Under the first step of the two-part test for prosecutorial
error set forth in State v. Sherman, 305
Kan. 88, 378 P.3d 1060 (2016), an appellate court analyzes
whether the prosecutor's statements fall outside the wide
latitude afforded prosecutors to conduct the State's case
and attempt to obtain a conviction in a manner that does not
offend the defendant's constitutional right to a fair
is within a prosecutor's permissible latitude to object
that the defense is about to go beyond the admitted evidence
in its summation to the jury.
appellate court will review allegations of judicial
misconduct that were not preserved at trial when the
defendant's right to a fair trial is implicated. Further,
K.S.A. 2016 Supp. 21-6619(b) provides the authority for this
court to notice unassigned errors in death penalty appeals.
appellate standard of review on claims of judicial misconduct
is unlimited. The reviewing court will examine the particular
facts and circumstances of the case to determine whether the
judicial conduct, including comments other than jury
instructions, manifests bias, prejudice, or partiality, or
otherwise significantly undermines the fairness or
reliability of the proceedings.
district judge is charged with preserving order in the
courtroom and with the duty to see that justice is not
obstructed by any person. A judge may caution venire persons
to refrain from making comments that could contaminate the
jury pool, but the better practice would be to clarify that
panel members will be provided an opportunity to raise any
personal concerns they may have outside the presence of the
other venire members.
trial judge has broad discretion to control the courtroom
proceedings, but when it is necessary to comment on a
counsel's conduct, especially in the jury's presence,
the judge should do so in a dignified, restrained manner;
avoid repartee; limit comments and rulings to those
reasonably required for the orderly progress of the trial;
and refrain from unnecessarily disparaging persons or issues.
Specifically, when a judge finds it necessary to request that
counsel complete a voir dire examination more quickly, the
better practice would be for the judge to make the request
out of the presence of the venire panel.
is misconduct for a judge, after having admonished defense
counsel during opening statement about making statements
without witness support, to give a special instruction after
the opening statements, advising the jury that statements,
arguments, and remarks of counsel are not evidence and may be
disregarded if not supported by the evidence, when the
instruction is prefaced by the judge's remark that the
court normally does not do so.
While the trial court is allowed to question witnesses from
the bench in order to fully develop the truth, the better
practice is for the judge to discuss the matter with counsel
outside the presence of the jury and request counsel to pose
the questions necessary to clarify the matter.
trial judge's erroneous ruling on a party's
objection, standing alone, is not grounds for a finding of
judicial misconduct. A trial judge's statement
"it's improper" when ruling on an objection is
not per se misconduct.
Remarks to the jury that are legally and factually accurate
and that do not demonstrate bias, prejudice, or partiality to
either party do not constitute judicial misconduct.
party asserting judicial misconduct has the burden to show
that any misconduct found to exist actually prejudiced that
party's substantial rights.
Under the facts of this case, the district court erred when
it refused to give the defense's requested instruction on
expert witness credibility because the instruction was
legally appropriate and factually supported. Therefore, the
next step on appellate review is to apply the harmless error
paradigm set out in State v. Ward, 292 Kan. 541,
565, 256 P.3d 801 (2011).
K.S.A. 22-3220, replacing the traditional insanity defense
with a mens rea approach, does not violate the
defendant's right to due process under the United States
or Kansas Constitutions.
is not legally appropriate to give a felony-murder
instruction as a lesser included offense instruction for a
capital murder charge, and a trial court does not commit
clear error by failing to give such an instruction sua
Prohibiting the defense from asking prospective jurors about
their views on the death penalty in the presence of the other
venire persons is not erroneous when defense counsel is
permitted to make such an inquiry individually, outside the
presence of the other venire persons.
Cumulative trial errors, when considered collectively, may
require reversal of a defendant's conviction when the
totality of circumstances substantially prejudiced the
defendant and denied the defendant a fair trial. The
cumulative error rule does not require reversal if the
evidence is overwhelming against the defendant.
Eighth Amendment to the United States Constitution prohibits
the infliction of cruel and unusual punishments. The United
States Supreme Court has identified three subcategories of
categorical proportionality Eighth Amendment challenges: (1)
Based on the nature of the offense; (2) based on the
characteristics of the offender; and (3) based on a
combination of the offense and the offender, implicating a
particular type of sentence as it applies to an entire class
analyzing an Eighth Amendment categorical proportionality
challenge based on an offender's characteristics, the
court first considers objective indicia of society's
standards, as expressed in legislative enactments and state
practice, to determine whether there is a national consensus
against the sentencing practice at issue. Next, guided by the
standards elaborated by controlling precedents and by the
court's own understanding and interpretation of the
Eighth Amendment's text, history, meaning, and purpose,
the court must determine in the exercise of its own
independent judgment whether the punishment in question is
unconstitutionally cruel and unusual.
Pursuant to our decision in State v. Kleypas, 305
Kan. 224, 335-37, 382 P.3d 373 (2016), we again decline to
declare a categorical prohibition against imposing a death
sentence based on the broad classification of mental illness.
is not unconstitutionally duplicative to use the same conduct
of the defendant to establish both an element of capital
murder and the existence of an aggravating circumstance.
aggravating factor that the crime was committed in a heinous,
atrocious, or cruel manner is not so vague and duplicative
that it fails to narrow the class of persons who are
constitutionally death penalty eligible.
standard of review on appeal as to the sufficiency of
evidence regarding an aggravating circumstance is whether,
after review of all of the evidence, viewed in the light most
favorable to the prosecution, the appellate court is
convinced that a rational factfinder could have found the
existence of the aggravating circumstance beyond a reasonable
Shooting deaths are not inherently heinous, atrocious, or
cruel. But where a defendant previously electronically
stalked, threatened physical harm, and allegedly battered one
of the victims, before methodically going through a house
shooting each of the victims in turn; and where the victims
were conscious long enough to suffer the physical pain of
their injuries and the mental anguish of their impending
death; while also being aware that other victims were being
shot, the evidence was sufficient to support the jury's
verdict that the capital murder was committed in a heinous,
atrocious, or cruel manner.
from Osage District Court; Phillip M. Fromme, judge.
Carver-Allmond, of Capital Appellate Defender Office, argued
the cause, and Sarah Ellen Johnson, of the same office, was
with her on the briefs for appellant.
Kristafer R. Ailslieger, deputy solicitor general, argued the
cause, and Natalie Chalmers, assistant solicitor general, and
Derek Schmidt, attorney general, were with him on the brief
convicted James Kraig Kahler of aggravated burglary and
capital murder under K.S.A. 21-3439(a)(6) for fatally
shooting his wife, his wife's grandmother, and his two
daughters. Kahler appeals the capital murder conviction and
the ensuing sentence of death; our review is automatic under
K.S.A. 2016 Supp. 21-6619.
raises 10 issues on appeal. Some of the raised issues present
questions decided unfavorably to Kahler in prior cases, and
Kahler presents no new argument or authority that would
persuade us to change our holdings on those issues. Likewise,
Kahler fails to convince us that his other challenges warrant
a reversal of his capital murder conviction or a vacation of
his death sentence. We summarize our specific holdings as
• The State did not commit prosecutorial error by
objecting during Kahler's closing argument.
• The district court judge engaged in one incident of
judicial misconduct that does not require reversal.
• The district court judge erred in refusing to give a
requested expert witness instruction, but the error was
• K.S.A. 22-3220, which adopted the mental disease or
defect defense, did not unconstitutionally abrogate
Kansas' former insanity defense.
• Because felony murder is not a lesser included offense
of capital murder, the district court judge did not err in
failing to give a lesser included instruction on felony
• The district court judge did not prohibit defense
counsel from questioning prospective jurors during voir dire
about their views on the death penalty.
• The cumulative effect of trial errors did not
substantially prejudice Kahler so as to deny him a fair
• The Kansas death penalty is not a categorically
disproportionate punishment for offenders who are severely
mentally ill at the time they commit their crimes.
• The two aggravating factors relied upon by the State
to support the death penalty are not unconstitutionally vague
• There was sufficient evidence presented by the State
to establish that the killings in this case were committed in
a heinous, atrocious, or cruel manner.
we affirm Kahler's capital murder conviction and his
sentence of death.
and Procedural Background
recitation of some family history preceding the murders is
necessary to put Kahler's crimes in context. In 2008, the
Kahler family-husband, Kahler; wife, Karen; teenage
daughters, Emily and Lauren; and 9-year-old son, Sean-was
living in Weatherford, Texas. Kahler was the director of the
public utilities department, and Karen was a personal
trainer. Both adults had successful careers. Acquaintances
described the Kahlers as a perfect family. Kahler was
extremely proud of his family; it was his top priority.
summer, Kahler took a new job as the director of water and
light for the city of Columbia, Missouri. He moved to
Columbia, while Karen and the children stayed in Texas,
planning to follow him in the fall. Before Kahler left for
Columbia, Karen told him she was interested in experimenting
by engaging in a sexual relationship with a female trainer
with whom she worked. Kahler assented to the sexual
thought the affair would end when Karen and the children
moved to Missouri; however, it did not. At a New Year's
Eve party in Weatherford, Kahler was embarrassed by Karen and
her lover's behavior, and the evening resulted in a
shoving match between the Kahlers. The pair attempted
marriage counseling, but by mid-January 2009, Karen filed for
divorce. In mid-March, Karen made a battery complaint against
Kahler, which resulted in an arrest warrant being served on
Kahler at a city council meeting. Because Kahler held public
office, his arrest was widely publicized. Shortly thereafter,
Karen took the children and moved out of Kahler's
disintegration of his marriage and family relationships
affected Kahler's conduct, both personally and
professionally. Kahler's supervisor and another colleague
both noted Kahler's increasing preoccupation with his
personal problems and decreasing attention to his job. By
August 2009, the city had fired Kahler. Concerned about
Kahler's well-being, his parents traveled to Columbia and
moved Kahler back to their ranch near Meriden, Kansas.
that year, at Thanksgiving, Sean joined Kahler at the family
ranch in Meriden, while Karen and the girls went to
Karen's sister's home in Derby. The family had a
long-standing tradition of spending the weekend after
Thanksgiving at the home of Karen's grandmother, Dorothy
Wight, in Burlingame, Kansas. Arrangements had been made for
Karen to pick up Sean in Topeka on Saturday, November 28, and
take him to Wight's residence in Burlingame. That
morning, Sean, who had been enjoying his time at the Meriden
ranch, fishing and hunting with his father, called Karen to
ask if he could stay at the ranch. Karen denied permission,
and while Kahler was out running an errand, Kahler's
mother took Sean to meet Karen in Topeka.
5:30 and 6 that evening, in Burlingame, a neighbor of
Wight's called police about a man in a red Ford Explorer
near her home whom she suspected of criminal activity. The
Explorer was later determined to be Kahler's vehicle.
Around 6 p.m., Sean and Karen were standing in the kitchen of
Wight's home, while Emily, Lauren, and Wight were
elsewhere in the house. Kahler entered Wight's house
through the back door, into the kitchen, and started
shooting. He shot Karen twice but did not attempt to harm
Sean. After Kahler moved through the kitchen to shoot the
other victims, Sean ran out the back door and to a
neighbor's home where the police were called.
the same time, Wight's Life Alert system activated a call
for emergency assistance and that in turn resulted in a 911
call to law enforcement. The system also created a recording
of the events in the house.
officers arrived, Karen was lying on the kitchen floor,
unconscious and barely breathing. Emily, who had also been
shot twice, was dead on the living room floor. Wight was
sitting in a chair in the living room, suffering from a
single gunshot wound to the abdomen, but conscious. Lauren,
who had been shot twice, was found upstairs, conscious but
having trouble breathing. Kahler was no longer in the house,
but both Wight and Lauren told the first responders that
Kahler was the person who had shot them. Karen and Lauren
died from their wounds later that evening. Wight survived a
few days but ultimately succumbed to her wounds as well.
managed to elude law enforcement that evening but was found
walking down a country road the next morning. He surrendered
without incident. The State charged Kahler with one count of
capital murder, or, in the alternative, four counts of
premeditated first-degree murder, as well as one count of
aggravated burglary for the unauthorized entry into
trial, the defense did not dispute that it was Kahler who
shot the victims. Rather, the defense attempted to establish
that severe depression had rendered Kahler incapable of
forming the intent and premeditation required to establish
the crime of capital murder. The defense presented testimony
from Dr. Stephen Peterson, a forensic psychiatrist, who
testified that Kahler was suffering from severe major
depression at the time of the crime and that "his
capacity to manage his own behavior had been severely
degraded so that he couldn't refrain from doing what he
did." Defense counsel, however, did not specifically ask
Dr. Peterson whether Kahler had the capacity to premeditate
or to form the requisite intent to commit the crimes. The
State countered with the expert testimony of Dr. William
Logan, also a forensic psychiatrist, who opined that Kahler
was capable of forming the requisite intent and
closing arguments, defense counsel asserted that Kahler was
incapable of forming the requisite premeditation or intent at
the time of the killings. In return, the State argued that
the defense expert had failed to specifically address that
point, while the State's expert had directly stated that
Kahler was capable of premeditating the murder and
forming the requisite intent to kill.
jury convicted Kahler of capital murder. After hearing
additional evidence in the penalty phase, the same jury
recommended the death sentence.
noted, Kahler raised 10 issues on appeal, all of which are
argued in the context of the capital murder conviction and
the ensuing death sentence. Consequently, we will review only
that conviction and sentence and will address each issue in
the order presented.
first issue, Kahler alleges that the prosecutor engaged in
prosecutorial misconduct when she objected during defense
counsel's closing argument. Defense counsel was
discussing the recording produced during the commission of
the crime by the Life Alert system. A male voice, presumably
Kahler's, had been captured on the recording. Defense
counsel was about to state the words spoken by that male
voice, when the prosecutor interrupted, objecting that
defense counsel's argument constituted improper unsworn
testimony based on what defense counsel thought the
voice had said. The district court sustained the objection.
of Review/Error Analysis
argument, both parties acknowledged that this court's
decision in State v. Sherman, 305 Kan. 88, 378 P.3d
1060 (2016), although decided after the briefs in this case
were filed, now controls the analysis of this issue.
Sherman ended the practice followed by State v.
Tosh, 278 Kan. 83, 91 P.3d 1204 (2004) overruled by
Sherman, 305 Kan. 88, of attempting to factor a
prosecutor's ill will and gross misconduct into the
prejudice step of the two step error/prejudice analysis when
reviewing an allegation of prosecutorial misconduct on
appeal. Sherman substituted an analysis that is
focused on the defendant's due process right to receive a
continues to utilize a two-step error/prejudice framework and
the first step-the error analysis-remains the same. See
State v. Kleypas, 305 Kan. 224, 316, 382 P.3d 373
(2016). "Under the first step, we will continue to
analyze whether the prosecutor's statements 'fall
outside the wide latitude afforded prosecutors to conduct the
State's case and attempt to obtain a conviction in a
manner that does not offend the defendant's
constitutional right to a fair trial.'" 305 Kan. at
316 (quoting Sherman, 305 Kan. 88, Syl. ¶ 7).
If error occurred, the State must prove beyond a reasonable
doubt that "'the error complained of will not or did
not affect the outcome of the trial in light of the entire
record, i.e., where there is no reasonable
possibility that the error contributed to the
verdict.'" Kleypas, 305 Kan. at 316
(quoting Sherman, 305 Kan. 88, Syl. ¶ 8).
maintains that his right to a fair trial was violated when
the prosecutor objected to defense counsel's attempt in
closing argument to repeat what was said by the male voice on
the Life Alert recording. The prosecutor's objection was
based on the assertion that defense counsel was not allowed
to state his opinion of the content of the tape and doing so
amounted to improper testimony.
argument, Kahler argued that the objection was error because
it was motivated by bad faith and attempted to liken it to a
misstatement of law. In other words, Kahler attempts to move
the bad faith analysis previously conducted under the
prejudice step to the error step. But ill will has never been
part of the error determination. And Sherman is
clear that measuring prejudice by attempting to discern the
prosecutor's motivation has been problematic in the past
and is no longer appropriate to our analysis of prosecutorial
error within a criminal appeal. Thus, the question before the
court under Sherman, as it was under previous
caselaw, is simply whether making an objection, even one
based on an erroneous application of law, was outside the
wide latitude afforded the prosecutor in making her case to
conclude that it is within the prosecutor's permissible
latitude to object that the defense is about to go beyond the
admitted evidence in its summation to the jury. As we discuss
below, the district court's ruling on the
prosecutor's objection may have been erroneous. But this
fact has no bearing on the determination of whether the
objection itself was prosecutorial error.
alleges that the district court judge engaged in misconduct
throughout the trial, which cast his defense in a bad light,
favored the State's case, and denied him his right to a
fair trial. Kahler points to six specific instances to
illustrate his argument.
trial, defense counsel failed to object to any of the claimed
misconduct. But an appellate court will review allegations of
judicial misconduct that were not preserved at trial when the
defendant's right to a fair trial is implicated.
State v. Kemble, 291 Kan. 109, 113, 238 P.3d 251
(2010); State v. Tyler, 286 Kan. 1087, 1090, 191
P.3d 306 (2008); State v. Brown, 280 Kan. 65, 70,
118 P.3d 1273 (2005). In addition, we are statutorily
obligated to review this issue because of the death sentence
imposed. K.S.A. 2016 Supp. 21-6619(b) (court shall review all
asserted errors in a death sentence appeal).
standard of review on claims of judicial misconduct is
unlimited. We examine the particular facts and circumstances
of the case to determine whether judicial conduct including
comments, other than jury instructions, rise to the level of
judicial misconduct. Kemble, 291 Kan. at 113.
Kansas Code of Judicial Conduct (KCJC) requires a judge to
act in a manner that promotes public confidence in the
integrity and impartiality of the judiciary. Canon 1, Rule
1.2 (2017 Kan. S.Ct. R. 431); see State v. Miller,
274 Kan. 113, 128, 49 P.3d 458 (2002) ("judge should be
the exemplar of dignity and impartiality, should exercise
restraint over judicial conduct and utterances, should
suppress personal predilections, and should control his or
her temper and emotions").
erroneous ruling by a judge, standing alone, will not
establish judicial misconduct. Canon 2, Rule 2.2, Comment 
(2017 Kan. S.Ct. R. 433) (good-faith errors of fact or law do
not violate KCJC). Rather, the reviewing court will look for
conduct that manifests bias, prejudice, or partiality, or
otherwise significantly undermines the fairness or
reliability of the proceedings. Cf. Canon 2, Rule 2.3,
Comment  (2017 Kan. S.Ct. R. 434) ("judge who
manifests bias or prejudice in a proceeding impairs the
fairness of the proceeding and brings the judiciary into
disrepute"). The complaining party has the burden to
establish that judicial misconduct occurred and that the
misconduct prejudiced the party's substantial rights.
Kemble, 291 Kan. at 113. "'If a proper and
reasonable construction will render the remark
unobjectionable, the remark is not prejudicial.'"
Brown, 280 Kan. at 70 (quoting Miller, 274
Kan. at 118).
those ground rules to guide us, we turn to the individual
instances alleged by Kahler to be judicial misconduct,
followed by a consideration of their cumulative effect.
Warning a voir dire panel against outbursts of
first complains of remarks the district judge made to a panel
of the jury pool during voir dire. Four panels of venire
members were questioned. The remarks Kahler finds
objectionable were made to the third panel and were part of
the district judge's preliminary remarks explaining voir
dire. In addition to asking the panel members to speak
clearly for the court reporter and to pay attention to all
the questions asked whether directed specifically to them or
not, the district judge added the following caution:
"It's also important that you be careful. We want
you to talk frankly, we want you to answer questions and
speak from your heart, but we don't want any outbursts of
opinions that might prejudice the rest of this panel so
before you speak in any manner like that, think twice. And I
warned you, anyway, regarding that, regarding your personal
argues these remarks to the third panel dissuaded the panel
members from expressing their opinions and inhibited the voir
dire process. The State counters that, put in context, the
district judge's remarks were nothing more than a
reasonable admonition to prevent one of the potential jurors
from tainting the rest of the panel and were well within the
district judge's responsibility to control the courtroom.
We agree with the State.
district judge is charged with preserving order in the
courtroom and with the duty to see that justice is not
obstructed by any person. State v. Rochelle, 297
Kan. 32, 36-37, 298 P.3d 293 (2013). The record establishes
that throughout the voir dire of the first two panels, the
district judge had expressed concern about questioning by the
defense that might elicit panel members' views on the
death penalty. We have approved of similar remarks in other
cases where the district judge sought to prevent
contamination of the jury pool. See, e.g., State v.
Aikins, 261 Kan. 346, 365, 932 P.2d 408 (1997) (trial
court warned potential jurors not to "blurt out"
any information they might have about the case),
disapproved on other grounds by State v. Warrior,
294 Kan. 484, 277 P.3d 1111 (2012); State v. Hayden,
281 Kan. 112, 130, 130 P.3d 24 (2006) (district judge
cautioned jurors to tread carefully so that other potential
jurors would not be prejudiced by intemperate comments and
asked very specific questions so that venire members did not
spontaneously volunteer unnecessary prejudicial information).
note, however, that the better practice would have included a
clarification by the district judge that panel members would
have an opportunity to raise any personal concerns outside
the presence of the other venire members. Cf.
Aikins, 261 Kan. at 365 (defense counsel encouraged
potential jurors to approach judge individually if they had
racial prejudices which they did not want to express in front
of panel). But it is clear that the district judge's
failure to include such a clarification to the third panel
was an oversight, as his comments to the fourth panel
included just such a statement.
we find no misconduct in the district judge's comments to
the third panel.
Asking defense counsel to move along
complains that the district judge committed misconduct when
he asked defense counsel to speed up his voir dire
questioning. During the defense voir dire of the third panel
on the second morning of jury selection, the district judge
told defense counsel, "we need to move through this a
little faster if we can. I realize you have a right to all
your questions but we're running behind now." Kahler
argues this shows bias because the judge did not make a
similar request of the State and the defense questioning had
not exceeded the time afforded the prosecutor.
trial judge has broad discretion in controlling the courtroom
proceedings. Rochelle, 297 Kan. at 37;
Kemble, 291 Kan. at 114. "When it is necessary
to comment on counsel's conduct, especially in the
jury's presence, the trial court should do so in a
dignified, restrained manner; avoid repartee; limit comments
and rulings to those reasonably required for the orderly
progress of the trial; and refrain from unnecessarily
disparaging persons or issues." State v.
Hudgins, 301 Kan. 629, 638, 346 P.3d 1062 (2015).
argues that his counsel took no more time for voir dire than
the prosecution had taken. For support, Kahler compares the
number of transcript pages that contain voir dire questioning
by the prosecutor to the number taken by defense
counsel's questioning. This method of quantifying time is
inherently unreliable. Cf. Hudgins, 301 Kan. at 637
(trial judge requested defense counsel to "pick up the
pace" after defense counsel was silent for about 3
minutes). More to the point, however, there is nothing in the
district judge's comments that reflects negatively on
defense counsel's conduct. The statement concerned the
orderly progress of the trial, and nothing suggests that the
statement was delivered in anything less than a dignified and
restrained manner. The statement was a request, not an order,
and clearly recognized that defense counsel was entitled to
ask his questions.
again note the better practice, which would have the district
judge make such administrative requests out of the presence
of the venire panel. Nonetheless, merely requesting trial
counsel to move a little faster, if possible, does not amount
to judicial misconduct. Cf. Hudgins, 301 Kan. at
638-39 (remark, at worst, was a mild warning within the
proper exercise of a district court's authority to
control voir dire and avoid undue delay).
Comments on instructing the jury following opening
parties gave relatively straightforward opening statements.
The prosecutor gave a brief overview of the shootings and
then summarized testimony he expected to elicit from each of
the State's witnesses about the crime and the crime
scene. The defense focused on painting a picture of the
events that led up to the crime: Kahler's professional
success, the many happy years of the Kahlers' marriage
and family life, the breakdown of the marriage, and
Kahler's obsession with saving it.
were no objections during the State's opening; however,
the State objected three times during Kahler's opening.
After defense counsel had attributed statements to Karen, the
prosecutor asked to approach the bench. At the bench, the
prosecutor lodged an objection based on hearsay. The district
judge sustained the objection and instructed Kahler's
counsel to set out the expected evidence and not to testify.
The objection and discussion were had out of hearing of the
immediately after the bench conference, the prosecutor
objected a second time, saying only "same
objection" when counsel for Kahler again attributed
statements to Karen. This time the district judge responded
within hearing of the jury: "All right. [Defense
counsel], we talked. Unless you intend to call witnesses to
support what you're saying, they're not
the prosecutor requested to approach the bench again to lodge
an objection to defense counsel using the word
"crazy" to describe Kahler's behavior. The
discussion and the judge's admonition not to use the word
were outside the jury's hearing.
following Kahler's opening statement, the district judge
"All right. Ladies and gentlemen of the jury, I'm
going to read an instruction to you at this time. I
normally don't do this, but I am going to ask that you
listen carefully. This is one of the instructions that
will be given to you later but I wish to give it to you now
also. That statement is: Statements, arguments, and remarks
of counsel are intended to help you in understanding the
evidence and in applying the law, but they are not evidence.
If any statements are made that are not supported by
evidence, they should be disregarded." (Emphasis added.)
argues the district judge's comments prior to the actual
instruction showed bias-particularly the comment that the
judge did not normally give the instruction but wished to do
so this time. Kahler argues that it amounted to a negative
comment on defense counsel's credibility.
State focuses only on the instruction and ignores the
judge's comments preceding the instruction. It argues the
instruction itself was a fair and accurate statement of the
law. It also points to K.S.A. 2016 Supp. 22-3414(3), which
provides "the judge, in the judge's discretion,
after the opening statements, may instruct the jury on such
matters as in the judge's opinion will assist the jury in
considering the evidence as it is presented." But the
State fails to acknowledge that the district judge gave the
jury a set of instructions prior to opening statements, which
included an instruction on considering only testimony and
exhibits admitted into evidence and an instruction that it is
up to the jury to determine the weight and credit to be given
the testimony of each witness.
the context of the prosecution's objections during the
defense's opening statement, the judge's comment
undoubtedly brought special attention to the instruction.
Moreover, given the timing of the district court's
comment, the jury's attention would undoubtedly have been
directed to the defense's opening argument. The jury had
just heard the district judge admonish defense counsel by
saying, "Unless you intend to call witnesses to support
what you're saying, they're not allowed." When
the district judge commented immediately on the heels of the
opening statements, he underscored his suspicion that the
defense would not be able to introduce evidence that would
allow the jury to attribute certain statements to Karen. This
belief should not have been revealed to the jury.
court has previously warned district judges to "limit
comments and rulings to what is reasonably required for the
orderly progress of the trial, and refrain from unnecessary
disparagement of persons or issues." State v.
Miller, 274 Kan. 113, 128, 49 P.3d 458 (2002). Here, the
comment added nothing to the orderly progress of the
trial-the instruction could have been given without editorial
comment or explanation. The district judge erred in making
alone does not require reversal, however. "'The
question is whether [the defendant]'s substantial rights
to a fair trial were prejudiced by the court's
statements.'" State v. Cheever, 306 Kan.
760, 793-94, 402 P.3d 1126 (2017). Here, the district
judge's isolated comment did not show the type of
judicial bias that denies a fair trial. See Miller,
274 Kan. at 129 (finding district judge's numerous
statements accumulated to deny a fair trial). On occasion,
district judges reveal, usually unintentionally, a bias on an
issue. Consequently, district judges routinely instruct the
jury, as the judge did in this case, that "I have not
meant to indicate any opinion as to what your verdict should
be by any ruling that I have made or ...