Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. McLinn

Supreme Court of Kansas

January 26, 2018

State of Kansas, Appellee,
v.
Sarah Gonzales McLinn, Appellant.

         SYLLABUS

         1. 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.

         2. Second-degree intentional murder is a lesser included offense of first-degree premeditated murder.

         3. 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 included offense.

         4. A 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.

         5. A 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 divided verdict.

         6. A single error will not constitute cumulative error.

         7. Under the facts of this case, sufficient evidence was presented of an especially heinous, atrocious, or cruel murder.

         8. A district court does not abuse its discretion by declining to define heinous, atrocious, or cruel when instructing the jury.

         9. 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.

         10. A 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.

         11. 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.

         12. If 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.

         Appeal from Douglas District Court; Paula B. Martin, judge.

          Samuel 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 appellee.

          OPINION

          Luckert, J.

         In 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 life sentence.

         On 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 conviction.

         McLinn 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.

         Facts and Procedural Background

         A 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.

         Sasko's 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.

         The 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.

         A 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."

         After 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."

         Dr. 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 Medicine (DSM-V).

         Dr. 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."

         Dr. 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."

         Dr. 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."

         Vanessa, 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.

         Dr. 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."

         The 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."

         Dr. 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."

         Dr. 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.

         The 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.

         Guilt Phase Issues

         McLinn 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.

         Guilt Phase Issue 1: The District Court's Mental Disease or Defect Instruction Was Not Clearly Erroneous.

         We 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.

         In the 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 defendant."

         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 first-degree murder:

"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."

         Instruction 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 State."

         Instruction 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 another's life."

         The 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."

         The Parties' Arguments

         McLinn 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.

         She 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.

         The 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.

         Standard of Review

         In 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 (2016).

When analyzing jury instruction issues, we follow a three-step process:
"(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).

         The "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).

         Applying 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).

         At the 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).

         At the 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.

         Analysis

         We 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.").

         McLinn's 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.

         Despite 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 state."

         Of 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. Sasko").

         McLinn 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.

         Instead 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'").

         These 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 state."

         Moreover, 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)]).

         For 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 homicidal conduct.").

         McLinn 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 deliberation").

         As the 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.

         Justice 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.)

         McLinn has not established an error in the challenged jury instruction.

         Guilt Phase Issue 2: The District Court Did Not Clearly Err In Failing to Sua Sponte Instruct the Jury on Second-Degree Intentional Murder.

         McLinn 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.