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State v. Kahler

Supreme Court of Kansas

February 9, 2018

State of Kansas, Appellee,
v.
James K. Kahler, Appellant.

         SYLLABUS

         1. 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 trial.

         2. It 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.

         3. 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. Further, K.S.A. 2016 Supp. 21-6619(b) provides the authority for this court to notice unassigned errors in death penalty appeals.

         4. The 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.

         5. A 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.

         6. A 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.

         7. It 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.

         8. 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.

         9. A 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.

         10. 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.

         11. The party asserting judicial misconduct has the burden to show that any misconduct found to exist actually prejudiced that party's substantial rights.

         12. 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).

         13. 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.

         14. It 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 sponte.

         15. 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.

         16. 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.

         17. The 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 of offenders.

         18. In 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.

         19. 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.

         20. It 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.

         21. The 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.

         22. The 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 doubt.

         23. 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.

         Appeal from Osage District Court; Phillip M. Fromme, judge.

          Meryl 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 for appellee.

          PER CURIAM.

         A jury 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.

         Kahler 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 follows:

• 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 harmless.
• 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 murder.
• 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 trial.
• 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 or duplicative.
• 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.

         Consequently, we affirm Kahler's capital murder conviction and his sentence of death.

         Factual and Procedural Background

         A 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.

         That 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 relationship.

         Kahler 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 residence.

         The 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.

         Later 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.

         Between 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.

         About 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.

         When 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.

         Kahler 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 Wight's house.

         At 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 premeditation.

         During 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.

         The jury convicted Kahler of capital murder. After hearing additional evidence in the penalty phase, the same jury recommended the death sentence.

         As 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.

         I. Prosecutorial Error

         In his 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.

         Standard of Review/Error Analysis

         At oral 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 fair trial.

         Sherman 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).

         Analysis

         Kahler 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.

         At oral 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 the jury.

         We 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.

         II. Judicial Misconduct

         Kahler 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.

         At 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

         Our 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.

         Analysis

         The 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").

         An erroneous ruling by a judge, standing alone, will not establish judicial misconduct. Canon 2, Rule 2.2, Comment [3] (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 [1] (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).

         With 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.

         A. Warning a voir dire panel against outbursts of opinion

         Kahler 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 opinions."

         Kahler 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.

         A 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).

         We 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.

         In sum, we find no misconduct in the district judge's comments to the third panel.

         B. Asking defense counsel to move along

         Kahler 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.

         The 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).

         Kahler 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.

         We once 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).

         C. Comments on instructing the jury following opening statements

         Both 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.

         There 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 jury.

         Almost 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 allowed."

         Later, 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.

         Immediately following Kahler's opening statement, the district judge said:

"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.)

         Kahler 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.

         The 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.

         Given 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.

         This 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 the comment.

         Error 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 ...


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