); United States v. Green, 324 F. Supp. 2d 311, 325-26 (D.
Mass. 2004) (penalty phase severed when government asserts same aggravating
circumstance against defendants; defendants likely to argue mitigation by shifting blame
to other; by arguing not as worthy of death as codefendant); cf. Espinosa v. State, 589 So.
2d 887, 894-95 (Fla. 1991), cert. granted, judgment rev'd 505 U.S. 1079, 112 S. Ct. 2926,
120 L. Ed. 2d 854 (1992) (J. Barkett, dissenting) (when defendants presenting
antagonistic defenses, severance should always be rule in penalty phase of capital case).

This inevitable effect was compounded by the fact that the aggravators against
which the evidence must be compared were precisely the same for both defendants. And
similarly, the court's instructions identified the same statutory mitigating circumstances
for both R. Carr and J. Carr.

In short, Judge Clark's refusal to sever the defendants' penalty phase was error that
violated both R. Carr's and J. Carr's Eighth Amendment right to an individualized capital
sentencing determination. Can this error be considered harmless? Satterwhite v. Texas,
486 U.S. 249, 108 S. Ct. 1792, 100 L. Ed. 2d 284 (1988); Clemons v. Mississippi, 494
U.S. 738, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990). We have identified the appropriate
harmless error standard when considering the penalty phase of a capital trial.

"[T]he standard of review and the ultimate question that must be answered with regard to
whether [error] in the penalty phase of a capital trial was harmless is whether the court is
able to find beyond a reasonable doubt that the [error], viewed in the light of the record as
350



a whole, had little, if any, likelihood of changing the jury's ultimate conclusion regarding
the weight of the aggravating and mitigating circumstances." Kleypas, 272 Kan. at 1087-
88.

The test is not whether a death penalty sentence would have been imposed but for the
error; instead the inquiry is whether the death verdict actually rendered in this trial was
surely unattributable to the error. Kleypas, 272 Kan. at 1087-88.

We conclude that R. Carr's Eighth Amendment right to an individualized
sentencing determination was fatally impaired by this failure to sever. The evidence that
was admitted, the especially damning subset of it that may not have been admitted in a
severed proceeding, and the hopelessly tangled interrelationship of the mitigation cases
presented by the defendants persuades us that the jury could not have discharged its duty
to consider only the evidence limited to one defendant as it arrived at their death
sentences. We cannot say that the death verdict was unattributable, at least in part, to this
error.

We therefore order vacation of R. Carr's remaining death sentence and remand to
the district court. If a new penalty phase is conducted, it must be severed from any for J.
Carr and must be tried before a jury that does not also hear J. Carr's penalty phase.

P2. NOTICE OF AGGRAVATING FACTORS

R. Carr moved to bar his penalty phase on the ground that the State failed to give
him constitutionally sufficient notice of the aggravating factors it intended to rely upon to
seek death, despite its compliance with K.S.A. 21-4624(a).

351



Our review of this question of law is unlimited. See Gaudina v. State, 278 Kan.
103, 104, 92 P.3d 574 (2004); State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002).

R. Carr relies on Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d
556 (2002); Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311
(1999); and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000). We have already disposed of this argument unfavorably to his position. See State
v. Scott, 286 Kan. 54, 101-02, 183 P.3d 801 (2008). R. Carr has not brought any new
considerations to our attention that would merit a change of course on this issue.

P3. CHANNELING OF JURY'S DISCRETION

J. Carr has argued in his separate appeal that the four aggravating factors the State
relied upon to pursue the death penalty against him were inadequate to channel the jury's
discretion. We notice this unassigned error in R. Carr's appeal under K.S.A. 2013 Supp.
21-6619(b).

The State alleged the existence of four specific aggravators: that the defendants
knowingly or purposely killed or created a great risk of death to more than one person;
that they committed the crime for themselves or for another for the purpose of receiving
money or any other thing of monetary value; that they committed the crime in order to
avoid or prevent a lawful arrest or prosecution; and that they committed the crime in an
especially heinous, atrocious, or cruel manner. See K.S.A. 2013 Supp. 21-6624(b)
(multiple murder), (c) (monetary gain), (e) (avoidance of arrest, prosecution), and (f)
(especially heinous, atrocious, cruel).

We have rejected the defense arguments advanced here on each of the four
aggravators, when those arguments were made on behalf of other death penalty
352



defendants. See State v. Scott, 286 Kan. at 108-10 (rejecting argument on multiple
murder, monetary gain); State v. Kleypas, 272 Kan. at 1025, 1029 (rejecting argument on
avoidance of arrest; especially heinous, atrocious, cruel). The defense has not given us
cause to revisit these holdings in this case.

P4. UNAVAILABILITY OF TRANSCRIPT OF JURY VIEW

R. Carr argues that the judge's failure to have a court reporter present at the jury
view during the guilt phase of his trial deprived him of an opportunity to make a record
sufficient for meaningful appellate review of his death sentence, violating the Eighth and
Fourteenth Amendments.

"[D]ue process requires a reasonably accurate and complete record of the trial
proceeding in order to allow meaningful and effective appellate review." State v. Holt,
298 Kan. 531, 537, 314 P.3d 870 (2013) (citing Entsminger v. Iowa, 386 U. S. 748, 752,
87 S. Ct. 1402, 18 L. Ed. 2d 501 [1967]; see Kheireddine v. Gonzales, 427 F.3d 80, 84
[1st Cir. 2005]). And, when a claim appears to have a substantial foundation based on the
available record but the claim cannot be reviewed because of the incomplete or
inaccurate transcript, the proper remedy is reversal. Holt, 298 Kan. at 538 (citing United
States v. Wilson, 16 F.3d 1027, 1031 [9th Cir. 1994]).

Still,

"[a] defendant does not have a constitutionally protected right to a totally accurate
transcript of the criminal proceedings. See, e.g., Tedford v. Hepting, 990 F.2d 745, 747
(3d Cir.), cert. denied 510 U.S. 920, 114 S. Ct. 317, 126 L. Ed. 2d 264 (1993); Robinson
v. Smyth, 258 Fed. Appx. 469, 471 (3d Cir. 2007) (unpublished opinion). A record that is
incomplete but that involves no substantial or significant omissions does not require
reversal. See, e.g., United States v. Cashwell, 950 F.2d 699, 703 (11th Cir. 1992); United
353



States v. Selva, 559 F.2d 1303, 1306 n.5 (5th Cir. 1977). Appellants seeking reversal on
the grounds that they are denied due process because of an inaccurate or incomplete
transcript must make the best feasible showing possible that a complete and accurate
transcript might have changed the outcome of the appeal. Ortiz-Salas v. I.N.S., 992 F.2d
105, 106 (7th Cir. 1993); see Al-Ghorbani v. Holder, 585 F.3d 980, 992 (6th Cir. 2009)."
Holt, 298 Kan. at 538.

See State v. Stafford, 223 Kan. 62, 64, 573 P.2d 970 (1977) (inability of State to provide
transcript does not entitle defendant to new trial per se); State v. Jefferson, 204 Kan. 50,
51-52, 460 P.2d 610 (1969) (same; defendant must make good faith effort to obtain
secondary statement of transcript).

As discussed fully in Section 23 of this opinion, R. Carr's substantive jury view
arguments do not lead to relief. There is no claim of misconduct by anyone during the
view and no other claim with a substantial foundation that requires us to know more than
we know now about the view or anything that occurred during it. We are aware of no
effort to construct a substitute for a transcript of the view. See Supreme Court Rule
3.04(a) (2013 Kan. Ct. R. Annot. 23) (procedure to be followed when transcript
unavailable).

Under these circumstances, we cannot conclude that any constitutional violation
has occurred because of the absence of a transcript of the jury view. R. Carr has been
provided a reasonably accurate and complete record of the proceedings against him. That
is what he is entitled to under the United States Constitution.

P5. K.S.A. 21-4624(c)

R. Carr challenges the allowance of hearsay under K.S.A. 21-4624(c) during his
penalty phase trial. He argues that this statute violates the heightened reliability standard
354



applicable to capital cases. See State v. Scott, 286 Kan. at 76 (references to "heightened
scrutiny" applied in capital case); State v. Marsh, 278 Kan. 520, 525, 102 P.3d 445
(2004), rev'd and remanded 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006),
vacated in part 282 Kan. 38, 144 P.3d 48 (2006) ("We begin by observing that there is a
heightened scrutiny of trial proceedings in a capital case.") (citing Beck v. Alabama, 447
U.S. 625, 637-38, 100 S. Ct 2382, 65 L. Ed. 2d 392 [1980]). He also argues that his
constitutional rights were violated by the introduction of hearsay evidence under the
authority of this statute during the penalty phase of his trial.

We briefly address these arguments to provide guidance on remand. R. Carr's
pretrial motion to challenge the constitutionality of the statute was rejected by Judge
Clark.

The Statute and the Standard of Review

K.S.A. 21-4624(c) provides for a relaxed evidentiary standard during the penalty
phase of a capital proceeding:

"In the sentencing proceeding, evidence may be presented concerning any matter
that the court deems relevant to the question of sentence and shall include matters relating
to any of the aggravating circumstances enumerated in K.S.A. 21-4625 and amendments
thereto and any mitigating circumstances. Any such evidence which the court deems to
have probative value may be received regardless of its admissibility under the rules of
evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay
statements. Only such evidence of aggravating circumstances as the state has made
known to the defendant prior to the sentencing proceeding shall be admissible, and no
evidence secured in violation of the constitution of the United States or of the state of
Kansas shall be admissible."
355




"When the application of a statute is challenged on constitutional grounds, this
court exercises an unlimited, de novo standard of review." State v. Cook, 286 Kan. 766,
768, 187 P.3d 1283 (2008) (citing State v. Myers, 260 Kan. 669, 676, 923 P.2d 1024
[1996], cert. denied 521 U.S. 1118 [1997]).

"'"The constitutionality of a statute is presumed. All doubts must be resolved in
favor of its validity, and before the act may be stricken down it must clearly appear that
the statute violates the constitution. In determining constitutionality, it is the court's duty
to uphold a statute under attack rather than defeat it. If there is any reasonable way to
construe the statute as constitutionally valid, that should be done. A statute should not be
stricken down unless the infringement of the superior law is clear beyond reasonable
doubt. [Citations omitted.]"'" State v. Brown, 280 Kan. 898, 899, 127 P.3d 257 (2006).

Heightened Standard of Reliability

R. Carr recognizes that his argument based on the existence of a heightened
standard of reliability in capital cases was rejected in Scott. That holding stands.

In Scott, we addressed defendant Gavin Scott's due process challenge to the
constitutionality of K.S.A. 21-4624(c). 286 Kan. at 99. We rejected it, based on federal
cases holding a similar federal provision constitutional. See 286 Kan. at 100 (citing, e.g.,
United States v. Fell, 360 F.3d 135 [2d Cir. 2004]). The Kansas statute's relaxed standard
of admission was consistent, we said, with the United States Supreme Court's "'all
relevant evidence'" doctrine, which demands "'that the jury have before it all possible
relevant information about the individual defendant whose fate it must determine.'" Scott,
286 Kan. at 100 (quoting Jurek v. Texas, 428 U.S. 262, 276, 96 S. Ct. 2950, 49 L. Ed. 2d
929 [1976]).

356



K.S.A. 21-4624(c), we explained,

"provides for an individualized inquiry, and does not limit the discretion of the sentencer
to consider relevant circumstances offered by the defendant. K.S.A. 21-4624(c) provides
that only relevant evidence is to be admitted, thus assuring the evidence actually has
probative value. Moreover, evidence secured in violation of the United States
Constitution or the Kansas Constitution is inadmissible. Consequently, we conclude the
relaxed evidentiary standard is sufficient to protect the defendant's right to a fair trial and
does not violate either the United States or Kansas Constitutions." Scott, 286 Kan. at 100-
01.

In the words of the Fell opinion upon which we relied in Scott: "[T]he Supreme
Court has . . . made clear that in order to achieve . . . 'heightened reliability,' more
evidence, not less, should be admitted on the presence or absence of aggravating and
mitigating factors . . . . [A relaxed evidentiary standard] does not undermine 'heightened
reliability'[;] it promotes it." Fell, 360 F.3d at 143-44.

R. Carr argues that the statute's relaxed evidentiary standard should apply only to a
capital defendant's mitigating evidence. But his argument is rejected by the authority he
cites to support it. See Gregg v. Georgia, 428 U.S. 153, 203-04, 96 S. Ct. 2909, 49 L. Ed.
2d 859 (1976) (best practice "not to impose restrictions" on State's evidence offered at
presentence hearing, as long as defendant not prejudiced).

Although R. Carr accurately observes that K.S.A. 21-4624(c) lacks any balancing
test to weigh the probative value of information against any prejudice the defendant may
suffer from its admission, a district judge nevertheless continues to fill an inherent role as
"gatekeeper of constitutionally permissible evidence." Fell, 360 F.3d at 145 ("[I]t remains
for the court, in the exercise of its judgment and discretion, to ensure that unconstitutional
357



evidence otherwise admissible under applicable evidentiary rules is excluded from
trial.").

Confrontation Clause

On the Confrontation Clause, R. Carr argues that K.S.A. 21-4624(c) allows
introduction of testimonial hearsay in violation of Crawford v. Washington, 541 U.S. 36,
59, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). In fact, it cannot do so if the federal
Constitution forbids it. Cf. United States v. Cheever, 423 F. Supp. 2d 1181, 1194 (D. Kan.
2006) (federal Constitution superior to federal rule of evidence).

The United States Supreme Court handed down its opinion in Crawford well after
the trial of this case in 2002. See 541 U.S. 36. Crawford held that the Sixth Amendment
bars "'admission of testimonial statements of a witness who did not appear at trial unless
he was unavailable to testify, and the defendant had had a prior opportunity for cross-
examination.'" Davis v. Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 165 L. Ed. 2d
224 (2006) (quoting Crawford, 541 U.S. at 53-54).

Thus the first question before us is whether Crawford's interpretation and
application of the Confrontation Clause reaches the penalty phase of a capital proceeding.
The United States Supreme Court has not yet answered this question. United States v.
Umaña, 750 F.3d 320, 360 (4th Cir. 2014) (Gregory, J., dissenting). Until we have a
definitive answer from that Court, we recognize that other jurisdictions are split and we
accept convincing arguments that confrontation law is applicable to a capital penalty
phase trial. Compare United States v. Fields, 483 F.3d 313, 324-338 (5th Cir. 2007)
(Sixth Amendment confrontation rights do not apply); Szabo v. Walls, 313 F.3d 392, 398
(7th Cir. 2002) (same); Muhammad v. Secretary, Florida Dept. of Corrections, 733 F.3d
1065, 1077 (11th Cir. 2013) (same), cert. denied 134 S. Ct. 893 (2014); Petric v. State,
358



No. CR-09-0386, 2013 WL 598118 (Ala. Crim. App. 2013) (same); State v. Shackelford,
155 Idaho 454, 314 P.3d 136, 142-44, reh. denied (2013) (same); People v. Banks, 237
Ill. 2d 154, 203, 934 N.E.2d 435 (2010) (same); State v. Berget, 2013 S.D. 1, 826 N.W.2d
1, 21, reh. denied (2013) (same), with Vankirk v. State, 2011 Ark. 428, 385 S.W.3d 144
(2011) (Sixth Amendment confrontation rights apply); State v. Rodriguez, 754 N.W.2d
672, 681 (Minn. 2008) (same); State v. Hurt, 208 N.C. App. 1, 19, 702 S.E.2d 82 (2010)
(same) (2012) rev'd, 743 S.E.2d 173 (N.C. 2013); see Note, The Confrontation Clause at
Capital Sentencing: Should Prison Incident Reports Be Admissible in South Carolina, 3
Charleston L. Rev. 739, 742-48 (2009) (detailing split of cases before publication of
article in 2009).

Assuming application of Sixth Amendment confrontation rights in the penalty
phase of a capital proceeding, R. Carr is right to question whether the State's mention of
witness statements recorded in police reports during cross-examination of several defense
witnesses should have been permitted. Out-of-court statements of witnesses to
investigating law enforcement officers introduced to prove the fact of the matter asserted
are textbook testimonial hearsay. See State v. Jones, 287 Kan. 559, 565-66, 197 P.3d 815
(2008) (discussing factors to determine whether hearsay statement testimonial).

It is not a wholly satisfactory response to say that the prosecutor's questions did
not qualify as admitted evidence, that the statements were used only to impeach defense
witnesses, or that the statements were not offered for the truth of the matter asserted.
Inclusion of the statements as an explicit basis for the prosecutor's questions obviously
implies to the jury that they have a basis in fact, regardless of whether the statements
qualify for the label of evidence. But nothing in the record before us demonstrates that
such a basis was ever tested. Any impeachment should only be effective if a sound basis
for the prosecutor's impeaching question exists. And a sound basis exists only if the
statements are true.
359




At any repeat penalty phase hearing on remand, we caution the parties and the
district judge that Kansas now holds that the Sixth Amendment applies in the proceeding
and that out-of-court testimonial hearsay may not be placed before the jury without a
prior opportunity for the defendant to cross-examine the declarant. This includes any
testimonial hearsay referenced in questions posed by counsel.

P6. EXCLUSION OF MITIGATING EVIDENCE

R. Carr challenges Judge Clark's exclusion of evidence of R. Carr's likelihood of
parole and the impact of his execution. We provide guidance on these issues for any
retrial of the penalty phase on remand.

Additional Factual and Procedural Background

R. Carr sought to admit testimony of Bill Miskell, public information officer at the
Kansas Department of Corrections, about the number of prisoners serving a life sentence
who had been paroled and the number who had died in prison. During Miskell's direct
examination, counsel for R. Carr asked about Defendant's Exhibits A-33 and A-34. The
exhibits showed that, in the previous 20 years, 847 offenders had been incarcerated in
Kansas for first-degree or capital murder. Of those, 202 convicted of first-degree murder
had been paroled, and 37 inmates convicted of first-degree murder had died in prison. Of
those paroled, six had been returned to prison on a new felony conviction. The exhibits
also showed that "the average length of time between the admission date and the first
parole eligibility date [was] 16 years[] 11 months and 17 days" and that "[t]he average
length of time between the first parole eligibility date and the release date [was] 11
months and 17 days."

360



The State objected:

"The State believes these letters are objectionable, one, because they contain the hearsay
of [R. Carr's counsel]; and two, because the content . . . is irrelevant . . . . following the
ruling of State v. Kleypas, [272 Kan. 894, 40 P.3d 139 (2001), cert. denied 537 U.S. 834
(2002), abrogated on other grounds by Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516,
165 L. Ed. 2d 429 (2006),] unless it goes to the defendant's individual characteristics."

When asked to explain the purpose of the testimony, R. Carr's counsel stated:

"I wanted to provide the jury with as much information as I could . . . about [the
alternative sentence] . . . . Since Kansas has not had a hard 50 for long enough for a 50-
year sentence to be completed, to actually determine how long a person actually serves
before they see the parole board and eventually are released, averaging out. I thought we
would do a brief historical analogy with the life sentence in Kansas ranging from the 15-
year minimum, which was traditionally what a life sentence meant, up through the 40-
year sentence, which we went to after that, to the 25 and the 50."

After hearing from all counsel, Judge Clark ruled:

"To me the issue is, and what we'll instruct on, unless something changes
between then and now, is that the jury must decide if aggravating circumstances exist.
Then they must decide if those aggravating circumstances they find to exist under the law
outweigh the mitigating circumstances. And in doing that they must look at the individual
being considered in that determination. I do not find relevance in the proffered Exhibits
A-33 or A-34. Objection sustained."

R. Carr also proffered the testimony of Marilyn Scafe, then chair of the Kansas
Parole Board. Scafe would have explained to the jury that the Board looked at seven
statutory requirements to determine whether someone serving a life sentence should be
paroled. According to Scafe, those requirements
361




"encompass the conditions of the crime, the severity of the crime itself, the background
of the offender, taking into consideration their criminal history. It takes into consideration
how they've responded since they've been incarcerated, the programs they've taken, their
discipline reports they have had or haven't had. Then it also considers all of the plans they
have for the future. The parole plan, where they plan to reside, what employment
opportunities there are, their support and their opposition. We also have public comments
which are solicited from the county of conviction, the judge, the—any of the officials, the
judge, the district attorney's office, the sheriff and the police department. And the victim
is notified and we take comments from the victim at that point, too."

Scafe also would have said that a prisoner would not necessarily be paroled on the
date first eligible. In addition, she would have said that, up to that point, the Board had
yet to consider parole for a person sentenced to a hard 25 life sentence.

The State's relevance objection to Scafe's testimony also was sustained.

Judge Clark also excluded certain testimony R. Carr sought to admit from his
sister, Temica. Counsel asked her, "[D]o you have any idea what you would like the jury
to do in regard to Reggie's sentence?" and "How do you think it will affect you if
Reginald Carr is executed?" The State objected to both questions on relevance, and Judge
Clark sustained the objections.

The record contains no proffer of Temica's anticipated answers on the two
questions to which the State successfully objected. R. Carr's brief states without citation
to record support that Temica would have testified about "the value of Reginald's life to
her, and the pain she would suffer should Reginald be executed."

362



Likelihood of Parole

As we have discussed in other sections of this opinion, relevance encompasses
both materiality, reviewed de novo, and probative value, reviewed under an abuse of
discretion standard. See State v. Hilt, 299 Kan. 176, 188-89, 322 P.3d 367 (2014).
Whether the information R. Carr sought to introduce on likelihood of parole was relevant
turns on whether it was probative on the material question of his likelihood of eventual
parole.

In a capital sentencing proceeding, the Eighth and Fourteenth Amendments
require that a capital defendant be allowed to present evidence to the jury of mitigating
factors, and the jury must be permitted to consider "any aspect of a defendant's character
or record and any of the circumstances of the offense that the defendant proffers as a
basis for a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954,
57 L. Ed. 2d 973 (1978); see Abdul-Kabir v. Quarterman, 550 U.S. 233, 127 S. Ct. 1654,
167 L. Ed. 2d 585 (2007); Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed.
2d 256 (1989) abrogated on other grounds Atkins v. Virginia, 536 U.S. 304, 122 S. Ct.
2242, 153 L. Ed. 2d 335 (2002). This requirement to allow evidence that bears on the
defendant individually does not expressly prohibit broader evidence, but we have ruled
that such evidence having to do with general conditions of incarceration may properly be
excluded in a penalty phase of a death penalty case, unless it is designed to counter
evidence from the State that prison life would be easy. Kleypas, 272 Kan. at 1071, 1073.

Neither Miskell's statistical information nor Scafe's testimony about the statutory
rubric for granting parole and the fact that it had not yet been considered for anyone
serving a hard 25 life sentence appeared to have much, if anything, to do with R. Carr
individually. They would have told the jury nothing meaningful about his actual
363



likelihood of being granted parole at some point in the distant future, and thus Judge
Clark's decision to exclude this evidence was not an abuse of discretion.

Execution Impact Testimony

Other jurisdictions that have addressed the admissibility of execution impact
testimony are split.

Three jurisdictions whose cases are cited by both parties do not allow such
testimony. See State v. Dickerson, 395 S.C. 101, 122-23, 716 S.E.2d 895 (2011)
(testimony that defendant's family had already lost two members to homicide; suffering
would be exacerbated by defendant's death); Ross v. State, 954 So. 2d 968, 1012-13
(Miss. 2007) (motion in limine to prevent defendant's family from testifying about impact
death sentence would have properly granted); People v. Armstrong, 183 Ill.2d 130, 154-
55, 700 N.E.2d 960 (1998) (testimony of defendant's sister "regarding the death penalty's
effect on the defendant's family" properly excluded as irrelevant).

Oregon permits admission of such testimony. See State v. Stevens, 319 Or. 573,
879 P.2d 162 (1994). At issue in the Oregon case was whether the defendant's wife could
answer the following question: "Do you have an opinion as to whether it would be better
for [your daughter] if her father lived in prison for the rest of his life without possibility
of parole or died?" 319 Or. at 576. Because the anticipated testimony might be
informative about the defendant's character, it was permissible. 319 Or. at 585.

We agree with the Oregon court that any admitted testimony of this nature needs
to have some bearing on the material question of the defendant's character, i.e., be
probative on that material fact. This principle should be the lodestar for the district judge
conducting any severed penalty proceeding on remand. At this stage, without a proffer of
364



the testimony Temica would have given, see State v. Evans, 275 Kan. 95, 99, 62 P.3d 220
(2003) (proponent of excluded evidence has duty to make known substance of expected
evidence in proffer), we can only prescribe the proper question, not predict its correct
answer.

P7. AGREEMENT OF OTHER EXPERTS

R. Carr argues on appeal that the State's rebuttal expert should not have been able
to testify about witness colleagues' out-of-court agreement with his opinions. We provide
guidance on this issue for any retrial of the penalty phase on remand.

Additional Factual and Procedural Background

The State's rebuttal expert, Pay, was extremely critical of defense expert Preston's
conclusions and the PET scan images upon which Preston had relied. Pay said that the
images failed to show the brain structures Preston had claimed they did, that they used an
odd color reduction, and that they had been manipulated—according to what he was
told—by design. Pay also testified that the scans did not show abnormal brains and that
Preston's conclusions to the contrary were wrong.

Pay also testified that the scans had been performed at Via Christi by a respected
technologist, Susan Stratton, at Preston's direction and in his presence. It was clear from
Pay's testimony that some of the information upon which his criticisms rested had come
from Stratton. When he identified her as the technologist who had performed the scans,
the prosecutor instructed Pay to point her out in the courtroom. After he did so, the
prosecutor asked Dr. Pay:

365



"Q. And you have also been in consultation with other members and colleagues in the
neurological field; is that correct?

"A. Yes.

"Q. In fact, Dr. Flynn is the head of PET scans; is that correct?

"A. Yes.

"Q. And he is in the courtroom today?

"A. Right.

"Q. Raise your hand, Dr. Flynn.
(Dr. Flynn complies)

"Q. And you also have conferred with Dr. Bart Grelinger, who is a neurologist in our
community. Dr. Grelinger, please raise your hand.
(Dr. Grelinger complies).

"Q. So each of these documents was reviewed, looked at, and discussed with regard to
the findings that were apparent; is that right?

"A. Yes."

After Dr. Pay testified that the images had been manipulated, the prosecutor asked
him how. He replied:

"Susan Stratton will attest to this more, but they were manipulated so that the temporal
zones are very markedly—well, they are markedly diminished. You don't see too much of
it and you don't see the cerebellum at all. It's very, very odd."

366



And, again, after testifying that the scans simply missed the brain structures
Preston was targeting, he was asked:

"Q. You came to learn that that was by design?

"A. We were told."

Finally, the prosecutor sought Pay's opinions about Preston's conclusions:

"Q. In fact, if you were to look at all those pictures and you have conferred with other
radiologists and other experts and is there a conclusion as to the function of Jonathan
Carr's brain?

"A. You mean with his interpretation?

"Q. With this.

"[J. Carr's counsel]: Objection to other folks' opinions beside Dr. Pay's, Your
Honor.

"THE COURT: I will overrule the objection.

"Q. You may answer.

"A. Could you repeat the question, please?

"Q. I guess I should, shouldn't I? When you reviewed this and as we talked about the
number of individuals who called in to look, did you reach a consensus as to this
brain being normal?

"A. Yes.

367



"Q. Do you have any quarrel?

"A. No.

"Q. Anybody have a problem with that?

"A. No.

"Q. Now looking at Reginald Carr's, if you would, Doctor. . . . What can you tell us about
Reginald Carr's brain from the documents you have here?

"A. There's normal metabolic function of both temporal lobes.

"Q. And this again is a consensus opinion?

"A. Yes.

"Q. And you concur?

"A. Yes."

During the State's redirect, this exchange occurred:

"Q. The fact of it is that here in Court today are your colleagues that all work in that area
in the different disciplines that worked with you and looked and came to a consensus
on both of these tests?

"A. Yes.

"[R. Carr's counsel]: Objection, Your Honor, leading.

"THE COURT: It does suggest the answer.
368




"Q. Did you confer with colleagues?

"A. Yes, I did.

"Q. Did you reach a conclusion?

"A. Yes.

"Q. Did you reach a consensus?

"A. Yes.

"Q. What is that consensus?

"A. That they're both normal."

On recross-examination by R. Carr's counsel, he asked about the colleagues that
were consulted:

"Q. Dr. Pay, the colleagues that you consulted with are, I assume, the people that do PET
scans? Why aren't they here?

"A. He is here, one of them is here.

"Q. Why didn't he testify?

"A. He could testify for you if you wanted to. He looked at the same scans.

"Q. But you don't read PET scans but you are coming in here giving an opinion about
PET scans; is that correct?

369



"A. Yes."

Confrontation Clause Applicability

Both R. Carr and J. Carr characterize this issue as one arising under the Sixth
Amendment Confrontation Clause and Crawford v. Washington, 541 U.S. 36.

We have already said in Section P5 of this opinion that the Confrontation Clause
should apply in the penalty phase of capital proceedings and controls over any contrary
interpretation or application of K.S.A. 21-4624(c) regarding relaxed evidentiary
standards.

This means that, should the State attempt to admit Pay's testimony about the
agreement of his colleagues again on remand, the controlling question will be whether the
out-of-court statements of agreement by Pay's colleagues qualify as testimonial hearsay
under the Sixth Amendment and Crawford.

P8. SURREBUTTAL TESTIMONY

R. Carr challenges Judge Clark's refusal to allow a brief continuance so that
defense expert Preston could be present during State rebuttal expert Pay's testimony and
then testify in surrebuttal.

Additional Factual and Procedural History

Pay was contacted by the State the day before he was called to the witness stand to
testify in rebuttal about Preston's PET scan evidence. Neither Pay nor the State had
370



provided the defense with an expert report or any summary of Pay's anticipated
testimony.

The defense initially sought a continuance so that Preston could return to the
courtroom before Pay's testimony began. Judge Clark was unwilling to grant such a
continuance. He commented:

"If Dr. Preston is coming to say what he did was right, he has already said that.
And he has explained why he did the color and he explained why he made the cut . . . .
Sounds like experts disagreeing. If that is what it is Dr. Preston has to say, I don't think it
is surrebuttal. I think it's evidence presented in direct, not rebutted."

Although additional discussion followed, Judge Clark remained unwilling to grant
a continuance. His decision was based on the idea that Preston could properly testify in
surrebuttal only if he said something new. If, instead, the defense intended to have him
explain to the jury what he did, why he did it, and why what he did was not deceitful or
deceptive, the testimony would not be proper surrebuttal.

Judge Clark did allow time for defense counsel to interview Pay before cross-
examining him before the jury. He also told counsel: "Then what I will let you do is use
my telephone and call Dr. Preston. Ask him what he would say to these questions and I
will revisit whether or not to wait until that time. We won't shut everything down until I
make that final decision."

Although the record is not crystal clear on the amount of time the defense needed
to bring Preston back to court, we see that Pay testified on the morning of November 13,
more than 2 months after the trial started with jury selection on September 9. As late as
"lunchtime"—the precise time is not in the record, but court recessed for lunch after
371



hearing the parties on this matter—counsel for the defense told Judge Clark that Preston
could be back to testify in surrebuttal by 3:30 p.m.

Ultimately, Judge Clark denied the defense request to have Preston return and
testify.

During closing argument, the State referred to Preston's support for the defendants'
abnormal mental processes as a "house of cards" that came crashing down under the
weight of Pay's testimony; the prosecutor repeatedly emphasized a theme in which
Preston's testimony was nothing more than "hocus pocus."

Denial of Continuance and Surrebuttal

The use and extent of rebuttal and surrebuttal rests in the sound discretion of the
district judge, and his or her ruling will not be reversed unless the discretion has been
abused to a party's prejudice. State v. Martin, 237 Kan. 285, 291-92, 699 P.2d 486
(1985). In addition, we review denial of a continuance for abuse of discretion. See State
v. Haney, 299 Kan. 256, ___, 323 P.3d 164 (2014); State v. Cook, 281 Kan. 961, 986, 135
P.3d 1147 (2006).

As we have said in other sections of this opinion, discretion is abused if its
exercise has relied on an incorrect legal standard. See State v. Ward, 292 Kan. 541, 550,
256 P.3d 801 (2011) (citing Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1 (2010).

The rules regarding rebuttal evidence were set out in State v Martin:

"'Rebuttal evidence is that which contradicts evidence introduced by an opposing
party. It may tend to corroborate evidence of a party who first presented evidence on the
372



particular issue, or it may refute or deny some affirmative fact which an opposing party
has attempted to prove. It may be used to explain, repel, counteract or disprove testimony
or facts introduced by or on behalf of the adverse party. Such evidence includes not only
testimony which contradicts the witnesses on the opposite side, but also corroborates
previous testimony.'" 237 Kan. at 291-92 (quoting State v. Weigel, 228 Kan. 194, Syl. ¶
9, 612 P.2d 636 [1980]).

In this case, Judge Clark insisted that the defense must produce something new
through any surrebuttal testimony from Preston. The State continues to hew to this
standard in its briefs to this court. But there is no inflexible legal requirement that rebuttal
or surrebuttal evidence be new. It may be evidence that is used to explain or counteract or
simply corroborate previous testimony. Judge Clark abused his discretion on the
allowance of surrebuttal and the continuance to facilitate it by exercising his discretion on
the basis of a legal error. See Ward, 292 Kan. at 550 (citing Gonzalez, 290 Kan. at 755-
56.

Moreover, even if newness had been a valid legal requirement, Preston should
have been permitted to retake the stand to defend his methods against suggestions by Pay
and the State that he had deliberately misled the jury. It is hard to imagine a situation in
which the allowance of surrebuttal would be more sensible and its denial more arbitrary.
Judge Clark also abused his discretion because no reasonable person presiding over a
death penalty case that had been in court for more than 2 months would have agreed with
his decision to disallow surrebuttal requiring a delay of, at most, a couple of hours. See
Ward, 292 Kan. at 550 (citing Gonzalez, 290 Kan. at 755-56). We need not discuss
harmlessness because of the prior necessity of remand.

373



P9. SENTENCING ON NONCAPITAL CONVICTIONS

R. Carr argues that sentencing on his noncapital convictions should have preceded
the penalty phase on his capital convictions and that the jury should have been informed
of the exact sentence he would serve if he were not sentenced to death.

The first argument is likely to be moot, because, on remand, R. Carr's sentencing
on his remaining noncapital convictions will already have occurred. The terms handed
down on those convictions have not been appealed.

We briefly discuss the second question on whether a capital sentencing jury must
be told the exact sentence a defendant will serve if not sentenced to death, because we
wish to provide guidance to the district judge on remand.

The defendants filed an unsuccessful joint pretrial motion to have Judge Clark
determine and then inform the jury of the exact duration of their sentences, should the
jury not return the death penalty. At the instructions conference, J. Carr's counsel
renewed the argument, asserting that the jury should be informed "with as much
exactitude as possible" of the sentence his client could expect to receive if not sentenced
to death. R. Carr's counsel joined in that argument.

Judge Clark instead included the following in his penalty phase instructions to the
jury:

"Should the responsibility to fix a proper sentence in all counts—to include the
first four (Capital Murder) fall to me, you are instructed that the total sentence would be
such that the individual defendant would not be eligible to appear before The Parole
Board for a certain period of time. The period would be a minimum of 50 years and a
maximum of 268 years. It is for the court to decide."
374




R. Carr argues that the exact length of his sentences if no death penalty were
imposed had to be shared with the jury under the Eighth and Fourteenth Amendments and
Section 9 of the Kansas Constitution Bill of Rights, because the length of the sentences
qualified as mitigating. Under Kansas law, the list of statutory mitigating facts includes
the following: "A term of imprisonment is sufficient to defend and protect the people's
safety from the defendant." K.S.A. 21-4626(9).

The defense relies on the United States Supreme Court's decision in Simmons v.
South Carolina, 512 U.S. 154, 114 S. Ct. 2187, 129 L. Ed. 2d 133 (1994), and on our
decision in Kleypas, 272 Kan. 894, 1080, 40 P.3d 139 (2001).

In Simmons, the Court specifically addressed whether a capital defendant's due
process rights required his sentencing jury to be informed that he would be ineligible for
parole, when the State had used the defendant's future dangerousness as an aggravating
circumstance. According to the plurality decision, the prosecution had argued that "a
verdict for death would be 'a response of society to someone who is a threat. Your verdict
w[ould] be an act of self-defense.'" Simmons, 512 U.S. at 157. The defense had asked the
trial judge to clarify for the jury that "life imprisonment" would mean no possibility of
parole, but the judge refused. Then, during deliberations, the jury sent out a question on
exactly that topic: "Does the imposition of a life sentence carry with it the possibility of
parole?" 512 U.S. at 160. The judge responded:

"'You are instructed not to consider parole or parole eligibility in reaching your verdict.
Do not consider parole or parole eligibility. That is not a proper issue for your
consideration. The terms life imprisonment and death sentence are to be understood in
their plan [sic] and ordinary meaning.'" 512 U.S. at 160.

375



The plurality held that the defense was entitled to inform the jury of the
defendant's parole ineligibility. 512 U.S. at 171. "The Due Process Clause does not allow
the execution of a person 'on the basis of information which he had no opportunity to
deny or explain.'" 512 U.S. at 161.

"In assessing future dangerousness, the actual duration of the defendant's prison
sentence is indisputably relevant. Holding all other factors constant, it is entirely
reasonable for a sentencing jury to view a defendant who is eligible for parole as a greater
threat to society than a defendant who is not. Indeed, there may be no greater assurance
of a defendant's future nondangerousness to the public than the fact that he never will be
released on parole. The trial court's refusal to apprise the jury of information so crucial to
its sentencing determination, particularly when the prosecution alluded to the defendant's
future dangerousness in its argument to the jury, cannot be reconciled with our well-
established precedents interpreting the Due Process Clause." 512 U.S. at 163-64.

In a concurring opinion, Justice Sandra Day O'Connor noted that "[i]n a State in
which parole is available, the Constitution does not require (or preclude) jury
consideration of that fact," and that "[t]he decision whether or not to inform the jury of
the possibility of early release is generally left to the States." 512 U.S. at 176 (O'Connor,
J., concurring) (citing California v. Ramos, 463 U.S. 992, 1013-14, 103 S. Ct. 3446, 77 L.
Ed. 2d 1171 [1983]).

In this case, the judge's decision not to inform the jury of R. Carr's exact sentences
in the event of no capital sentences did not deprive him of the opportunity to argue that a
term of imprisonment was sufficient to protect the public, i.e., was mitigating. In fact, R.
Carr's counsel argued exactly that point during closing:

"Reggie is going to be incarcerated. He will be put in prison basically forever. He is
going to be caged up. And Reggie needs to be caged up with the lions in the penitentiary,
so all of us rabbits will be safe. That's not going to be a problem with us . . . . By the time
376



he is first eligible to see the parole board, if he gets the minimum sentence he can
possibly get, his oldest son will be older than Val Wachtel over there. That's how long he
is going to be in the penitentiary. He is actually going to be in there forever. He is never
going to be able to walk out and get in his car and drive off."

The situation here was completely different from that before the Simmons Court.
In Simmons, the jury was prevented from considering the clearly mitigating fact that the
defendant would never be paroled. R. Carr's jury was not only told his shortest possible
sentence, 50 years, a length likely to be mitigating in and of itself, but the possibility that
he would face more than five times that long in prison, 268 years or more. Jurors also
heard his counsel draw the sensible conclusion that his client would never leave prison
alive. On this record, we conclude that Simmons did not demand more than R. Carr
received in Judge Clark's jury instruction.

Our own decision in Kleypas, 272 Kan. at 1080, gives us a bit more pause.

In that case, we ruled that defense counsel's refusal of the district judge's offer to
instruct on the possibility of a life sentence with initial parole eligibility at either 25 or 40
years meant that any error based on the absence of that instruction was invited. 272 Kan.
at 1080. We also ruled that the district judge's failure to instruct sua sponte on the
sentences the defendant would receive for his other felony convictions was not error. 272
Kan. at 1080-81. We rejected the notion that the Eighth Amendment required a system
"in which the court is required to instruct on the potential sentences a defendant will
receive for convictions arising from the same trial as the capital-murder conviction." 272
Kan. at 1081.

Still, we set a somewhat higher bar for a district judge to meet on instructions
about a capital defendant's potential term of imprisonment in future cases:
377




"In the absence of a request, the trial court has no duty to inform the jury in a
capital murder case of the term of imprisonment to which a defendant would be
sentenced if death were not imposed. Where such an instruction is requested, the trial
court must provide the jury with the alternative number of years that a defendant would
be required to serve in prison if not sentenced to death. Additionally, where a defendant
has been found guilty of charges in addition to capital murder, the trial court upon request
must provide the jury with the possible terms of imprisonment for each additional charge
and advise the jury that the determination of whether such other sentences shall be served
consecutively or concurrently to each other and the sentence for the murder conviction is
a matter committed to the sound discretion of the trial court." 272 Kan. at 1081-82.

Kleypas was decided in 2001. The trial in this case was held in 2002. The only
portions of the express language of the Kleypas future directive from which Judge Clark
deviated were its requirement that the jury instruction contain information on possible
terms of imprisonment "for each additional charge" and a statement that the judge would
be responsible for deciding whether sentences were consecutive or concurrent with each
other. Apparently Judge Clark did rely on the possible terms of imprisonment for each
additional charge and concurrent or consecutive status when he gave the jury the
combined range of initial parole eligibility from 50 to 268 years.

We would not regard either omission or the omissions together as particularly
serious. Judge Clark's instruction did not pose a reasonable likelihood that the jury failed
to consider constitutionally relevant evidence in mitigation. However, because it is
possible on remand for any district judge presiding over a new, severed penalty phase to
give precise information on the unappealed sentences already handed down on R. Carr's
noncapital convictions, as well as the sentence he will be subject to on his remaining
capital conviction if he does not receive the death penalty, it seems wise to do so. We see
no reason to keep that information, if available, from the jury, unless the defense objects.
378



The provision of adequate societal protection through service of a specific long prison
sentence is a statutory mitigator under Kansas law, and the judge should enable the
ability of R. Carr's counsel to fully argue its application.

P10. BURDEN OF PROOF ON MITIGATING FACTORS

R. Carr has argued that the instructions in his penalty phase were fatally flawed
because they failed to tell the jury that mitigating factors need not be proved beyond a
reasonable doubt. Because this issue may arise again on remand, we provide the
following brief guidance to the district judge.

The State acknowledges that the trial court did not expressly instruct the jury on
the burden of proof for mitigating circumstances. The aggravating circumstances
instruction and the verdict forms informed the jury specifically that the State was
required to prove aggravating circumstances beyond a reasonable doubt.

In Kansas, a district judge must instruct a penalty phase jury in a capital case not
only that it need not be unanimous on the existence of a mitigating circumstance but also
that a mitigating circumstance need not be proved beyond a reasonable doubt. See State
v. Gleason, No. 97,296, 299 Kan. ___, ___ P.3d ___ (filed July 18, 2014) (slip op. at 82-
86) (discussing Scott, 286 Kan. at 106-07; Kleypas, 272 Kan. at 1078); see also K.S.A.
21-4624 (State expressly burdened with proving existence of aggravating circumstance
beyond reasonable doubt; statute silent on standard of proof on mitigating circumstance).
When nothing in the instructions mentions any burden other than "beyond a reasonable
doubt," jurors may be "prevented from giving meaningful effect or a reasoned moral
response to" mitigating evidence, implicating a defendant's right to individualized
sentencing under the Eighth Amendment. Gleason, 299 Kan. at ___ (slip op. at 85)
(citing Scott, 286 Kan. at 107). This is unacceptable.
379




Were we not already vacating R. Carr's death sentence on Count 2 and remanding
the case because of Judge Clark's failure to sever the penalty phase, error on this issue
would have forced us to do so. See Gleason, 299 Kan. at ___ (slip op. at 85). In any new
penalty phase on remand, the district judge must ensure that jurors understand that
mitigating circumstances need not be proved beyond a reasonable doubt.

P11. "THE CRIME" IN AGGRAVATING CIRCUMSTANCES INSTRUCTION

R. Carr argues that a reference to "the crime" in the instruction on his aggravating
circumstances was too vague and may have led the jury to rely on his conviction of a
crime other than capital murder to find the existence of an aggravating circumstance. We
address the merits of this issue to provide guidance on remand.

Additional Factual and Procedural Background

In Instruction No. 5, Judge Clark identified the aggravating circumstances in issue
for R. Carr. The parts of this instruction pertinent to this issue said that the State sought to
prove R. Carr committed "the crime" for monetary gain; to evade arrest; and in a heinous,
atrocious, or cruel manner.

After the close of evidence in the penalty phase, Judge Clark made a few
introductory comments before instructing the jury. Among other things, he explained:

"As you know, our focus here is on the first four counts, those are the capital murder
counts.

"It is the responsibility of the jury to decide the proper sentence for the individual
defendants in those four counts . . . . It is my responsibility to decide on the proper
380



sentence for the individual defendant on all other counts in which you returned a verdict
of guilty."

The opening penalty phase instruction also emphasized that the jury sentencing
responsibility arose out of its earlier guilty verdicts on capital murder:

"The laws of Kansas provide that a separate sentencing proceeding shall be conducted
when a defendant has been found guilty of capital murder to determine whether the
defendant shall be sentenced to death. At the hearing, the trial jury shall consider
aggravating or mitigating circumstances relevant to the question of the sentence."

In Instruction No. 9, Judge Clark told the jury to mark the verdict form to coincide
with its sentencing decision. He said that jurors had "been provided verdict forms which
provide for three alternative verdicts in each of the four counts of Capital Murder." Each
verdict form also referenced the capital murder counts and made no mention of any other
offense.

During the State's closing, the prosecutor reminded the jury to consider all of the
guilt phase evidence relevant to the capital murder charges:

"If you recall at the conclusion of the case after the jury's verdict came out, what
our position was, was to adopt all of those days of testimony, everything you heard in that
Court, and give it to you in this phase saying that the body of the crime, that information
should be and can be reconsidered in these aggravating factors, as they would apply to
the capital death of Jason [B.] and Aaron [S.], Brad [H.], and Heather [M.]."

Then the prosecutor discussed the aggravating circumstances instructions, including
Instruction No. 5, explaining that aggravating circumstances were those facts and
circumstances that enhanced the crime of capital murder:

381



"In a legal sense, the Court explained that aggravating circumstances are those that
increase the guilt or enormity of the crime or add to its injurious consequences but which
are above and beyond the crime itself. And you know that the crime of capital murder
has been found.

"Now you look at the circumstances that would enhance those crimes from the
perspective of a rational[], thinking jury to say . . . these aggravators make that crime
even worse. And that is what an aggravator is. So we point specifically, we point to each
defendant, two defendants, two brothers, two culprits, two criminals, two individuals all
found to be culpable of capital murders of four people." (Emphasis added.)

The State never mentioned the Schreiber and Walenta incidents in its closing,
concentrating only on the reasons the capital murders and aggravating circumstances
justified death verdicts.

References to "The Crime"

There is some question about the correct standard of review for an alleged error in
penalty phase instructions in a capital case that was never raised before the district court.

As discussed in other sections of this opinion, in the ordinary criminal case and in
the guilt phase of a capital prosecution, reviewability and reversibility of an alleged jury
instruction error not raised below are governed by K.S.A. 22-3414(3). We have not
previously discussed in detail how that standard meshes with the "constitutional
standard" for instruction error set out in United States Supreme Court cases—whether
there is a reasonable likelihood that the jury applied the challenged instruction in a way
that violated the Constitution. See Jones v. United States, 527 U.S. 373, 389-90, 119 S.
Ct. 2090, 144 L. Ed. 2d 370 (1999); Victor v. Nebraska, 511 U.S. 1, 6, 114 S. Ct. 1239,
127 L.Ed.2d 583 (1994); Estelle v. McGuire, 502 U.S. 62, 72, 112 S. Ct. 475, 116
L.Ed.2d 385 (1991); Boyde v. California, 494 U.S. 370, 110 S. Ct. 1190, 108 L.Ed.2d
382



316 (1990). But we have relied on the "constitutional standard." State v. Scott, 286 Kan.
54, 183 P.3d 801 (2008); see also State v. Gleason, 299 Kan. at ___, (slip op. at 78). The
issue in Scott had surfaced in the district court, but our Gleason opinion assumed
applicability of the constitutional standard without discussing any potential overlap of the
"clearly erroneous" language of K.S.A. 22-3414(3).

We need only raise, not settle, this standard of review issue today in order to
provide the guidance needed for the district judge who must handle this case on remand.
He or she will be trying to avoid error in the first place. And, regardless of the applicable
standard of review, an earlier statement from this court in Scott and an opinion from a
panel of the United States Court of Appeals for the Tenth Circuit should help him or her
to do that.

Although Scott did not decide the issue raised in this case, it did say that it was
"inadvisable" for an aggravating circumstances instruction to refer to a generic crime
rather than capital murder. 286 Kan. at 114. Likewise, in United States v. Chanthadara,
230 F.3d 1237, 1263-64 (10th Cir. 2000), the court said that it must be clear to a jury
applying the Federal Death Penalty Act that the aggravating circumstance of pecuniary
gain must flow from the victim's death, not an underlying felony.

Highly summarized, the motto on remand for drafting of the aggravating
circumstances instruction should be: Caution Through Unmistakable Clarity. Given all
of the clarification provided by the judge and by the prosecutor's closing argument here,
we may ultimately have been able to determine that any error was not reversible under
the governing standard of review, but the risk of reversal on this issue can easily be
eliminated when this case returns to district court.

383



P12. INSTRUCTION ON ROLE OF MERCY

R. Carr argues that Judge Clark erred by defining mercy as a mitigating factor and
linking it with sympathy for the defense, rather than conveying to the jury that mercy is
"an impulse that comes from the grantor, regardless of whether the recipient deserves it."
We briefly address this issue to provide guidance on remand.

The mitigating circumstances instruction in this case included the following on the
role of mercy in the jury's deliberations:

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

"In this proceeding, you may consider sympathy for a defendant. The
appropriateness of exercising mercy can itself be a mitigating factor in determining
whether the State has proved beyond a reasonable doubt that the death penalty should be
imposed."

R. Carr argues that Judge Clark should have instead told jurors that they could
"recommend mercy for the Defendant and sentence him to life imprisonment," regardless
of whether mitigating circumstances outweighed aggravating circumstances. He did not
raise this issue in the district court.

As noted in the previous section of this opinion, the intersection of the "clearly
erroneous" language we apply in other contexts and the "constitutional standard" that has
been applied to instruction challenges arising out of penalty phases in capital cases is
unclear. See State v. Scott, 286 Kan. 54.

384



Again, we need not settle the issue today to dispose of this issue. Rather, we
adhere to our precedent rejecting the argument that equating mercy to a mitigating factor
is error at all. See Kleypas, 272 Kan. at 1035-36 (mercy instruction per se simply not
required by federal, state law; nor is specific type of mercy instruction); see also State v.
Cheever, 295 Kan. 229, 268, 284 P.3d 1007 (2012), cert. granted in part 133 S. Ct. 1460
(2013), and vacated and remanded 134 S. Ct. 596 (2013); Scott, 286 Kan. at 99. R. Carr's
assertion that we have already moved away from this precedent in State v. Marsh, 278
Kan. 520, 102 P.3d 445 (2004), rev'd and remanded 548 U.S. 163 (2006), and vacated in
part 282 Kan. 38, 144 P.3d 48 (2006), is without merit.

P13. VERDICT FORMS INSTRUCTION

In his separate appeal, J. Carr takes issue with the wording of the verdict forms
instruction, No. 10, when read in combination with the wording of the Verdict Form (3).
He argues that these elements of Judge Clark's instructions did not prepare jurors for a
situation in which they were unanimous on the existence of one or more aggravating
circumstances but were unable to agree upon whether mitigators outweighed the
aggravators.

We notice this unassigned error on behalf of R. Carr under the authority of K.S.A.
2013 Supp. 21-6619(b).

Additional Factual and Procedural Background

The focal point of this issue is the third paragraph of Instruction No. 10, when
combined with the verdict form for the jury's third option.

385



The first three paragraphs of the instruction, which informed the jury about the use
of the three verdict form options they were given for each capital count, read:

"When considering an individual defendant, if you find unanimously beyond a
reasonable doubt that there are one or more aggravating circumstances and that they
outweigh mitigating circumstances found to exist, then you shall impose a sentence of
death. If you sentence the particular defendant to death, you must designate upon the
appropriate verdict form with particularity the aggravating circumstances which you
unanimously find beyond a reasonable doubt. That is Verdict Form (1).

"If you find that the evidence does not prove any of the claimed aggravating
circumstances beyond a reasonable doubt, your presiding juror should mark the
appropriate verdict form. That is Verdict Form (2). The court will fix a proper sentence
for the particular defendant.

"If one or more jurors is not persuaded beyond a reasonable doubt that
aggravating circumstances exist or that those found to exist do not outweigh mitigating
circumstances, then you should sign the appropriate alternative verdict form indicating
the jury is unable to reach a unanimous verdict sentencing the defendant to death. That is
Verdict Form (3). In that event, the court will fix a proper sentence for the particular
defendant."

Verdict Form (3) was the same for each victim of capital murder. For Heather M.
as the victim and R. Carr as the convicted defendant, it read:

"VERDICT FORM (3)
COUNT ONE (I)
CAPITAL MURDER
HEATHER [M.]

386



As to . . ., Capital Murder of Heather [M.], we the jury being duly sworn upon
oath state that we are unable to reach a unanimous verdict sentencing the defendant,
Reginald D. Carr, Jr., to death.

(PLEASE INDICATE BY X IN THE BLANK SPACE)

______A. We are not able to agree unanimously that the evidence proves an
aggravated circumstance exists.
______B. We are not able to agree that the aggravated circumstance(s) that were
proved to exist outweighs the mitigating circumstance(s) shown to exist
by the evidence.

Date: ___________________________ _____________________________
Presiding Juror"

Neither R. Carr nor J. Carr objected to Instruction No.10 or Verdict Form (3) at
trial.

Adequacy of Instruction No. 10 and Verdict Form (3)

The State maintains that the clearly erroneous standard of K.S.A. 21-3414(3)
should apply when we review an allegation of instruction error in the penalty phase of a
capital case. See State v. Kleypas, 272 Kan. 894, 909, 939, 40 P.3d 139 (2001) (clearly
erroneous standard governs in guilt phase of capital case). J. Carr's brief instead invokes
the standard set out by the United States Supreme Court in Boyde v. California, 494 U.S.
370, 110 S. Ct. 1190, 108 L.Ed.2d 316 (1990): "The claim is that the instruction is
ambiguous and therefore subject to an erroneous interpretation. We think the proper
inquiry in such a case is whether there is a reasonable likelihood that the jury has applied
the challenged instruction in a way that prevents the consideration of constitutionally
relevant evidence." 494 U.S. at 380.
387




We employed the Boyde standard plus the traditional Kansas non-clearly
erroneous jury instruction review standard in State v. Scott, 286 Kan. 54, 183 P.3d 801
(2008):

"In considering a claim that a jury instruction in the penalty phase of a capital
trial prevented the jury from giving proper consideration to mitigating evidence, our
standard of review is "whether there is a reasonable likelihood that the jury has applied
the challenged instruction in a way that prevents the consideration of constitutionally
relevant evidence." Boyde v. California, 494 U.S. 370, 380, 110 S. Ct. 1190, 108 L. Ed.
2d 316 (1990). However, we consider the instructions as a whole and do not isolate any
one instruction. Even if erroneous in some way, instructions do not result in reversible
error if they properly and fairly state the law as applied to the facts of the case and could
not reasonably have misled the jury. State v. Edgar, 281 Kan. 47, 54, 127 P.3d 1016
(2006)." 286 Kan. at 104-05.

But, as mentioned in Section 11 of this opinion, Scott did not involve a situation in which
the jury instruction issue had not been raised in the district court.

Again, as in Sections 11 and 12 of this opinion, we need not traverse the thicket
created by the overlap of clearly erroneous review and Boyde review today. The choice of
standard of review on this issue is not outcome-determinative, and our purpose is to assist
the district court in avoiding error on remand. We therefore concentrate on whether there
was error at all, rather than on whether any error would have qualified as reversible.

As discussed, under the Eighth and Fourteenth Amendments, a capital defendant
must be allowed to put before the jury his evidence of mitigating factors; the jury must be
allowed to consider and weigh relevant mitigating evidence; and the jury must have a
method by which it can give effect to its consideration. The question before us is whether
Instruction No. 10 and Verdict Form (3) were so confusing and misleading that the
388



defendants' jury was deprived of a meaningful method of giving effect to mitigating
evidence.

The first and second paragraphs of Instruction No. 10 covered what were, in
essence, the "all" or "nothing" choices before the jury. In Kleypas, 272 Kan. at 1060-61,
we said that K.S.A. 21-4624 contemplated only two options: Either (1) The jury would
agree unanimously and beyond a reasonable doubt that one or more aggravating
circumstances existed and that such aggravating circumstance or circumstances
outweighed the mitigating circumstance or circumstances found to exist, meaning it
would sentence the defendant to death; or (2) the jury would not unanimously find
aggravating circumstances outweighed mitigating circumstances.

Verdict Forms (1) and (2) were consistent with the "all" and "nothing" options. It
was clear that Verdict Form (1) was to be used when the jury unanimously found the
existence of an aggravating circumstance or circumstances and that the aggravating
circumstance or circumstances outweighed any mitigators. Verdict Form (2) was to be
used when the jury found no aggravators existed. It was clear that, in such a situation,
there was no need for the jury to reach the next step, weighing of aggravators and
mitigators.

Verdict form (3) staked out the middle ground—when jurors agreed unanimously
that an aggravating circumstance or circumstances existed but could not agree
unanimously on whether mitigators outweighed aggravators. But what was fairly clear in
this verdict form was garbled in the third paragraph of Instruction No. 10, which we
repeat here for ease of reference:

"If one or more jurors is not persuaded beyond a reasonable doubt that
aggravating circumstances exist or that those found to exist do not outweigh mitigating
389



circumstances, then you should sign the appropriate alternative verdict form indicating
the jury is unable to reach a unanimous verdict sentencing the defendant to death."
(Emphasis added.)

The italicized portion of the instruction is simply wrong because it contains an
extra "not" that reverses the meaning of the condition precedent to use of Verdict Form
(3). Under the controlling law at the time of defendant's trial, the correct italicized portion
should have read "or that those found to exist outweigh mitigating circumstances."

This error may or may not have met the threshold for reversal under either K.S.A.
21-3414(3) or the Boyde standard. It does not matter. What matters is that it can, and
should, be easily corrected on remand.

P14. DEFENDANT'S AGE OF 18 OR OLDER AT TIME OF CAPITAL CRIME

After briefs were filed in this case, R. Carr sought and received permission to file
a supplemental brief based on this court's decision in State v. Cheever, 295 Kan. 229,
265, 284 P.3d 1007 (2012) (Jessica's Law precedent on necessity of instruction that jury
find defendant's age of 18 or older at time of crime may apply in capital case penalty
phase), cert. granted in part 133 S. Ct. 1460 (2013) and vacated and remanded, 134 S.
Ct. 596 (2013). He asserted that Judge Clark erred by failing to instruct the jury it must
find beyond a reasonable doubt that the defendants were 18 years old or older at the time
of the capital murders, in order for the death penalty to apply. The State filed a responsive
brief.

As in Cheever, we need not reach the merits of this issue today. Now that the State
is aware of this potential appellate issue, it is highly unlikely that it will permit the jury in
390



any new, severed penalty phase to begin deliberations without an instruction on R. Carr's
age at the time of the quadruple homicide.

P15. NO-ADVERSE-INFERENCE INSTRUCTION

R. Carr sought a no-adverse-inference instruction, which, when given in a guilt
phase of a criminal prosecution at the time of the trial, would have provided:

"A defendant in a criminal trial has a constitutional right not to be compelled to
testify. You must not draw any inference of guilt from the fact that the defendant did not
testify, and you must not consider this fact in arriving at your verdict." PIK Crim. 3d
52.13.

J. Carr opposed the instruction, and Judge Clark did not give it.

The giving of such an instruction, if requested in a penalty phase, has been
required in at least three of our sister jurisdictions and has been described as the wisest
course in a fourth.

In State v. Storey, 986 S.W.2d 462, 463-64 (Mo. 1999) (en banc), the Missouri
Supreme Court reasoned:

"The privilege against self-incrimination guarantees the right to remain silent and
the right not to have adverse inferences drawn from exercising the privilege. U.S. Const.
amend. V; Mo. Const. art. I, sec. 19; Carter v. Kentucky, 450 U.S. 288, 305, 101 S. Ct.
1112, 1121, 67 L. Ed. 2d 241 (1981). '[T]he Fifth Amendment requires that a criminal
trial judge must give a "no-adverse-inference" jury instruction when requested by a
defendant to do so.' Carter, 450 U.S. at 300. There is 'no basis to distinguish between the
guilt and penalty phases of [a] capital murder trial so far as the protection of the Fifth
Amendment privilege is concerned.' Estelle v. Smith, 451 U.S. 454, 462-63, 101 S. Ct.
391



1866, 1872-73, 68 L. Ed. 2d 359 (1981). Therefore, when a defendant does not testify in
the penalty phase of a capital murder trial, the court must give a 'no-adverse-inference'
instruction if the defendant so requests."

See State v. Munn, 56 S.W.3d 486, 501-02 (Tenn. 2001) (right against self-incrimination
"so fundamental that [it] should be protected at all stages of criminal process"; criminal
defendant has constitutional right to no-adverse-inference instruction during penalty
phase when properly requested); Burns v. State, 699 So. 2d 646, 651 (Fla. 1997) (right
against self-incrimination continues through sentencing phase of capital murder trial;
failure to give requested no-adverse-inference instruction subject to harmless error
analysis); see also State v. Arther, 290 S.C. 291, 298, 350 S.E.2d 187 (1986) (absent
request, failure to give instruction not reversible error; but "better course is to give a no
adverse inference charge in both the guilty and penalty phases of a capital trial").

However, the United States Supreme Court has recently held that such a rule is not
so clearly established by its precedent. See White v. Woodall, ___ U.S. ___, 134 S. Ct.
1697, 1703, 188 L. Ed. 2d 698 (2014) (state court's refusal to give no-adverse-inference
instruction did not warrant federal habeas relief under Antiterrorism and Effective Death
Penalty Act of 1996; Act requires showing of unreasonable application of Supreme Court
precedent; discussing earlier cases holding court may not draw adverse inference from
defendant's silence when determining facts about crime that bear on severity of sentence).

Again, we need not reach the merits of this issue today or parse the applicable
standard of review, because the situation giving rise to this claim can easily be avoided
on remand. Assuming the State goes forward with severed penalty phase trials, the
district judge will be able to avoid any question on appeal about a no-adverse-inference
instruction by giving the instruction in the case of the defendant who desires it and not
giving the instruction in the case of the defendant who does not.
392




P16. CAPITAL PUNISHMENT FOR AIDER AND ABETTOR UNDER K.S.A. 21-3205

This issue was raised in J. Carr's brief to this court. We notice it on behalf of R.
Carr under the authority of K.S.A. 2013 Supp. 21-6619(b), but we do not reach its merits.

The record on this appeal does not establish which of the two defendants was
convicted of the murders of Heather M., Aaron S., Brad H., and Jason B. as a principal
and which as an aider and abettor. Without that information, there is no factual predicate
for examination of this issue.

P17. CAPITAL PUNISHMENT FOR AIDER AND ABETTOR UNDER SECTION 9

This issue was raised in J. Carr's brief to this court. We notice it on behalf of R.
Carr under the authority of K.S.A. 2013 Supp. 21-6619(b), but we do not reach its merits.

The record on this appeal does not establish which of the two defendants was
convicted of the murders of Heather M., Aaron S., Brad H., and Jason B. as a principal
and which as an aider and abettor. Without that information, there is no factual predicate
for examination of this issue.

P18. PROSECUTORIAL MISCONDUCT

The defendants challenge what they believe to be numerous instances of
prosecutorial misconduct during the penalty phase of their trial.

With the exception of one aspect of one issue raised by J. Carr in his direct appeal
and unique to him, which we address in our opinion in his case to provide guidance, we
393



need not reach the merits of the prosecutorial misconduct challenge today. Now that the
State has been put on notice of the behaviors and comments by its prosecutors likely to
give rise to appellate challenge, we are certain it will consider carefully whether engaging
in the same behaviors or making the same or similar comments during any proceedings
pursued on remand would be worth the substantial risk of undermining those
proceedings.

P19. DOUBLE JEOPARDY

J. Carr claims in his separate appeal that the wording of the verdict forms in this
case pose a risk of double jeopardy in the future. We notice this claim on behalf of R.
Carr under the authority K.S.A. 2013 Supp. 21-6619(b).

Under the authority of State v. Burnett, 293 Kan. 840, 849, 270 P.3d 1115 (2012),
we regard this claim as unripe and thus do not reach its merits.

P20. EXECUTION PROTOCOL

R. Carr alleges that the Kansas execution protocol is constitutionally deficient in
three ways—because no doses of the execution drugs are specified, because
qualifications for the IV team are not specified, and because there is no directive to
ensure that the prisoner is unconscious before a second and a third drug are administered.

This issue was raised by way of pretrial motion in the district court, and the
Secretary of the Department of Corrections testified at that time that the execution
protocol was "evolving." Judge Clark first said at the hearing on the motion that it was
unripe and then in his written ruling that he presumed the Secretary of Corrections "will
discharge the duties assigned to [him] in a constitutional manner, therefore the
394



defendants' motion shall be overruled." Judge Clark made no findings of fact and issued
no other conclusions of law.

This sparse record, made 12 years ago while the Kansas protocol was "evolving,"
is simply inadequate for us to address the protocol's constitutionality as of today.
Moreover, given our other rulings in this opinion, R. Carr's execution is merely a
possibility, not a certainty. We therefore regard the issue as unripe, see Burnett, 293 Kan.
at 850, and do not address its merits.

CONCLUSION FOR PENALTY PHASE

Because the district judge's failure to sever the penalty phase of defendants' trial
violated R. Carr's Eighth Amendment right to an individualized sentencing determination
and cannot be declared harmless error, the death sentence on R. Carr's remaining K.S.A.
21-3439(a)(6) conviction for the murders of Heather M., Aaron S., Brad H., and Jason B.
is vacated. This case is remanded to district court for further proceedings consistent with
this opinion.

* * *

BEIER, J., concurring in part and dissenting in part: This case is hard. It is beyond
hard. And those of us who have made a life in the law often repeat an old saying: Hard
cases make bad law. See Northern Securities Co. v. United States, 193 U.S. 197, 364, 24
S. Ct. 436, 48 L. Ed. 679 (1904) (Holmes, J., dissenting); see also Caperton v. A.T.
Massey Coal Co., Inc., 556 U.S. 868, 899, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009)
(recognizing legal aphorism).

395



Unfortunately, it appears that three of the majority's decisions on the guilt phase of
this case are examples of why this old saying came to be. I must, therefore, respectfully
dissent.

I. CUMULATIVE ERROR

Considered collectively, cumulative error

"may be so great as to require reversal of a defendant's conviction. The test is whether the
totality of the circumstances substantially prejudiced the defendant and denied him or her
a fair trial. No prejudicial error may be found under the cumulative error doctrine if the
evidence against the defendant is overwhelming. State v. Cosby, 285 Kan. 230, Syl. ¶ 9,
169 P.3d 1128 (2007)." State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675(2009).

"If any one of the errors involves a constitutional violation, the harmless error
standard stated in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705,
reh. denied 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967), must be applied to the
determination of whether the defendant was denied a fair trial." State v. Armstrong, 299
Kan. 405, Syl. ¶ 10, 324 P.3d 1052 (2014). That is the standard that applies here.

A majority of this court has identified 11 errors in Reginald Carr's trial on guilt.

• Six members of the court agree that District Court Judge Paul Clark erred
by refusing to sever.
• All seven members of the court agree that Judge Clark committed reverse
Batson error by seating W.B after peremptory challenge by the defendants.
• All seven members of the court agree that Judge Clark erred in allowing the
admission of Linda Ann Walenta's statements through law enforcement
testimony.
396



• All seven members of the court agree that Judge Clark erred in
interpreting and applying the third-party evidence rule and the hearsay rule,
preventing R. Carr from pursuing his defense to the Birchwood crimes.
• All seven members of the court agree that Judge Clark gave a faulty
instruction on the sex-crime-based capital murders.
• All seven members of the court agree that three of the multiple-homicide-
based capital murder convictions were multiplicitous with the first.
• All seven members of the court agree that the district court lacked subject
matter jurisdiction over any sex crime charges based on coerced victim-on-
victim sex acts.
• All seven members of the court agree that one of R. Carr's convictions for
the rape of Holly G. was multiplicitous with the other.
• All seven members of the court agree that Judge Clark erred by
automatically excluding testimony from an expert on the reliability of
eyewitness identifications.
• All seven members of the court agree that Judge Clark erred in instructing
the jury to consider an eyewitness' degree of certainty.
• All seven members of the court agree that Judge Clark erred by giving an
aiding and abetting instruction that discussed foreseeable crimes.

Two of these errors, standing alone, at least arguably require reversal of all of R.
Carr's convictions.

It is hard to imagine, for instance, a single error with more pervasive likely impact
on the direction and content of the evidence before the jury than Judge Clark's refusal to
sever the defendants' prosecutions. See State v. Martin, 234 Kan. 548, 551-52, 673 P.2d
104 (1983) (antagonistic defenses, weaker evidence against one codefendant lead to
reversal of codefendant's convictions); Neill v. State, 827 P.2d 884, 885-90 (Okla. Crim.
397



1992) (antagonism between defendants arose out of testimony codefendants elicited on
cross-examination, statements made by counsel during opening closing; "no judge could
have protected the defendants against their own hostility"; "each [codefendant] could
only convince the jury of his own innocence by convincing them to convict his
[codefendant]"; irreparable prejudice from failure to sever obvious); see also People v.
Bailey, 182 Ill. App. 3d 867, 870-71, 538 N.E.2d 718 (1989) (trial "more of a contest
between two defendants than between the People and each defendant"; reversible
prejudice also arose from admission of codefendant's statements to law enforcement);
State v. Sauls, 356 N.W.2d 516, 517-19 (Iowa 1984) (law enforcement statements, trial
testimony of each codefendant implicated other codefendant); Lafevers v. State, 819 P.2d
1362, 1366 (Okla. Crim. 1991) (no option but to reverse when codefendants'
"interlocking" statements placed both at crime scene but each claimed other committed
rape, murder, burning of victim; both defendants testified; other errors in joint trial also
identified); Silva v. State, 933 S.W.2d 715, 717-19 (Tex. App. 1996) (joint trial prevented
admission of codefendant's statement to impeach his testimony; clear prejudice shown).

And, as the majority describes, 16 of our sister states have either stepped into or
already occupied the space expressly left open by the United States Supreme Court in its
decision in Rivera v. Illinois, 556 U.S. 148, 161-62,129 S. Ct. 1446, 173 L. Ed. 2d 320
(2009): They have declared reverse Batson error is not subject to harmlessness analysis
or have treated it in a way that makes this rule evident. See State v. Mootz, 808 N.W.2d
207, 225-26 (Iowa 2012) ("A defendant could only show prejudice by showing that the
juror he sought to remove was biased. However, if the juror was biased, then the juror
would be removable for cause, and the question regarding the peremptory challenge
would become moot."); see also Zanders v. Alfa Mut. Ins. Co., 628 So. 2d 360, 361 (Ala.
1993) (civil action); State v. Wright, 86 Conn. App. 86, 95-98, 860 A.2d 278 (2004);
Elliott v. State, 591 So. 2d 981, 987 (Fla. Dist. App. 1991); Jackson v. State, 265 Ga. 897,
899, 463 S.E.2d 699 (1995); State v. Pierce, 131 So. 3d 136, 144 (La. App. 2013); Parker
398



v. State, 365 Md. 299, 311, 778 A.2d 1096 (2001); Commonwealth v. Hampton, 457
Mass. 152, 164-65, 928 N.E.2d 917 (2010); State v. Campbell, 772 N.W.2d 858, 862
(Minn. App. 2009); Hardison v. State, 94 So. 3d 1092, 1101-02 (Miss. 2012); People v.
Hecker, 15 N.Y.3d 625, 662, 917 N.Y.S.2d 39, 942 N.E.2d 248 (2010); State v. Short,
327 S.C. 329, 335-36, 489 S.E.2d 209 (Ct. App. 1997), aff'd 333 S.C. 473, 511 S.E.2d
358 (1999); State v. Yai Bol, 190 Vt. 313, 322-23, 29 A.3d 1249 (2011); State v. Vreen,
143 Wash. 2d 923, 932, 26 P.3d 236 (2001); People v. Gonzales, No. B224397, 2012 WL
413868 (Cal. App. 2012) (unpublished opinion); State v. Wilkes, No. 93-2408-CR-FT,
1994 WL 5547 (Wis. App. 1994) (unpublished opinion). And, 16 years before the United
States Supreme Court decided Rivera, a panel of our Court of Appeals recognized the
unknowable harm done by a reverse Batson error: "The proper use of the peremptory
challenge is vital to the conduct of a criminal defendant's defense. . . . Although it may
seem minimal, the deprivation of even one valid peremptory challenge is prejudicial to a
defendant and may skew the jury process." State v. Foust, 18 Kan. App. 2d 617, 624, 857
P.3d 1368 (1993).

The overarching goal of Batson—race-neutral jury selection—and the record
demonstrating that Judge Clark expressly denied R. Carr's selection of W.B. as the target
of his last peremptory challenge because of R. Carr's and W.B.'s shared race are in
irreconcilable conflict. And, to me, the rationales and outcomes of our 16 sister
jurisdictions and our Court of Appeals treating such a conflict as automatically reversible,
standing alone, make sense. What good is a right to a peremptory challenge if violation of
the right inevitably has no remedy?

But neither the court nor I need go this far in this case.

Under the cumulative error doctrine, I would hold that, when the refusal to sever
and reverse Batson errors are considered in conjunction with the nine other errors the
399



majority of the court has identified, reversal of all of R. Carr's convictions is required.
Research reveals no other Kansas appellate case affirming in the face of such a large
number of mostly interlocking errors. Despite the public passion attached to this hard
case—indeed, in part because of the public passion attached to this hard case—we should
not begin disregarding errors that numerous or mutually reinforcing here.

I readily acknowledge that the evidence against R. Carr on the Andrew Schreiber
and Birchwood incidents was unusually strong. But it was not inevitably invincible,
particularly if the governing rules had shifted in the directions the majority holds that
they should have. My colleagues and I simply cannot know with the degree of comfort
generally required in a death penalty case, see State v. Marsh, 278 Kan. 520, 525, 102
P.3d 445 (2004), rev'd and remanded, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429
(2006), and vacated in part, 282 Kan. 38, 144 P.3d 48 (2006) (heightened scrutiny
applies to review of capital trial proceedings) (citing Beck v. Alabama, 447 U.S. 625,
637-38, 100 S. Ct. 2382, 65 L. Ed. 2d 392 [1980]), that the contours of a severed guilt
phase with no reverse Batson error and in which R. Carr was permitted to defend himself
under a correct application of the third-party evidence and hearsay rules would have
differed so little as to be insignificant. Any anticipated change in perspective could have
intensified, had expert testimony on modern research on eyewitness identification been
permitted, or had the aiding and abetting and eyewitness instructions contained no error.

II. INSUFFICIENCY OF EVIDENCE ON FELONY MURDER

I also dissent from the majority's decision that the State's evidence of the
attempted aggravated robbery underlying R. Carr's felony-murder conviction in the
killing of Walenta was sufficient. There was simply no proof that the man who accosted
and shot Walenta in her driveway was trying to rob her, as opposed to committing or
attempting to commit another inherently dangerous felony.
400




The hole in the prosecution's case on the Walenta felony murder is far larger than
that facing the State in the recent case State v. McBroom, 299 Kan. __, 325 P.3d 1174
(2014). In that case, the State relied on evidence from a string of burglaries committed by
two friends to support one friend's participation in another burglary that led to the killing
of the homeowner. We affirmed.

R. Carr's participation was not the missing piece here. In fact, the State's evidence
on that was sufficient to satisfy a reasonable factfinder. The missing piece was the entire
underlying felony. The State charged and Judge Clark instructed on only aggravated
robbery. The circumstances surrounding the crime against Walenta were different enough
from those when Schreiber and the five friends from Birchwood were the victims that the
evidence against R. Carr in two other incidents could not supply the entire underlying
crime in the Walenta incident.

III. INSUFFICIENCY OF EVIDENCE ON DIGITAL RAPE

Finally, I also dissent from the majority's holding that the evidence against R. Carr
for aiding and abetting J. Carr's rape of Holly G. through her digital self-penetration was
sufficient. As base and coarse as J. Carr's command may have been, based on Holly G.'s
testimony, it did not eliminate other options for the achievement of his goal. On this
evidence, a rational factfinder could not find guilt beyond a reasonable doubt on Count
41. Accordingly, I would affirm R. Carr's Count 42 conviction for aiding and abetting J.
Carr's rape of Holly G., because reversal of the Count 41 conviction renders any
multiplicity issue moot.

401



CONCLUSION

The facts of this case are so vivid, the wrongs done to the victims so callously
inflicted, that any human cannot help to be tempted by the siren song of retribution. The
song is what makes this case hard; it robs the sailor of reason. But it is the job of judges
to resist making bad law, even when the siren's seductive power is at its height. This hard
case must be treated as other, less hard cases are treated.

I would reverse all of R. Carr's convictions under the doctrine of cumulative error
and would remand the entire case to the district court for further proceedings scrubbed of
the 11 errors the majority of the court has identified.

LUCKERT and JOHNSON, JJ., join the foregoing concurring and dissenting opinion.

* * *

JOHNSON, J., concurring in part and dissenting in part: I join Justice Beier's
separate opinion, but I also write separately to disagree with the majority's holding that
the pretrial publicity in this case did not create the kind of lynch mob mentality that
warrants a change of venue. This court's history of never reversing a change of venue
denial, together with the majority's holding in this case, suggest to me that we have set
the bar so high that nothing will suffice short of an actual mob storming the courthouse,
carrying burning torches and a rope tied with a hangman's noose.

In my view, we should do a better job of protecting the cornerstone of our criminal
justice system—the right to a fair and impartial jury. And we should do so without regard
to whether we agree with the jury's verdict in a particular case and even though we
understand the toll that a retrial will take on the innocent victims. A right that is not
402



enforced is no right at all. Moreover, the courts are normally the only place that an
individual can find protection for the rights that others more powerful would deny. See
Law, Justice, and the Holocaust, Meinecke and Zapruder (2009) (describing how
Supreme Court rulings facilitated the elimination of individual rights for Jews in
Germany from 1933 to 1945).

As the majority notes, the right to a trial by an impartial jury is guaranteed by both
our federal and state constitutions. Neither constitution makes any exception for cases in
which there is strong evidence that the defendant committed brutal and despicable
criminal acts. To the contrary, the Fourteenth Amendment to the United States
Constitution declares in relevant part: "[N]or shall any State deprive any person of life,
liberty, or property, without due process of law." (Emphasis added.) Our Kansas
Constitution Bill of Rights, § 10, provides that "a speedy public trial by an impartial jury"
shall be provided "[i]n all prosecutions." (Emphasis added.) Likewise, our legislature has
mandated that a trial court "shall order that the case be transferred" where the prejudice
against the defendant precludes a fair and impartial trial in the original county. (Emphasis
added.) K.S.A. 22-2616(1). Indeed, this court has explicitly held that "[n]either law nor
basic justice can tolerate" a rule "that the greater the evidence against a defendant, the
less right that defendant has to a fair trial." State v. Tosh, 278 Kan. 83, 97, 91 P.3d 1204
(2004). To the contrary, the "[d]enial of a fair trial violates the due process rights of the
guilty defendant just as surely as those of the innocent one." 278 Kan. at 97.

And a fair trial requires that all of the jurors sitting in judgment of the criminal
defendant must commence the trial presuming that the defendant is innocent. That initial
state of mind is mandated because "[u]nder our theory of criminal jurisprudence in this
nation, the defendant is clothed with a presumption of innocence until he is proven to be
guilty beyond a reasonable doubt by the State." State v. Williams, 229 Kan. 646, 663-64,
630 P.2d 694 (1981). It is not enough for a juror to be open to the possibility that the
403



evidence presented at trial will dissuade the juror that the defendant is guilty. It is not
enough for the juror to "hope" that he or she will be able to set aside preconceived
judgments of guilt or to "try" to disregard inculpatory information to which the juror was
exposed prior to trial. Instead, if a juror's state of mind with respect to the case or to the
defendant is such as to create "doubt that he [or she] can act impartially and without
prejudice to the substantial rights of [the defendant]," the court has grounds to strike that
juror for cause. K.S.A. 22-3410(2)(i) (setting forth one of the grounds for a challenge for
cause). In short, the slate upon which the State shall write its guilt-proving evidence must
be clean when the trial begins.

Here, the evidence presented by the defense in support of its initial pretrial motion
for a change of venue established that a bias or prejudice against the defendant was
pervasive throughout Sedgwick County. Nearly everyone surveyed in Sedgwick County
(96%) was aware of the case. Almost three out of every four Sedgwick Countians
(74.1%) thought the defendant was either definitely guilty or probably guilty, and nearly
all of those people (72.3% of those surveyed) thought the evidence of guilt was
overwhelming or strong. For the respondents that had either engaged in personal
discussions about the case or overheard such discussions, the bias toward believing the
defendant to be guilty was an overwhelming 86% and 82%, respectively, i.e., more than
four such persons out of five.

Putting the survey results in the perspective of a 12-person jury, the statistical
probability was that 9 jurors in Sedgwick County would start the trial holding the belief
that, at the least, there was strong evidence that the defendant was probably guilty. As the
survey expert predicted, the results obtained during the survey—conducted a year after
the incidents—did not change much by the time of trial, as reflected in the pretrial
questionnaires. The remaining one-fourth—or less—of the jury pool who had not
predetermined the defendant's guilt left him scantily clad in the presumption of
404



innocence. Such nakedness does not pass constitutional muster or meet the statutory
mandate.

The survey also revealed that a figurative lynch mob mentality was not inevitable
in this state. In Wyandotte County, only about one in five persons (22%) believed
defendant to be guilty and about one in six (16%) thought the evidence of guilt was
strong or overwhelming. Ironically, whereas 74.1 % of the Sedgwick County surveyed
citizens believed defendant was guilty, there was nearly as high a percentage of
Wyandotte County surveyed citizens (70.5%) who were not even aware of this case.
Thus, the available wardrobe of unbiased venire persons in Wyandotte County was
sufficient to clothe the defendant in the presumption of innocence to which he was
constitutionally and statutorily entitled, i.e., a change of venue would have provided a
reasonable opportunity for a fair trial.

The majority divides the change of venue analysis into two parts and first
determines whether we can presume prejudice prior to voir dire because "'the pretrial
publicity is so pervasive and prejudicial that we cannot expect to find an unbiased jury
pool in the community.'" (Quoting Goss v. Nelson, 439 F.3d 621, 628 [10th Cir. 2006],
citing Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663 [1963]). The
majority then utilizes the Skilling factors to analyze whether it believes that the publicity
in this case would likely have caused such an unacceptable level of prejudice for the
defendant. See Skilling v. United States, 561 U.S. 358, 381-85, 130 S. Ct. 2896, 177 L.
Ed. 2d 619 (2010). But we need not subjectively ruminate on the degree of prejudice in
this case. We have an objective manifestation of the effects of the publicity. As discussed
above, the defense provided the district court with the results of a survey—which the
judge found to be "valid"—and further provided the court with the testimony of a
person—officially designated as an "expert" by the court—who explained what the
survey results meant.
405




Yet, the district court inexplicably ignored the evidence that it declared to be valid.
I cannot be as charitable as the majority about the district court rulings. Initially, after
being presented with the above-summarized numbers comparing Sedgwick County to
Wyandotte County, the district court inscrutably found "that the venue in which
defendants will be assured of the greatest number of venire persons free of bias or
prejudice from whom a jury may be selected to decide the case solely on the facts in
evidence, viewed by the light of the instruments of law, is Sedgwick County, Kansas."
But the evidence established the exact opposite, i.e., Wyandotte County had the greatest
number of venire persons who were free of bias or prejudice. One simply cannot spin any
kind of inference from the evidence that would support the district court's ruling. And
even affording the district court the highest level of deference, we would have to find an
abuse of discretion where the court's ruling was based upon an error of fact. See State v.
Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
Subsequently, the remaining rulings on the motions for change of venue were equally
unsatisfactory, especially given the magnitude of what was at stake in this prosecution.

The majority gives scant credence to the survey results, as well. It principally
relies on the fact that this court has previously glossed over such survey evidence. I
cannot join in perpetuating the practice of dismissing out-of-hand statistically valid
evidence that has compelling evidentiary value on the question presented. In Bergstrom v.
Spears Manufacturing Co., 289 Kan. 605, Syl. ¶ 2, 214 P.3d 676 (2009), we explained
that a history of incorrectly decided cases is not compelling and that this court is not
inexorably bound by erroneous or unsound rulings. Here, the survey results provided the
answer to the question the majority was contemplating, i.e., whether "'the pretrial
publicity is so pervasive and prejudicial that we cannot expect to find an unbiased jury
pool in the community.'" (quoting Goss, 439 F.3d at 628). The comparative survey
numbers clearly revealed a pervasive prejudice in Sedgwick County that would make
406



finding an unbiased jury pool a statistical improbability. Ignoring that evidence is
erroneous and unsound, if not blatantly unconstitutional.

Moving to the actual prejudice prong and reviewing the voir dire does not change
my mind; the district court committed reversible error when it refused to change the
venue of this trial at every stage of the process where it was requested. The record
establishes at least a "reasonable certainty" that the defendant could not obtain a fair trial
in Sedgwick County. Perhaps the trial court beat the pretrial statistical probability that the
jury would contain 9 biased jurors out of 12, but not by much.

Again, I cannot be as forgiving as the majority with respect to the trial court's
participation in the questioning of the potential jurors. The court repeatedly provided
venire persons with the magic words which would permit the court to strike those with
misgivings about the death penalty, while passing for cause those who were predisposed
to finding the defendant guilty and/or were mitigation-impaired with respect to the death
penalty. Moreover, the court allowed the prosecution to overtly lead the potential jurors
into saying or agreeing with statements that would support the result that the State
wanted. In my view, the manner in which the questioning was conducted made a sham
out of the process. Instead of uncovering disqualifying bias and prejudice, the voir dire
questioning in this case too often served to camouflage it.

If nothing else, the voir dire questioning in this case should call into question the
bona fides of the fourth Higgenbotham factor, i.e., the care exercised and the ease
encountered in the selection of the jury. See State v. Higgenbotham, 271 Kan. 582, 592,
23 P.3d 874 (2001). Obviously, if the court is disinclined to grant defense challenges for
cause and/or is prone to rehabilitating those venire persons making a questionable
response, the jury selection process will be eased and expedited. But that does not
necessarily signal an absence of prejudice. Moreover, the efficacy of utilizing jury
407



questionnaires and individual voir dire is certainly diluted, if not outright negated, by the
tack of leading the prospective jurors into saying what they believe the judge or
prosecutor want them to say.

My last comment on the change of venue ruling deals with the majority's use of
the deferential abuse-of-discretion review standard to tip the scales in favor of affirming
the change of venue denial. I certainly recognize that a judge observing a potential juror's
response to voir dire questioning is in a better position to gauge that person's credibility
and thereby assess the person's bias and prejudice. But in my view, the district court's
initial ruling—that Sedgwick County had more venire persons free of bias and
prejudice—fit squarely within the traditional definition of an abuse of discretion, because
that "judicial action . . . [was] arbitrary, fanciful, or unreasonable." Ward, 292 Kan. at
550. Given the undisputed survey evidence, no reasonable person would have taken the
judge's view. Thereafter, I would not use deference as a mechanism to cover for the trial
court's initial abuse of discretion, especially in light of the voir dire procedures it
employed. To the contrary, I would find reversible error.

Finally, to avoid unnecessarily extending this opinion, I only briefly mention that I
would revisit our prior decisions equating the "cruel or unusual" language in § 9 of the
Kansas Constitution Bill of Rights with the "cruel and unusual" language in the Eighth
Amendment to the United States Constitution. Recently, in Gannon v. State, 298 Kan.
1107, Syl. ¶ 5, 319 P.3d 1196 (2014), we said:

"Because constitutions are the work of the people, the best rule for ascertaining
their intention is to abide by the language they have used. It is reasonable to presume that
every word in the constitution has been carefully weighed, and that none are inserted, and
none omitted, without a design for so doing."

408



If we meant what we said in Gannon, then we should not read the word "or" to
mean "and" when interpreting § 9 of our Kansas Constitution Bill of Rights. The set of
punishments that is either cruel or unusual is necessarily larger than the set of
punishments that is both cruel and unusual. For instance, death is arguably a cruel
punishment, even if it is not an unusual one in this country.

* * *

BILES, J., concurring in part and dissenting in part: I agree Reginald Carr's
sentencing must be reversed and remanded for new proceedings because the district court
failed to sever the cases following the convictions. I write separately to note my
disagreement with the majority's dicta in the section entitled "P10. Burden of Proof on
Mitigating Factors." Slip op. at 378. The majority argues R. Carr's sentence was imposed
in violation of the Eighth Amendment to the United States Constitution because the
district court failed to explicitly instruct the jury that mitigating circumstances need not
be proven beyond a reasonable doubt. I disagree.

As noted in more detail in my dissent in State v. Gleason, No. 97,296, 299 Kan.
___, ___ P.3d ___ (filed July 18, 2014) (slip op. at 100), the majority's conclusion defies
the United States Supreme Court's established Eighth Amendment jurisprudence and
lacks any persuasive analysis articulating why the circumstances in this case justify a
departure from that precedent. The issue for Eighth Amendment purposes is "whether
there is a reasonable likelihood that the jury has applied the challenged instruction in a
way that prevents the consideration of constitutionally relevant evidence." Boyde v.
California, 494 U.S. 370, 380, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990). The majority's
conclusion is that a per se violation of the Eighth Amendment occurs if a jury instruction
correctly states that the State bears the burden of proving aggravating circumstances
409



beyond a reasonable doubt but fails to affirmatively state that mitigation evidence need
not be proven beyond a reasonable doubt.

But this alone cannot justify reversal under controlling Eighth Amendment
precedent. See Kansas v. Marsh, 548 U.S. 163, 173, 126 S. Ct. 2516, 165 L. Ed. 2d 429
(2006); Walton v. Arizona, 497 U.S. 639, 651, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990),
overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed.
2d 556 (2002); see also Smith v. Spisak, 558 U.S. 139, 130 S. Ct. 676, 175 L. Ed. 2d 595
(2010) (instructions and jury forms at penalty phase did not violate Eighth Amendment
by requiring jury unanimity as to existence of mitigating factors; instructions and forms
did not explicitly advise jury mitigating circumstances need not be unanimously found).
The next step must be to decide in the absence of the instruction whether there is a
reasonable likelihood that the jury has applied the challenged instruction in a way that
prevents the consideration of constitutionally relevant evidence. The majority is wrong
when it cuts the analysis short and concludes the failure to simply instruct the jury on
mitigation forces an automatic reversal. Slip op. at 378.

The Eighth Amendment does not compel our directive in State v. Kleypas, 272
Kan. 894, 1078, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002), that any
mitigating circumstance instruction must inform the jury that mitigating circumstances
need not be proven beyond a reasonable doubt. See Marsh, 548 U.S. at 173 (holding
Walton compelled conclusion Kansas capital sentencing scheme satisfied Eighth
Amendment requirements because Kansas scheme was functionally identical to scheme
found constitutional in Walton, except it provided benefit to defendants by placing no
evidentiary burden on them). A finding that R. Carr's jury instructions did not conform to
the Kleypas requirement is not an adequate basis for concluding R. Carr's federal Eighth
Amendment rights were violated and reversal is required.

410



I dissent from that portion of the opinion.

MORITZ, J., joins the dissenting portion of the foregoing concurring and dissenting
opinion.

* * *

MORITZ, J., concurring in part and dissenting in part: I write separately for several
reasons, initially to register my disagreement with my colleagues, who plaintively seek
respect for their position that the "hard" and correct decision in this case is to overturn all
of Reginald Carr's convictions and, consequently, his death sentence. Slip op. at 394
(Beier, J., concurring in part and dissenting in part).

Justice Beier's separate opinion boldly declares that the majority, in affirming
Reginald Carr's convictions, has opted for the easy way out by bowing to public pressure
in this high profile case. While it might be satisfying to respond to this harsh and
unjustified criticism, I will not waste precious judicial time and resources doing so.
Suffice it to say, I feel no pressure or compulsion other than the ever-present compulsion
to follow the law rather than my conscience or personal views. Ultimately, following the
law, I would find that Reginald Carr received a fair trial, and I would affirm both his
capital murder conviction and the sentence of death imposed by a jury comprised of 12 of
his peers.

Setting aside the rhetoric of that separate opinion, my first substantive purpose in
writing this separate opinion is to concur with the majority opinion. I concur because
while I agree with the majority's decision to affirm Reginald Carr's convictions, including
one capital murder conviction, I disagree with the majority's conclusion that the district
court abused its discretion in refusing to sever the defendants' guilt phase trial.
411



Consequently, in conducting a harmless error analysis in the guilt phase, I would not
consider the joinder as error, which would effectively strengthen the majority's
affirmation of Reginald Carr's convictions. However, even considering the joinder as
error, I believe the majority properly finds any errors in the conviction phase harmless
and Reginald Carr's cumulative error argument unpersuasive in light of the incredibly
overwhelming evidence of guilt. Therefore, I concur with the majority opinion affirming
Reginald Carr's convictions, including one capital murder conviction.

My second substantive, and perhaps more significant, purpose is to dissent to the
majority's decision to reverse and remand Reginald Carr's death sentence. Stated
conversely, I would affirm the jury's imposition of the death penalty against Reginald
Carr. Specifically, I would find the district court did not err in refusing to sever the
defendants' penalty phase trial. But even considering a joinder error in the penalty phase,
I would affirm the jury's imposition of the death penalty for Reginald Carr. As I detail
below, given the unusually egregious facts of this case, Holly G.'s powerful testimony,
the overwhelming evidence of aggravating circumstances found by the jury, and the lack
of persuasive mitigating evidence, I would hold beyond a reasonable doubt that the jury's
decision to impose the death penalty was not attributable to any joinder error below.

Additionally, I join that portion of Justice Biles' separate opinion dissenting from
the majority's "alternative" holding that the district court erred in failing to instruct the
jury that mitigating circumstances need not be proven beyond a reasonable doubt. As
Justice Biles aptly points out, the majority's alternative holding is dicta. I prefer to
characterize it as a "belt and suspenders" approach designed to hitch up the majority's
already sagging rationale. In any event, like my colleague, I would find that this was not
constitutional error and provides no basis for reversal, much less the independent basis
suggested by the majority.

412



The district court did not abuse its discretion in refusing to sever the defendants' guilt
phase trial.

Severance should be granted under K.S.A. 22-3204 when it appears necessary to
avoid prejudice and ensure a fair trial to each defendant. State v. Davis, 277 Kan. 231,
239, 83 P.3d 182 (2004) (citing State v. Aikins, 261 Kan. 346, 360, 932 P.2d 408 [1997]);
see Zafiro v. United States, 506 U.S. 534, 539, 113 S. Ct. 933, 122 L. Ed. 2d 317 (1993)
("[A] district court should grant a severance . . . only if there is a serious risk that a joint
trial would compromise a specific trial right of one of the defendants, or prevent the jury
from making a reliable judgment about guilt or innocence.").

I agree with the majority that Reginald Carr and Jonathan Carr presented
antagonistic defenses. But the existence of antagonistic defenses is only one of several
"'factors to be considered [by the trial court] in determining whether there is sufficient
prejudice to mandate severance.'" Davis, 277 Kan. at 240 (quoting State v. Butler, 257
Kan. 1043, 1063, 897 P.2d 1007 [1995], modified on other grounds 257 Kan. 1110, 916
P.2d 1 [1996]). Unlike the majority, I would conclude the existence of antagonistic
defenses, even coupled with the exclusion of weak third-party evidence, failed to
establish sufficient risk of prejudice to compel the district court to sever the trial. See
Zafiro, 506 U.S. at 538-39 (noting the presence of mutually antagonistic defenses is not
prejudicial per se, and severance is not compulsory, "even if prejudice is shown; rather, it
leaves the tailoring of the relief to be granted, if any, to the district court's sound
discretion"). Consequently, I would conclude the district court did not abuse its discretion
in failing to sever the guilt phase of the trial.

But, like the majority, I would conclude that if the district court erred in failing to
sever the guilt phase, the error was harmless. I need not fully recount that evidence since
it is more fully discussed below and in the majority's harmless error analysis. Suffice it to
say that biological evidence—including Heather's blood on his undershorts—strongly
413



connected Reginald Carr to the crime, as did compelling physical and circumstantial
evidence—including footprints matching Reginald Carr's at Birchwood and Reginald
Carr's attempt to flee.

The district court did not err in refusing to sever the defendants' penalty phase trial.

Likewise, I reject that the district court erred in failing to sever the defendants'
penalty phase trial and that failure rose to an Eighth Amendment violation. The majority's
discussion finding an Eighth Amendment violation is logically flawed and, at times,
difficult to follow. While I disagree with essentially every step of the majority's analysis
of this issue, I will briefly state my objections before turning to the harmless error issue,
which, in my opinion, is where the majority's nearly nonexistent analysis goes entirely
awry.

Initially, the majority points out that Reginald Carr contends the failure to sever
violated his Eighth Amendment right to individualized sentencing. Yet the majority
recognizes that while the Eighth Amendment requires a jury to make an individualized
sentencing determination, it does not mandate separate penalty phase proceedings for
each codefendant in death penalty cases. Slip op. at 344 see also United States v. Tipton,
90 F.3d 861, 892 (4th Cir. 1996) (joint trials in death-eligible cases are not per se
unconstitutional); United States v. Rivera, 363 F. Supp. 2d 814, 823 (E.D. Va. 2005)
("The defendants [in a capital case] have an Eighth Amendment right to an
'individualized determination' of their penalty phase sentence, however, this important
right does not compel an individual penalty phase hearing.")

Despite acknowledging that the Eighth Amendment does not compel severance,
the majority proceeds to analyze whether the defendants presented "antagonistic"
mitigation evidence. Without citing the statute, the majority then seemingly analyzes the
414



penalty phase evidence under the same statutory test it applied to determine whether the
trial court abused its discretion in denying severance of the guilt phase.

Not surprisingly, the majority never fully explains how partially antagonistic
evidence can result in a violation of the statutory right to sever. Nor does the majority
clearly state the basis for its conclusion that the trial court erred in refusing to sever the
penalty phase trial. Instead, the majority jumps from a discussion of partially antagonistic
evidence to the Eighth Amendment requirement of individualized capital sentencing. But,
to the extent the majority relies on the Kansas statutory framework for finding an Eighth
Amendment violation, this analysis is flawed. Statutory violations do not equate to
constitutional violations. See, e.g., State v. Sawyer, 297 Kan. 902, 906-07, 305 P.3d 608
(2013) (noting this court's jurisprudence had "obscured" the analytical distinctions
between a statutory argument that a judge is unfairly biased and a constitutional argument
that a judge is unfairly biased and analyzing the two bases separately); State v. Jones, 273
Kan. 756, 766, 47 P.3d 783 (2002) (holding a violation of statute requiring a juvenile's
parents be notified of a proceeding did not rise to a constitutional violation); State v.
Smallwood, 264 Kan. 69, 74-75, 955 P.2d 1209 (1998) (analyzing separately defendant's
argument that the State violated his statutory right to a speedy trial and his constitutional
right to a speedy trial).

The majority also determines some mitigating evidence regarding "moral
culpability" was "partially antagonistic," although it appears to recognize that most of the
two brothers' mitigating evidence was not antagonistic. I am aware of no authority for the
majority's implied conclusion that because there is some antagonistic evidence pertaining
to moral culpability, Reginald Carr's death sentence violates the Eighth Amendment's
individualized sentencing requirement, and the majority cites none, including the string-
cited cases. See slip op. at 348-49.

415



Similarly, the majority seizes upon a comparatively minor theme suggested by
Jonathan Carr's evidence in the penalty phase—i.e., that Reginald Carr led Jonathan Carr
astray and that their sister testified Reginald Carr told her he was the shooter. The
majority points out that had the brothers received separate penalty phase trials, this
mitigating evidence presumably would not have been admitted at Reginald Carr's trial.
But once again, I find no support for the majority's implication that because this
antagonistic evidence might not have been admitted in the penalty phase of a separate
trial that its admission in a joint trial somehow rose to the level of a constitutional
violation.

More importantly, the majority's unsupported Eighth Amendment analysis relies
heavily upon the faulty underlying premise that Reginald Carr's jury did not follow the
explicit instruction that "[a]ny evidence in this phase that was limited to only one
defendant should not be considered by you as to the other defendant." Slip op. at 348.
Although the majority declares this case to present the "rare instance in which our usual
presumption that jurors follow the judge's instructions is defeated by logic," it oddly fails
to explain the "logic" to which that solid presumption gives way. Slip op. at 348. Unlike
the majority, I am not skeptical of this jury ability's to follow instructions simply because
of the nature of the case or the "maelstrom that was [the defendants'] family." Slip op. at
348. And not surprisingly, the majority's logic overlooks that this jury had already
demonstrated its ability to differentiate between evidence presented by the two brothers
when it refused to convict Jonathan Carr on counts related to the Schreiber incident.

Instead, the majority vaguely offers a statement I cannot even loosely characterize
as logical: "In view of the defendants' joint upbringing in the maelstrom that was their
family and their influence on and interactions with one another, including testimony that
tended to show that R. Carr was a corrupting influence on J. Carr, the penalty phase
evidence simply was not amenable to orderly separation and analysis." Slip op. at 348.
416




To summarize, I simply cannot agree with the highly flawed and limited rationale
offered by the majority for finding constitutional error in the refusal to sever the penalty
phase trial. I would find no error and affirm Reginald Carr's death penalty conviction.

Assuming joinder error in the penalty phase, the death penalty verdict cannot be
attributed to that error.

Even if I agreed with the majority that (1) the district court erred in failing to sever
the penalty phase and (2) that error resulted in an Eighth Amendment violation, I would
strongly disagree with the majority's conclusory, one-paragraph harmless-error analysis,
and I would find that the jury's unanimous decision to render the death penalty was not
attributable to any such error. Instead, Reginald Carr's death penalty verdict must be
attributed to the overwhelming evidence of extreme terror, humiliation, pain, and anguish
inflicted upon the multiple victims. Simply stated, we should not overturn the jury's
reasoned decision that this aggravating evidence was not outweighed by mitigating
evidence.

Notably, the majority's cursory harmless-error analysis fails to even mention the
substantial and compelling evidence of aggravating factors found by the jury. Instead, the
majority points to the "especially damning subset [of evidence] that may not have been
admitted in a severed proceeding" and the "hopelessly tangled interrelationship of the
mitigation cases presented by the defendants" to arrive at its conclusion that the jury
simply "could not have discharged its duty to consider only the evidence limited to one
defendant as it arrived at their death sentences." Slip op. at 350.

Again, the flaws in this cursory analysis are numerous. Most critically, in its rush
to declare that the jury could not have done its job, the majority fails to do its own job—
i.e., to consider whether the court is able to find beyond a reasonable doubt that the error
417



viewed in the light of the record as a whole, had little, if any likelihood of changing the
jury's ultimate conclusion regarding the weight of the aggravating and mitigating
circumstances. Slip op. at 349-50 (citing standard of review).

Before considering the record as a whole and the impact it should have had on the
majority's analysis, I will first remark upon the "especially damning subset of evidence"
referred to by the majority. Slip op. at 350. This evidence has two components. One
component is the statement of the defendants' sister, Tamika, that Reginald Carr admitted
to her during a jail visit that he was the shooter. When asked about this statement on
cross-examination, Tamika said: "I believe I heard him tell me something like that. I
don't remember . . . when he asked me who he shot and all that, I don't remember who
was, you know, shot by who[m]." The second component is Jonathan's general mitigating
evidence suggesting his brother was a negative influence in his life.

The majority refers to this evidence as "moral culpability" evidence and suggests
that it was impossible for the jury, after hearing this evidence, to declare mercy for
Reginald Carr. Slip op. at 347. In my view, even considering this evidence in isolation, as
the majority considers it, the evidence can hardly be characterized as "especially
damning." Rather, these evidentiary components were minor in comparison to the
substantial and more compelling mitigating evidence both brothers presented about the
childhood abuse they suffered at the hands of others, including parental neglect and being
forced to participate in each other's beatings.

But more importantly, this "moral culpability" evidence hardly compelled the jury
to overlook everything else they heard about the defendants and their joint 3-hour crime
spree, for which the jury had already found them equally legally culpable. Moreover, the
negligible impact of Jonathan Carr's mitigating evidence suggesting his brother had been
a negative influence in his life is obvious from the jury's refusal to declare mercy and
418



spare Jonathan Carr instead of dealing him the same punishment as his brother. See
People v. Letner, 50 Cal. 4th 99, 197, 235 P.3d 62 (Cal. 2010) ("Moreover, in light of the
circumstance that the jury reached a death verdict as to both defendants, we discern even
less of a possibility that the jury improperly assigned culpability based upon one
defendant's attempt to mitigate the seriousness of his own actions by shifting
accountability to his codefendant.").

In any event, even accepting the majority's characterization of this evidence as
"especially damning," I have no hesitation whatsoever in concluding that when viewed in
light of the record as a whole it had little, if any, likelihood of changing the jury's
ultimate conclusion regarding the weight of the aggravating and mitigating
circumstances.

Simply put, 12 of Reginald Carr's peers—jurors sworn to uphold the law and
impose the death penalty if warranted—heard overwhelming and convincing evidence of
heinous and atrocious acts committed by Reginald Carr. And they heard that evidence
from Holly, the unintended survivor of this savage attack. It is nearly impossible to
convey in a few short paragraphs the overwhelming nature of that evidence. But in order
to demonstrate the severe shortcoming in the majority's harmless error analysis, a
summary is necessary.

For more than 3 hours, Reginald and Jonathan Carr inflicted their perverse form of
torture on the five victims in this case, forcing their often naked captives to commit
sexual acts on one another as the two intruders watched. Holly recounted that over those
3 hours she was raped once by Reginald Carr, who after raping her, grabbed her by the
back, turned her around, ejaculated into her mouth, and directed her to swallow. The jury
also heard Holly describe how she was twice raped by Jonathan Carr, forced to digitally
419



penetrate herself, and forced into sexual intercourse with Heather, Brad, Aaron, and
Jason.

When she was not being violated herself, Holly sat naked in a closet with her
fellow captives, so terrified she wet herself, listening to Heather moaning in pain as she
repeatedly was raped in the same fashion. Heather's moans caused her boyfriend, Aaron,
to break down, sobbing and crying, "[T]his shouldn't happen this way." Holly performed
oral sex on Jason while in the closet because one of the two defendants threatened
additional violence if the men could not get an erection.

Each victim also was forced to leave the Birchwood residence and travel alone
with Reginald Carr to withdraw money from his or her bank accounts. Holly recounted
her experience, explaining she was clothed only in a sweatshirt, and that Reginald Carr
groped her vagina while they were in the car. Holly asked Reginald if he was going to kill
them, and he said "no."

But any slight hope Holly might have had that her life and the lives of her friends
would be spared was dashed when they returned to the house and Reginald Carr told
Holly, "[D]on't worry. I'm not going to shoot you yet." Carr's threat proved true when the
five victims were taken at gunpoint into the garage, and Jason, Brad, and Aaron were
forced into the trunk of Aaron's car. Jonathan Carr then drove Aaron's car, with Heather
seated on the passenger side, while Reginald Carr drove Jason's truck with Holly seated
on the passenger side.

The defendants then took their victims to a soccer field in a remote location. They
ordered the men out of the trunk and ordered Heather and Holly out of the car.
Eventually, Reginald Carr and Jonathan Carr forced each of their five victims, who were
naked or partially clothed, to kneel next to each other, single file, on the snow-covered
420



ground in below freezing temperatures. As these victims did so, surely each suspected his
or her fate.

Holly testified she heard one shot, then heard Aaron pleading, and then "another
shot and another one and another one" as each victim was shot, execution style, in the
back of the head. Then everything went briefly gray for Holly. But even after being shot
in the back of the head, Holly remained kneeling. One of the defendants kicked her in the
back, causing her to fall face forward in the snow. She heard the defendants having a
conversation before they drove off in Jason's truck. She felt an impact as the truck ran
over her.

After the two men drove off, Holly got up and checked on the others, wrapping
her only remaining piece of clothing around Jason's head in a futile attempt to save his
life. And then she ran—terrified, naked, bleeding, and freezing—for over a mile to get
help. Meanwhile, Reginald and Jonathan Carr, unaware that Holly had survived, returned
to the home at Birchwood to steal belongings from the victims and beat Holly's dog to
death.

Unquestionably, the State proved by overwhelming and convincing evidence the
aggravating circumstance that Reginald Carr committed the murders in a heinous,
atrocious, or cruel manner. See K.S.A. 2013 Supp. 21-6624(f). See State v. Kleypas, 282
Kan. 560, 569, 147 P.3d 1058 (2006) (murder is committed in an especially heinous,
atrocious, or cruel manner for purposes of the death penalty aggravating factor when the
victim suffers serious physical abuse or mental anguish before death, and mental anguish
includes a victim's uncertainty as to his or her ultimate fate).

Nor can there be any question the State overwhelmingly proved the other three
aggravating circumstances found by the jury: (1) Reginald Carr "knowingly or purposely
421



killed or created great risk of death to more than one person." K.S.A. 2013 Supp. 21-
6624(b); (2) Reginald Carr committed capital murder so he or another could receive
money or items of value. K.S.A. 2013 Supp. 21-6624(c); and (3) Reginald Carr
committed capital murder to avoid arrest or prosecution. See K.S.A. 2013 Supp. 21-
6624(e).

The majority gives lip service to the standard of review—i.e., to consider whether
beyond a reasonable doubt the error viewed in the light of the record as a whole, had
little, if any likelihood of changing the jury's ultimate conclusion regarding the weight of
the aggravating and mitigating circumstances. But it entirely fails to conduct the analysis.
Had it done so, I do not believe it could arrive at any conclusion other than that the
severance error, if any, had little, if any, likelihood of changing the jury's ultimate
conclusion. Instead, the court should hold that this jury, which demonstrated its
willingness to independently assess the respective culpability of each defendant,
appropriately conducted the required weighing of aggravating and mitigating
circumstances and concluded Reginald Carr deserved the penalty of death.

The people of Kansas, through the legislature, enacted a death-penalty scheme that
comports with the Eighth Amendment and demonstrates the people's collective belief that
death is the appropriate punishment for murder in certain circumstances. I am convinced
Reginald Carr received a fair trial and that the jury imposed a sentence of death because it
understood that his horrendous crime called for that sentence. Because I would affirm
Reginald Carr's death sentence, I dissent.