Under K.S.A. 2013 Supp. 21-5209, a criminal defendant may
present a mental disease or defect defense to establish he or
she lacked the culpable mental state required as an element
of the charged crime. In turn, K.S.A. 2013 Supp. 21-5202(a)
defines the phrase "culpable mental state" as
including conduct performed "intentionally, "
"knowingly, " or "recklessly." It does
not list premeditation as a culpable mental state.
Consequently, a district court does not err by omitting any
reference to premeditation in a jury instruction regarding
the defense of mental disease or defect.
Second-degree intentional murder is a lesser included offense
of first-degree premeditated murder.
Under K.S.A. 2013 Supp. 22-3414, a district court should
instruct the jury on a lesser included offense if there is
some evidence that would reasonably justify a conviction of
the lesser included crime. To determine whether this standard
has been met, the district court should consider whether
there is some evidence, when viewed in the light most
favorable to the defendant, that would allow a rational
factfinder to find the defendant guilty of the lesser
district court does not err by instructing a jury both (1)
that its only concern is to determine if the defendant is
guilty or not guilty and (2) that a defendant found not
guilty solely because of a mental disease or defect will be
committed to the state security hospital for safekeeping and
treatment until discharged according to law.
district court does not err by refusing to allow a closing
argument that a defendant would be fine with a second trial
because the remark could be interpreted as encouraging jurors
to violate their oath to return a verdict based solely on the
evidence and to instead consider the consequences of a
single error will not constitute cumulative error.
Under the facts of this case, sufficient evidence was
presented of an especially heinous, atrocious, or cruel
district court does not abuse its discretion by declining to
define heinous, atrocious, or cruel when instructing the
K.S.A. 2013 Supp. 21-6624(f) is not unconstitutionally vague
even though it defines an aggravating circumstance allowing
for a hard 50 sentence as behavior that is
especially heinous, atrocious, or cruel but
describes behavior that is merely-rather than
especially-heinous, atrocious, or cruel. The statute still
provides a standard for heinous, atrocious, or cruel behavior
and then indicates that standard must be especially met.
defendant to whom a statute may constitutionally be applied
cannot challenge the statute on the ground that it may
conceivably be applied unconstitutionally in circumstances
not before the court.
Under the facts of this case, a district court did not abuse
its discretion by denying a defendant's request to be
sentenced to a hard 25 life sentence.
a defendant is sentenced under K.S.A. 2013 Supp.
21-6620(d)(6) and K.S.A. 2013 Supp. 21-6623, a district court
errs by imposing postrelease supervision rather than parole.
from Douglas District Court; Paula B. Martin, judge.
D. Schirer, of Kansas Appellate Defender Office, argued the
cause and was on the brief for appellant.
Charles E. Branson, district attorney, argued the cause, and
Kate Duncan Butler, assistant district attorney, and Derek
Schmidt, attorney general, were with him on the brief for
January 2014, Sarah Gonzales McLinn confessed to law
enforcement officers that she killed Hal Sasko. At her trial
on a charge of first-degree premeditated murder, McLinn did
not deny that she killed Sasko but argued she was not
criminally responsible because a mental disease or defect
prevented her from forming the culpable mental state
necessary to convict her of the charge. The jury nonetheless
convicted McLinn of first-degree premeditated murder. Then,
during the sentencing proceeding, the jury determined McLinn
murdered Sasko in an especially heinous, atrocious, or cruel
manner, and the district court ultimately imposed a hard 50
appeal, McLinn raises numerous arguments which relate to her
mental disease or defect defense, including several jury
instruction issues. McLinn contends these and other errors
require us to reverse her conviction. Although we determine
the district court committed one instructional error, we
determine the error was harmless and we affirm McLinn's
also raises five issues arising from sentencing proceedings.
We reject all but one of McLinn's sentencing issues: The
district court erred in ordering postrelease supervision
rather than parole. To remedy this error, we remand this case
to the district court for resentencing.
and Procedural Background
police officer discovered Sasko's body inside his
Lawrence home on January 17, 2014. Sasko's hands were
bound with zip ties. Other zip ties, some used and cut and
some unused, were scattered near his feet. The police
observed blood patterns and drops throughout the house and a
blood smear above Sasko's head. Beer cans were strewn
about, and three of them contained residue from a sleeping
pill. A toxicology analysis on Sasko's system showed
sleeping pills in an intoxicating concentration. A forensic
pathologist testified at trial that Sasko died of stab and
slicing wounds to his neck and that Sasko had no defensive
wounds. The pathologist offered detailed testimony about the
gruesome nature of the injury; suffice it to say, here, that
McLinn cut through Sasko's neck and cut or sawed through
most of the soft tissue surrounding the spine.
car was missing, as was McLinn's dog, and when the police
discovered McLinn's cell phone on the kitchen counter
they became concerned she had been kidnapped. The police
immediately began looking for McLinn and issued a nationwide
alert for Sasko's car.
police learned Sasko's car entered the Kansas turnpike
early in the morning on January 14, 2014, and exited the
turnpike near the Oklahoma border later that morning. Later,
McLinn's family alerted the police she had tried to call
her grandmother; those phone calls originated from
convenience stores along the route from Kansas to Texas.
Video surveillance showed it was McLinn, alone, who had made
those calls, and the police eventually determined McLinn was
a person of interest in the homicide. About a week later,
Lawrence police officers learned the National Park Service
had taken McLinn into custody near Miami, Florida.
Lawrence police detective interviewed McLinn in Florida for
about three hours on January 26, 2014. At trial, the
detective testified McLinn indicated she knew the interview
was about Sasko's death, and she told the detective she
had killed Sasko because she wanted to see how it felt to
kill someone. She elaborated on the preparations she had made
in advance of killing Sasko, which included falsely covering
her absence from work and gaining time to get out of town by
telling her coworkers she had a death in the family. As for
the actual murder, McLinn explained she crushed up some
sleeping pills and put them in Sasko's beer. Later, Sasko
stood up, stumbled, and passed out face-first on the floor.
McLinn zip-tied Sasko's ankles and wrists while he was
unconscious, but, as she tied Sasko's wrists, he woke up
and mumbled something and then passed out again. McLinn told
the detective she was having second thoughts at that point,
but, according to the detective, she "resigned herself
that she was going to kill Mr. Sasko and continued to bind
his wrists." McLinn retrieved a hunting knife from her
bedroom and knelt near Sasko's head. She felt for
Sasko's carotid artery and then "plunged the knife
into his neck until it hit something, which she believed was
the carpet." Then, using both hands in "a sawing
motion, " she "pulled the knife towards her so that
it cut his neck." McLinn told the detective she had
thoughts of killing someone for two years and "resigned
on Mr. Sasko within five days preceding the murder."
McLinn was charged with premeditated first-degree murder, she
raised the defense of mental disease or defect. She alleged
she suffered from dissociative identity disorder, or DID,
which used to be known as "multiple personality
disorder." The defense's expert witness, Dr. Marilyn
Hutchinson, introduced the phrase "System of Sarah,
" which she explained was "not uncommon
nomenclature for people who work with [DID]." Dr.
Hutchinson talked to four personalities or identities in
McLinn's case- Alyssa, Vanessa, Myla, and No Name. Dr.
Hutchinson explained that when she used the phrase
"System of Sarah, " she was referring to "all
of the personality parts and fragments that reside in the
body known as Sarah McLinn."
Hutchinson testified she had met with McLinn several times
over several months, for a total of 17.5 hours. In the
beginning, Dr. Hutchinson noticed McLinn had "some
unusual language patterns"-she "sometimes referred
to herself in the plural, 'we, ' 'us,
'"-and there were unusual gaps in her memory. Dr.
Hutchinson "began to suspect that there was something
other than depression or anxiety." She administered
several standardized tests and also performed a clinical
interview, which she designed to test for DID by using an
interview structure set out in the Diagnostic of Statistical
Hutchinson ultimately diagnosed McLinn with, among other
things, DID. Dr. Hutchinson explained that this diagnosis did
not describe a person with "this sort of collection of
personalities, sort of like this is a family that is all
walking around in one body." Instead, "it really is
more like the person's identity, who they are, the self,
. . . there isn't a one person there, that the self is in
fragments. That self is dissociated or split apart into
pieces and there is not a whole."
Hutchinson then explained the criteria for a DID diagnosis,
as set forth in the DSM-V. "The major criteria is a
disruption of identity characterized by two or more distinct
personality states, " she began, and "[i]t involves
marked discontinuity in the sense of self and sense of
agency." According to Dr. Hutchinson, "The
discontinuity and sense of self, the sense of agency, their
perception, their cognition or their sensory motor
functioning"-"everything"-could be affected by
disruption of identity. Dr. Hutchinson also opined McLinn met
the two secondary DSM-V criteria for DID: First, she had
"recurrent gaps in the recall of everyday events because
what one person does, one personality, one piece of the
identity does isn't usually known by the others.
Sometimes they know, but that clearly isn't always
true." Second, she exhibited "clinically
significant . . . stress or impairment" caused by the
symptoms; Dr. Hutchinson explained "you can't just
have [DID]. It has to matter."
Hutchinson offered extensive testimony about McLinn's
mental health history, drug and alcohol use, childhood
trauma, family experiences, sexual abuse, her relationship
with Sasko, mental health medications, and her performance on
diagnostic and mental status tests. Highly summarized, Dr.
Hutchinson offered her opinion that McLinn could not form
intent. She explained that "forming an intent is a
rational thought" and McLinn "did not have the
capability of a rational thought because she didn't, at
the time of that, have access to all the parts of her that
would go into making a rational choice like it works for the
rest of us."
who was "quiet, soft-spoken, apologetic, often tearful,
horrified at what had happened, scared, " was going to
commit suicide to escape her circumstances with Sasko. Myla,
who was more confident than Vanessa and whose role "was
to be the mother of Vanessa because Vanessa couldn't take
care of herself, " communicated Vanessa's suicide
plans to the System of Sarah. Alyssa did not want Vanessa to
"kill all of us, " and Alyssa's only idea to
get out of the situation was to kill Sasko. According to Dr.
Hutchinson, "Alyssa . . . perceived the greatest act of
love she could do to protect the rest of the System was to
kill Mr. Sasko." Dr. Hutchinson explained that Alyssa
drugged Sasko and bound him, but it was Vanessa who briefly
regained control and cut the ties. Then Alyssa took over,
retied Sasko's hands, and killed him.
Hutchinson also testified that "premeditation has, by
definition, malice and aforethought, and without respect for
life, and it was my conclusion that Alyssa made the choice
that to save the life of the System, she had to take the life
of Mr. Sasko." At the State's request, the district
court admonished the jury to disregard Dr. Hutchinson's
statement about the definition of premeditation, as it would
instruct the jury on the law later, "and the definition
given [by Dr. Hutchinson] is a bit contrary to the law."
State had asked Dr. William Logan, a physician and clinical
psychiatrist, to evaluate McLinn and give his professional
opinion as to whether she was capable of forming the intent
to kill Sasko. At trial, Dr. Logan testified he did not find
"any mental disorder that rose to the level that it
would have prevented her from forming intent." He noted
that the DSM-V carried cautionary instructions for its use in
forensic settings, notably that a "diagnosis alone
doesn't equate to any one particular legal conclusion
because diagnoses vary in severity and the diagnosis alone
doesn't, by itself, tell you how that individual is able
to function in that particular setting or what they are
capable of doing."
Logan, like Dr. Hutchinson, found McLinn's personal
history "significant in that she had undergone a number
of traumas, " including being molested by a neighbor
when she was a young child and dealing with her parents'
divorce. He also testified that McLinn's schooling
experience was "difficult" because a period of
early homeschooling left her "kind of deficient in
social interaction" and then she attended numerous
different schools over the years, which forced her to make
"a number of transitions."
Logan testified he had reviewed Dr. Hutchinson's report,
and "[t]he significant thing about the report, " he
explained, was that "she really didn't explain how
the [DID diagnosis] went to the issue of whether or not Miss
McLinn could form intent"-although he acknowledged the
report was later amended. Dr. Logan did not have strong
opinions about whether McLinn had DID. "I think
certainly it's a possibility, " he stated, and,
"I don't know that I could confirm it but I respect
Dr. Hutchinson and she spent a great number of hours with
[McLinn]." He also stated, "I certainly think at
this juncture Miss McLinn believes she has the
disorder." In Dr. Logan's opinion, McLinn had a
strong history for depression and anxiety, some reported
symptoms consistent with post-traumatic stress disorder, and
"it is possible that she has [DID]." In short, Dr.
Logan was "open" to Dr. Hutchinson's diagnosis,
but he "didn't think that it reached the level that
it prevented her from forming an intent to kill Mr.
Sasko." In his opinion, "with a reasonable medical
certainty, " McLinn could form intent to kill Sasko on
January 14, 2014.
jury found McLinn guilty of first-degree premeditated murder.
The district court then informed the jury there would be a
separate penalty phase proceeding, as the State had
previously given notice of its intent to seek a hard 50
sentence. The jury thereafter found McLinn committed murder
in an especially heinous, atrocious, or cruel manner. The
district court ultimately sentenced McLinn to life
imprisonment, without possibility of parole for 50 years,
followed by lifetime postrelease supervision. McLinn appealed
the guilty verdict, the denial of her motion for a new trial,
and her sentence.
raises five guilt phase issues. The first two, both of which
object to jury instructions, hinge on "intent"-what
intent was needed to establish criminal liability and what
evidence of McLinn's intent was demonstrated or supported
at trial. McLinn's third argument, also a jury
instruction issue, asks whether the jury should have been
allowed to consider the disposition of her case-specifically,
whether she would be able to get help for her mental illness
in prison-in determining her guilt. McLinn then raises an
issue of potential error in the closing statements: She
argues the district court erred by limiting her counsel from
telling the jury she would not mind a second trial. Then, in
her final guilt phase issue, she argues cumulative error
denied her a fair determination of her guilt.
Phase Issue 1: The District Court's Mental Disease or
Defect Instruction Was Not Clearly Erroneous.
first address McLinn's argument regarding the jury
instruction that addressed her mental disease or defect
defense-Instruction 13. To put that instruction and
McLinn's argument in perspective, it helps to review a
total of six jury instructions. Some of these instructions
relate to McLinn's mental disease or defect defense and
others to the State's burden of proof.
order presented to the jury, the first of these instructions,
Instruction 7, informed the jury of the basic contours of
McLinn's mental disease or defect defense and discussed
burden of proof in the context of the defense. It provided:
"The defendant raises mental disease or defect as a
defense. Evidence in support of this defense should be
considered by you in determining whether the State has met
its burden of proving that the defendant is guilty. The
State's burden of proof does not shift to the
next three involved instructions-Instructions 10, 11, and
12-drill down on the specifics of the State's burden of
proof. Instruction 10 delineated the elements the State had
to prove to establish that McLinn had committed premediated
"The defendant is charged with murder in the first
degree. . . .
"To establish this charge, each of the following claims
must be proved:
"1. The defendant intentionally killed Harold M. Sasko.
"2. The killing was done with premeditation.
"3. This act occurred on or about the 14th day of
January, 2014, in Douglas County, Kansas."
11 explained the first of these enumerated elements-the
State's burden to prove McLinn intentionally killed
Sasko: "The State must prove that the defendant
committed the crime intentionally. A defendant acts
intentionally when it is the defendant's desire or
conscious objective to do the act complained about by the
12 explained the second enumerated element and what was
encompassed in the State's burden to prove that the
killing was done with premeditation: "Premeditation
means to have thought the matter over 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
last two relevant instructions loop back to McLinn's
mental disease or defect defense that had been presented in
Instruction 7. According to Instruction 13, which is at the
heart of McLinn's argument:
"Evidence has been presented that the defendant was
afflicted by mental disease or defect at the time of the
alleged crime. This evidence is to be considered only in
determining whether the defendant had the culpable mental
state required to commit the crime. The defendant is not
criminally responsible for her acts if because of mental
disease or defect the defendant lacked the intent to kill
Harold M. Sasko.
"A defendant acts intentionally when it is a
defendant's desire or conscious objective to do the act
complained about by the state."
Instruction 14 informed the jury that if it found McLinn
"not guilty solely because the defendant, at the time of
the alleged crime, was suffering from a mental disease or
defect which rendered the defendant incapable of possessing
the required culpable mental state, then the defendant is
committed to the State Security Hospital for safekeeping and
treatment until discharged according to law."
mainly takes issue with the sentence in Instruction 13 that
instructed the jury she could not be held "criminally
responsible for her acts if because of mental disease or
defect [she] lacked the intent to kill Harold M. Sasko."
For the first time on appeal, she contends the district court
should have included premeditation in this statement, so that
the instruction would have provided that McLinn was "not
criminally responsible for her acts if because of mental
disease or defect [she] lacked the intent to kill Harold M.
Sasko or the ability to premeditate the killing,
" or some similar variant of the italicized language.
justifies this proposed wording by arguing
"premeditation requires rational thought processes that
go beyond an intent to cause a particular result." Given
that requirement, she argues the jury could have found that
McLinn's "fragmented psyche prevented her from
rationally reflecting upon the decision to kill Mr.
Sasko"-especially since the System of Sarah "was
far from unified" about the desirability of Sasko's
death. Stated another way, McLinn primarily argues that
premeditation requires rational reflection on the act of
killing, and her "mental disease or defect defense
called into doubt whether she was capable of such rational
thought." If the jury accepted Dr. Hutchinson's
testimony about her psyche, she explains, it likely would
have found McLinn incapable of forming the rational thought
necessary for premeditation. She argues the district court,
by using Instruction 13 to limit the reach of her mental
disease or defect defense to only the element of intent,
prevented the jury from considering whether her mental
disease prevented her ability to premeditate.
State agrees "premeditation is clearly a state of
mind." It also acknowledges some defendants, in
situations similar to McLinn's, use the mental disease or
defect defense to challenge both the premeditation and intent
elements. But it argues McLinn cited no cases explicitly or
implicitly requiring the district court to include
both premeditation and intent in the mental disease or defect
instruction. In McLinn's case, the State argues, such an
instruction would not have been factually appropriate because
at trial both parties primarily focused on whether McLinn
could form intent, not premeditation. In any event, however,
the State contends that even if Instruction 13 was erroneous
McLinn suffered no prejudice.
essence, McLinn argues that Instruction 13, as given, misled
the jury and was not legally or factually appropriate. See
State v. Seba, 305 Kan. 185, 192, 380 P.3d 209
When analyzing jury instruction issues, we follow a
"(1) determining whether the appellate court can or
should review the issue, i.e., whether there is a
lack of appellate jurisdiction or a failure to preserve the
issue for appeal;
(2) considering the merits of the claim to determine whether
error occurred below; and
(3) assessing whether the error requires reversal,
i.e., whether the error can be deemed
harmless." State v. Williams, 295 Kan. 506,
510, 286 P.3d 195 (2012).
See also, e.g., State v. Johnson, 304 Kan. 924, 931,
376 P.3d 70 (2016) (listing four steps, in which the second
step is split into considering two types of errors).
"first and third step are interrelated in that whether a
party has preserved a jury instruction issue will affect
[this court's] reversibility inquiry at the third
step." State v. Bolze-Sann, 302 Kan. 198, 209,
352 P.3d 511 (2015).
the first step, there is no dispute McLinn did not object to
the instruction now at issue. "When a party fails to
object to or request a jury instruction at trial, K.S.A.
22-3414(3) limits appellate review to a determination of
whether the instruction was clearly erroneous."
State v. Knox, 301 Kan. 671, 680, 347 P.3d 656
(2015); see K.S.A. 2013 Supp. 22-3414(3).
second step, in determining whether an error actually
occurred, we "consider whether the subject instruction
was legally and factually appropriate, employing an unlimited
review of the entire record." Williams, 295
Kan. 506, Syl. ¶ 4; see State v. Plummer, 295
Kan. 156, 160-63, 283 P.3d 202 (2012).
third step, which is our reversibility inquiry when applying
the clear error standard, we will only reverse the district
court if an error occurred and we are "'firmly
convinced that the jury would have reached a different
verdict had the instruction error not occurred.'"
Knox, 301 Kan. at 680 (quoting Williams,
295 Kan. 506, Syl. ¶ 5); see State v. Tahah,
302 Kan. 783, 793, 358 P.3d 819 (2015) (explaining the clear
error standard is in reality a heightened standard of
harmlessness, and less of a standard of review). The party
claiming a clear error has the burden to demonstrate the
necessary prejudice. Knox, 301 Kan. at 680.
conclude the district court did not error by limiting
Instruction 13 to the element of intent. The instruction was
appropriate as given and would have been inappropriate if
changed to the wording McLinn apparently proposes-"The
defendant is not criminally responsible for her acts if
because of mental disease or defect the defendant lacked the
intent to kill Harold M. Sasko or the ability to
premeditate the killing." The State's
concession that premeditation is a mental state and, thus,
impliedly its concession that the instruction would have been
appropriate, although not required, does not bind our review
of this legal issue. See Ritchie Paving, Inc. v. City of
Deerfield, 275 Kan. 631, 641, 67 P.3d 843 (2003)
("Stipulations as to what the law is are not effective
and not controlling on this court.").
argument is rooted in the pattern instruction relating to the
mental disease or defect defense, which concludes with these
words: "if because of mental disease or defect the
defendant lacked the [set out the particular mental state
which is an element of the crime or crimes
charged]." PIK Crim. 4th 52.120. This italicized
wording broadly refers to "mental state, " and our
caselaw has occasionally referred to premeditation as a
mental state-one part of the mental state inquiry. See
State v. Jones, 279 Kan. 395, 404, 109 P.3d 1158
(2005) ("While the evidence points to [the defendant] as
the perpetrator, legitimate questions exist as to his state
of mind at the time of the murder, i.e., whether
[the victim] was killed with premeditation or simply with
intent, however prolonged."). McLinn thus reasons, after
considering the pattern instruction and our precedent, that
the jury should have been instructed to consider whether her
mental disease or defect prevented her from being able to
premeditate killing Sasko.
the broad language in PIK and our caselaw, we conclude the
precise question under Kansas' current statutes is not
whether premeditation is a "mental state" but
whether it is by legal definition a "culpable
mental state." The Legislature has provided for this
precise and focused inquiry in the current mental disease or
defect defense statute, which became effective July 1, 2011
(more than two years before Sasko's murder). That
statute, K.S.A. 2013 Supp. 21-5209, states: "It shall be
a defense to a prosecution under any statute that the
defendant, as a result of mental disease or defect, lacked
the culpable mental state required as an element of
the crime charged. Mental disease or defect is not otherwise
a defense." (Emphasis added.) In turn, K.S.A. 2013 Supp.
21-5202(a) provides that "[a] culpable mental state may
be established by proof that the conduct of the accused
person was committed 'intentionally, '
'knowingly' or 'recklessly.'"
Premeditation is not listed as a "culpable mental
these three listed statutory culpable mental states,
"intentionally" is the only one used in the
statutory elements of first-degree premeditated murder. And,
in turn, "intentionally" is the only culpable
mental stated used in Instruction 10, which sets out the
elements of first-degree premeditated murder as
particularized to the facts of this case. See K.S.A. 2013
Supp. 21-5209. The district court's jury instructions
incorporated these concepts through Instruction 7 (directing
the jury to consider McLinn's defense), Instruction 11
(defining "intent" as McLinn's desire or
conscious objective to do the act), and Instruction 13
(instructing the jury that McLinn was "not criminally
responsible for her acts if because of mental disease or
defect the defendant lacked the intent to kill Harold M.
essentially asks this court to broaden the legislatively
enacted definition of "culpable mental state" to
include premeditation, but she offers no authority for us to
do so. And indeed, as we frequently reiterate, courts
"read the language as it appears, without adding or
deleting words" to unambiguous statutes. Landrum v.
Goering, 306 Kan. 867, 872-73, 397 P.3d 1181 (2017).
Applying that rule here, we perceive no ambiguity in the
Legislature's limitation of the mental disease or defect
defense to culpable mental states, a statutorily defined
term. K.S.A. 2013 Supp. 21-5209. Nor is there ambiguity in
K.S.A. 2013 Supp. 21-5202(a)'s limitation of the phrase
"culpable mental state" to actions made
intentionally, knowingly, or recklessly.
of offering authority for expanding the current statutory
definition of "culpable mental state, " McLinn
focuses on our past decisions involving the mental disease or
defect defense, intent, and premeditation. As we previously
noted, these decisions occasionally refer to premeditation as
part of a "state of mind inquiry" and impliedly or
explicitly approve instructions informing the jury that a
defendant was not responsible for his or her acts if
"'because of mental disease or defect the defendant
lacked the premeditation and intent required for
first-degree murder.'" (Emphasis added.) State
v. White, 279 Kan. 326, 333, 109 P.3d 1199 (2005)
(White I); see also State v. White, 284
Kan. 333, 345, 161 P.3d 208 (2007) (White II);
State v. Henry, 273 Kan. 608, 619, 44 P.3d 466
(2002). But see State v. Washington, 275 Kan. 644,
675, 68 P.3d 134 (2003) (court instructed "'the
defendant is not criminally responsible for his acts if
because of mental disease or defect the defendant lacked the
necessary element of intent to kill'").
decisions, however, were decided under the previous version
of the mental disease or defect defense statute, K.S.A.
22-3220. Under that version, it was a defense to prosecution
"that the defendant, as a result of mental disease or
defect, lacked the mental state required as an
element of the offense charged." (Emphasis added.)
K.S.A. 22-3220 (repealed July 1, 2011). This earlier version
did not use the wording "culpable mental
even under these earlier cases, premeditation is more
properly understood as a temporal consideration to the mental
state of intent: Premeditation "means to have thought
the matter over beforehand, " meaning "to have
formed the design or intent to kill before the act." In
other words, our premeditation inquiry asks when the
intent to kill was formed. State v. Hebert, 277 Kan.
61, 88, 82 P.3d 470 (2004) ("'[T]he concept of
premeditation requires more than the instantaneous,
intentional act of taking another's life.'"
[quoting PIK Crim. 3d 56.04(b)]); see also PIK Crim. 4th
54.110 (requiring the State to prove the defendant
"intentionally killed" the victim and the killing
"was done with premeditation"); Knox, 301
Kan. at 681 ("'Premeditation means to have thought
the matter over beforehand and does not necessarily mean an
act is planned, contrived, or schemed beforehand; rather,
premeditation indicates a time of reflection or
deliberation.'" [quoting State v. Kettler,
299 Kan. 448, 466, 325 P.3d 1075');">325 P.3d 1075 (2014)]).
example, when we referred to premeditation as a mental state
in Jones, one of the cases McLinn cites, we did so
in the context of whether Samuel Jones, Jr., formed the
intent to kill before he killed his victim by strangulation
or whether he merely acted with intent to kill formed at the
time of death. See Jones, 279 Kan. at 402 ("We
begin by observing that premeditation is the process of
thinking about a proposed killing before engaging in the
counters by pointing to the portion of Jones where
this court asserted premeditation "means something more
than the instantaneous, intentional act of taking
another's life." Jones, 279 Kan. at 402.
This "something more" does not refer to a
heightened culpable mental state other than
"intentionally, " however. Instead, the
"something more" means that intent cannot be formed
in the instant of the act. See State v. Saleem, 267
Kan. 100, 105, 977 P.2d 921 (1999) (identifying premeditation
as a state of mind but describing it as "relating to a
person's reasons and motives for acting as he or she did,
" not as part of the state of mind requirement); see
also State v. Scott, 271 Kan. 103, 108-09, 21 P.3d
516 (2001) (rejecting a defendant's argument that the
State failed to prove premeditation because he did not have
time to think about killing the victim prior to doing so, as
"[p]remeditation is the time of reflection or
discussions in these cases indicate, premeditation cannot be
separated from an intent to kill-premeditation involves
forming the intent beforehand. Conceptually, these cases are
consistent with the current mental disease or defect defense
statute that requires the defendant lack the culpable mental
state for the crime charged. The instructions informed the
jury that McLinn had to (1) intend to kill Sasko and (2)
premeditate the killing, meaning forming the intent to kill
before the act. These instructions make it clear that McLinn
had to form intent at both temporal points-before the killing
and at the time of the killing. See K.S.A. 2013 Supp.
21-5209; K.S.A. 2013 Supp. 21-5202.
Beier, in dissent, creates a scenario that would blur this
distinction. She argues K.S.A. 2013 Supp. 21-5202(a) allows
for culpable mental states other than the three statutorily
listed mental states of intentionally, knowingly, and
recklessly. She concludes this possibility exists because
21-5202(a) includes the word "may." The "may,
" however, relates to the possibility of proof-"a
culpable mental state may be established by
proof" of one of the three culpable mental states. In
context, use of the word "may" does not allow for
reading the statute as allowing intentionally, knowingly,
recklessly plus other mental states. This
interpretation becomes more apparent through an examination
of other provisions of 21-5202. For example, subsection (b)
classifies the three listed culpable mental states
"according to relative degrees, from highest to
lowest." In doing so, it makes no provision for other
possibilities. Then, subsection (c) explains a consequence of
that ranking: "Proof of a higher degree of culpability
than that charged constitutes proof of the culpability
charged." Application of that rule would not work with
premeditation in the mix regardless of how a court ranked the
culpability of "premeditation" as compared to
"intentionally." As we have discussed, the State
must prove premeditation and an intent to kill at
the time the murder is committed. Proving premeditation does
not substitute for proving intent at the time of the
murderous act, and proving intent at the time of the act does
not substitute for premeditation. K.S.A. 2013 Supp. 21-5202
makes no allowance for premeditation as a culpable mental
state. And, as discussed, under K.S.A. 2013 Supp. 21-5209
"[i]t shall be a defense to a prosecution under any
statute that the defendant, as a result of mental disease or
defect, lacked the culpable mental state required as
an element of the crime charged. Mental disease or defect is
not otherwise a defense." (Emphasis added.)
has not established an error in the challenged jury
Phase Issue 2: The District Court Did Not Clearly Err In
Failing to Sua Sponte Instruct the Jury on Second-Degree
also contends the district court erred in not instructing the
jury on the lesser included offense of second-degree
intentional murder, although she acknowledges she did not
request this instruction. As with the previous issue, McLinn
primarily argues that premeditation requires rational
reflection on the act of killing, which, according to Dr.
Hutchinson's testimony, McLinn could not accomplish. She
argues that if the jury accepted portions of Dr.
Hutchinson's testimony it likely would have found McLinn
incapable of forming the rational thought necessary for
premeditation-and, by extension, it would likely have
convicted her of second-degree intentional murder had it been
so instructed. But by not providing the lesser included
offense instruction, the jury was deprived of this option. In
support of this argument, McLinn urges this court to note a
particular aspect of the State's expert's testimony:
Dr. Logan dismissed McLinn's mental ...