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State v. Thurber

Supreme Court of Kansas

June 15, 2018

State of Kansas, Appellee,
Justin Eugene Thurber, Appellant.



         The Fifth Amendment to the United States Constitution guarantees the right against self-incrimination, including the right to have a lawyer present during custodial questioning and the right to remain silent. If a suspect knowingly and intelligently waives these rights, law enforcement officers are free to ask questions. But once the right to counsel is invoked, questioning can resume only after a lawyer is made available or the suspect reinitiates conversation.


         To reinitiate questioning with law enforcement, a suspect who invoked the right to counsel must have shown a willingness and desire for a generalized discussion about the investigation, rather than only making an inquiry arising out of the incidents of the custodial relationship or an unrelated matter.


         Appellate courts employ a two-step analysis when evaluating claims of reversible prosecutorial error. These two steps are simply described as error and prejudice. To determine prosecutorial error, an appellate court decides whether the act complained of falls outside the wide latitude afforded to prosecutors to conduct the State's case in a way that does not offend the defendant's constitutional right to a fair trial. If it finds error, the appellate court determines if that error prejudiced the defendant's right to a fair trial.


         In evaluating the prejudice step for reversible prosecutorial error, an appellate court applies the traditional constitutional harmlessness inquiry from Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Prosecutorial error during a trial is harmless if the State shows beyond a reasonable doubt the error did not affect the trial's outcome in light of the entire record, i.e., there is no reasonable possibility the error contributed to the verdict.


         Because a trial judge is in a better position than an appellate court to view the venire members' demeanor during voir dire, the judge's ruling on a challenge for cause is reviewed on appeal for abuse of discretion.


         A written verdict submitted by a jury generally controls over the verdict read orally by a bailiff.


         The failure to lodge a contemporaneous objection to the admission of evidence typically forecloses subsequent challenges on appeal. But in capital murder appeals, K.S.A. 21-4627(b), recodified as K.S.A. 2016 Supp. 21-6619(b), compels review of any issue raised in the defendant's brief, even if not preserved below.


         A venue challenge under the Sixth Amendment to the United States Constitution based on pretrial publicity can arise in two different contexts: presumed prejudice and actual prejudice. Presumed prejudice occurs when the pretrial publicity is so pervasive and prejudicial the court cannot expect to find an unbiased jury pool in the community.


         In evaluating a claim that presumed prejudice requires a venue change, a court reviews the seven factors set out in Skilling v. United States, 561 U.S. 358, 380-85, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010): (i) media interference with courtroom proceedings; (ii) the coverage's magnitude and tone; (iii) the size and characteristics of the community where the crime occurred; (iv) the time between the crime and the trial; (v) the jury's verdict; (vi) the crime's impact on the community; and (vii) the effect, if any, of a codefendant's publicized decision to plead guilty. Defendants face a high burden under the Skilling test-generally a defendant can obtain a venue change only upon showing publicity has displaced the judicial process entirely or that the courtroom proceedings more resemble a circus or lynch mob.


         An appellate court reviewing a trial court's decision on a motion to change venue because of presumed prejudice applies a mixed standard of review, examining the trial court's findings of fact for substantial competent evidence and the ultimate legal conclusion drawn from the facts-whether to presume prejudice-de novo.


         Cumulative trial errors, when considered collectively, may require reversal of a defendant's conviction when under the totality of the circumstances the errors substantially prejudiced the defendant and denied the defendant a fair trial.


         K.S.A. 2016 Supp. 21-6622 precludes a district court from imposing a death sentence on a capital defendant whom the court determines to be intellectually disabled. If the court concludes there is sufficient reason to believe the defendant is a person with an intellectual disability, it must conduct a hearing to determine whether that defendant is a person with an intellectual disability.


         Execution of an intellectually disabled individual is categorically prohibited by the Eighth Amendment to the United States Constitution.


         The 2016 Legislature amended K.S.A. 76-12b01(i) to allow criminal defendants to establish subaverage general intellectual functioning by means in addition to standardized intellectual testing.


         In a death penalty case, an appellate court will use an abuse of discretion standard when reviewing a district court's threshold reason-to-believe determination under K.S.A. 2016 Supp. 21-6622(a). On appeal from that determination, the burden is on the party alleging the district court abused its discretion.


         A new rule for conducting criminal prosecutions is to be applied to all cases pending on direct review or not yet final. A conviction generally is not considered final until (i) the judgment of conviction is rendered; (ii) the availability of an appeal is exhausted; and (iii) the time for any rehearing or final review has passed.


         In death penalty cases, the restriction in K.S.A. 2016 Supp. 21-6622(h) limiting the class of intellectually disabled persons qualifying for protection against execution to only those having significantly subaverage general intellectual functioning "to an extent which substantially impairs one's capacity to appreciate the criminality of one's conduct or to conform one's conduct to the requirements of law" violates the Eighth Amendment to the United States Constitution.


         In death penalty cases, K.S.A. 2016 Supp. 76-12b01(i), which is used in determining "intellectual disability, " should be understood for Eighth Amendment purposes in a manner compatible with federal caselaw. This means the statute's requirements are to be informed by-and cannot disregard-the clinical definition for intellectual disability currently used in the medical community, as recited in the caselaw.

          Appeal from Cowley District Court; James T. Pringle, judge.

          Reid T. Nelson, of Capital Appeals and Conflicts Office, argued the cause, and Debra J. Wilson, of the same office, was with him 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 briefs for appellee.

          BILES, J.

         In this capital murder case, a jury convicted and sentenced to death Justin Eugene Thurber for the January 2007 abduction and murder of J.S., a 19-year-old Cowley County Community College student. On direct appeal, Thurber claims numerous errors during his trial's guilt and penalty phases. See K.S.A. 21-4624 (requiring a jury to first decide a defendant's guilt before reconvening to determine whether to impose the death penalty). We affirm Thurber's capital murder and aggravated kidnapping convictions because we discern no reversible error during the trial's guilt phase.

         As to Thurber's death sentence, a threshold matter must be resolved before we can go further. Thurber claims evidence from his 2009 penalty-phase proceedings demonstrated he was intellectually disabled and the district court erred when it found there was insufficient reason to believe that was true. Executing a person with an intellectual disability is prohibited. See Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); see also K.S.A. 2016 Supp. 21-6622(f) (district court cannot impose death sentence on a capital defendant whom the court determines to be intellectually disabled). Thurber also challenges the constitutionality of our statutes defining intellectual disability as they existed at the time of his crimes and as they exist now.

         Our problem on appeal is identifying the law to apply to resolve these questions because that law changed after Thurber's trial. The United State Supreme Court twice expanded Eighth Amendment requirements for making intellectual disability determinations in death penalty cases. See Moore v. Texas, 581 U.S.___, 137 S.Ct. 1039, 1044, 1053, 197 L.Ed.2d 416 (2017) (states cannot restrict an individual's qualification as intellectually disabled by using outdated medical standards; these adjudications should be informed by the medical community's current consensus reflecting its improved understanding over time); Hall v. Florida, 572 U.S.___, 134 S.Ct. 1986, 2001, 188 L.Ed.2d 1007 (2014) (When defendant's IQ test score falls within the test's acknowledged and inherent margin of error, defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.).

         Adding to this conundrum, the 2016 Legislature amended 76-12b01(i), expanding the criteria for demonstrating intellectual disability by allowing evidentiary "means in addition to standardized intellectual testing." The Legislature also directed that this change "shall be construed and applied retroactively." (Emphasis added.) See L. 2016, ch. 108, § 1. These revisions appear to reflect legislative intent to comply with the United States Supreme Court's 2014 Hall decision by altering a key definition previously used by our Kansas courts for intellectual disability determinations. See K.S.A. 2016 Supp. 21-6622(h).

         Because new rules for conducting criminal prosecutions typically apply to cases pending on direct review, such as Thurber's, we have determined the best interests of justice require remanding this limited question on intellectual disability to the district court for further proceedings. We retain jurisdiction over the remaining penalty-phase issues pending notification from the district court and the parties about the outcome on remand.

         Factual and Procedural Background

         On Friday, January 5, 2007, following a late morning practice with her Cowley Community College Tigerette dance team, J.S. was reported missing. As police searched the Arkansas City area, suspicion quickly focused on Thurber.

         That evening, a police officer saw Thurber's car parked near his parents' house. Thurber's father invited the officer inside to speak with Thurber. When asked about his whereabouts, Thurber said he drove his car to Winfield to meet a friend earlier that day; once there he and his friend met two people his friend knew, but whom Thurber did not know. He said the four drove around rural areas in a car belonging to one of the friend's friends until the car got stuck on a dirt road near Cedar Vale. Thurber said he started walking alone toward Arkansas City. He eventually called his father, who picked him up. Thurber's father confirmed getting Thurber, who was wet and muddy, a little over a mile west from Cowley County State Fishing Lake. Thurber told the officer some friends drove his car back from Winfield. After getting the car, he said, he picked up his paycheck at Subway, where he worked.

         That same evening, officers spoke with Alexis Swartzell, who recently ended a three-year relationship with Thurber. She told officers Thurber often took her to the Kaw Wildlife Area, southeast of Arkansas City, and she pointed out places she and Thurber would visit.

         On Saturday, January 6, 2007, Detective Eric Mata arrested Thurber on a bond revocation and suspicion of criminal trespass because the investigation into J.S.'s disappearance showed Thurber had been on the college campus, where the detective believed Thurber was not supposed to be. Thurber told Mata he wanted to speak with his attorney.

         Also that evening, officers searched Thurber's parents' house. Officers collected the shoes Thurber wore when his father picked him up the day before. The shoes were wet and drying on a towel. Thurber's father told police he helped Thurber clean mud off the shoes.

         By Sunday, January 7, 2007, searchers trained in identifying human activity in rough country looked for J.S. near the Kaw Wildlife Area. They found matching impressions of Thurber's shoes. They also saw tracks nearby that appeared to be impressions left by flip-flop sandals. As evening approached, the search stopped for the day.

         On the way home, some searchers drove past Cowley County State Fishing Lake and decided to stop because they heard Thurber was wet when his father picked him up. They discovered a muddy tire track, muddy shoeprints near a public restroom, mail addressed to J.S.'s parents in a chemical toilet, dance shoes in another toilet, and a flip-flop sandal. Investigators later retrieved cutoff sweat shorts, a wallet containing J.S.'s driver's license and social security card, her black leotard, a Tigerette jacket with J.S.'s first name on the front, a vehicle floor mat, and a car seat cushion. The sandal matched the impressions found at the Kaw Wildlife Area. Searchers spent the next two days around Cowley County State Fishing Lake and the Kaw Wildlife Area.

         On Tuesday, January 9, 2007, divers located J.S.'s submerged car in the lake. Officers recovered another flip-flop sandal matching the earlier one. At the Kaw Wildlife Area, searchers found J.S.'s naked body in a wood pile.

         The State charged Thurber with two alternative counts of capital murder: one alleging J.S. was the victim of attempted rape and the second alleging she was the victim of aggravated criminal sodomy. The State also charged Thurber with one count of aggravated kidnapping and filed a notice of intent to seek the death penalty based on a single aggravating circumstance-the murder was committed in an especially heinous, atrocious, or cruel manner. See K.S.A. 21-4624(a); K.S.A. 21-4625(6).

         Trial: guilt-phase proceedings

         A little more than two years later, a jury convicted Thurber of capital murder based on combined theories of attempted rape and aggravated criminal sodomy. The jury also convicted him of aggravated kidnapping. It is necessary to detail the prosecution's case to explain how we resolve the issues.

         The State presented evidence of Thurber's and J.S.'s movements on the day J.S. disappeared. The State placed Thurber at Cowley County Community College that morning. Photographs and security camera footage showed Thurber's light blue Cadillac at various campus locations with the car entering and exiting campus parking lots multiple times between 10:18 a.m. and 11:48 a.m. Two Tigerette dance team members testified they saw Thurber in his vehicle near campus that morning. One noticed him as she arrived for practice at 9:50 a.m., and the other as she left practice at 11:50 a.m.

         Several witnesses testified they saw J.S.'s car that afternoon. Kari Morris, J.S.'s friend, noticed J.S. sitting in the passenger seat as their two vehicles passed each other in Arkansas City shortly after noon. Morris testified the person driving J.S.'s car appeared to be a large male. She called J.S.'s cell phone but did not get an answer. She said J.S.'s car appeared to be heading east out of town. Two other women testified they saw a car like J.S.'s vehicle while driving on a dirt road south of Arkansas City around 3 p.m. One testified Thurber was the driver and identified him in court.

         Cell phone tower data indicated Thurber's and J.S.'s cell phones were east of Arkansas City that afternoon. And some of the individuals who Thurber said he was with that day testified they were not with him.

         The State presented DNA evidence connecting Thurber to J.S.'s car and her body. Terry Melton, a director of a forensic DNA testing laboratory, testified she ran mitochondrial DNA tests on a hair found on the driver's seat of J.S.'s car. Melton said Thurber and his maternal relatives could not be excluded as donors, although 99.77 percent of the population could be excluded. Lance Antel, a KBI forensic biologist, analyzed several DNA samples collected from J.S.'s body. Antel could not exclude Thurber as a possible contributor for a partial mixture DNA profile collected from J.S.'s right breast. But because the profile only identified one locus, that profile would appear in one in 21 Caucasians. Gina Pineda, a private DNA testing company employee, testified she conducted Y-STR analysis on several samples. Results from the right breast swab yielded a "[v]ery weak" partial profile with two markers. Pineda testified Thurber could not be excluded as a contributor, but cautioned one in four males would have the same two markers. Barbara Leal, another private DNA testing company employee, testified she performed Y-STR testing on samples collected from J.S.'s right bicep and right rib cage. Thurber could not be excluded as a possible contributor. Leal testified she combined samples from J.S.'s right hand and fingernail clippings. Thurber could not be excluded as a contributor, although 99 percent of the population could be excluded.

         Steve Koch, a KBI forensic scientist, testified he took photographs and casts of "footwear impressions" at the Kaw Wildlife Area. They were consistent with those made by Thurber's shoes and J.S.'s flip-flop sandals.

         Several women testified about Thurber's behavior toward them. One, a dance team member, found a note signed by Thurber and a rose on her car windshield. A second team member described being followed one night by a light blue car and then three days later seeing Thurber in that vehicle on campus near where dance practice occurred. A third woman, who worked at Subway with Thurber, described how he frightened her by driving by the store late one night as she was closing. The Subway store manager testified Thurber left a card and a rose on her vehicle. She said he also approached her at 6:30 a.m. when she arrived to open the store and asked for a ride claiming his car had broken down. Swartzell testified about consensual sexual encounters, including Thurber occasionally choking her during sex by tightening and relaxing his grip around her neck, sodomizing her with a small plastic item, and once having sex with her in the Kaw Wildlife Area. Her testimony suggested similarities with medical testimony about J.S.'s injuries and cause of death.

         Thurber did not put on any evidence in his defense.

         Trial: penalty-phase proceedings

         For the penalty phase, the State relied on its guilt-phase evidence to prove the crime was committed in an especially heinous, atrocious, or cruel manner. The defense called psychologist Robert Barnett, who met with Thurber multiple times, conducted a psychological evaluation, and reviewed Thurber's medical records. Other defense witnesses testified Thurber was bullied as a child. Thurber's immediate family testified they would continue to have a relationship with him if he was sentenced to life in prison. The State's rebuttal witness testified he saw Thurber at the Arkansas City VFW the day after J.S.'s disappearance and described Thurber as "[h]appy, easy going."

         The jury returned a verdict for death, unanimously agreeing the State proved its aggravating circumstance beyond a reasonable doubt and that the aggravating circumstance was not outweighed by any mitigating circumstances found to exist.

         The day before sentencing, Thurber filed a motion to determine whether he was intellectually disabled under K.S.A. 21-4623. The district court considered that motion at the sentencing hearing. The defense relied on its penalty-phase mitigation evidence, which it claimed established Thurber's "low mental functioning." The State challenged the request as untimely. It also argued the record failed to demonstrate Thurber was intellectually disabled. The court overlooked any procedural deficiency and denied the motion on its merits, concluding there was insufficient reason to believe Thurber was intellectually disabled.

         Turning to sentencing, the district court found the evidence supported the jury's determination and sentenced Thurber to death. It also sentenced him to 176 months' imprisonment for the aggravated kidnapping to run consecutive to the death sentence.

         This is Thurber's direct appeal. Our review is automatic. K.S.A. 2016 Supp. 21-6619(a). For convenience and clarity, the issues are numbered as they were listed in Thurber's Supplemental Brief and Amended Supplemental Brief. Additional facts will be detailed as we discuss the claimed errors.

         Guilt Phase

         1. Thurber's Invocation of His Right to Counsel

         Thurber argues the district court erred in admitting a recorded police interview because it found he reinitiated contact with law enforcement after previously invoking his right to an attorney. Notably, Thurber does not claim the recorded interview adversely affected the jury's guilt determination. Instead, he argues the statement prejudiced him in the penalty phase by undercutting a mitigating circumstance that he felt remorse for the murder. We address the merits now and consider the prejudicial effect of any error on the guilt phase. If necessary, we will return to this prejudicial effect question in the penalty-phase context after remand.

         The State concedes Thurber was in custody after his arrest and made several requests for an attorney before giving the recorded statement. The State claims Thurber voluntarily reinitiated contact with law enforcement during an early morning drive with a sheriff's deputy and then validly waived his rights immediately prior to giving the statement. The district court erred by admitting this statement.

         Thurber did not reinitiate conversation about the case after invoking his right to counsel. Under our well-established caselaw, once the right to an attorney is invoked, an individual is not subject to further questioning until counsel is made available "unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); see also State v. Walker, 276 Kan. 939, 946, 80 P.3d 1132 (2003) ("Questioning can be resumed only after a lawyer has been made available or the suspect reinitiates conversation."). With respect to reinitiation, an individual who has invoked the right to counsel "must evince 'a willingness and a desire for a generalized discussion about the investigation, '" and the individual's statement must "'not merely [be] a necessary inquiry arising out of the incidents of the custodial relationship.'" (Emphasis added.) Walker, 276 Kan. at 947 (quoting Oregon v. Bradshaw, 462 U.S. 1039, 1045-46, 103 S.Ct. 2830, 77 L.Ed.2d 405 [1983]).

         In other words, a valid waiver of a previously asserted right "cannot be established by showing only that [the accused] responded to further police-initiated custodial interrogation even if he has been advised of his rights." (Emphasis added.) Edwards, 451 U.S. at 484.

         1.1 Additional Facts

         When Detective Mata arrested Thurber at about 9:45 p.m., Saturday, January 6, 2007, Mata did not read Thurber his Miranda rights. Nevertheless, Thurber told Mata he wanted to speak to his attorney. There was no questioning at this time.

         After arriving at the Arkansas City Police Department, Thurber told a law enforcement officer he wanted to speak with Mata, who shortly thereafter met him in a holding room. Thurber said he wanted to "get this over with." Thurber insisted on being transported to the county jail, but then shifted gears and told Mata he would talk if his attorney came to the police station. Mata asked Thurber for the attorney's phone number. Thurber said the number was at his house, but suggested the attorney was probably at a local bar and Mata could reach her there.

         Instead of trying to connect Thurber with his attorney, Mata mentioned Thurber's recent break up with Swartzell. Mata also talked about Thurber's bond revocation. Mata then asked Thurber where he was on January 5 between 11 a.m. and 11 p.m. Thurber again said he wanted his attorney present. Mata responded, "[I]t's probably not a good idea that she comes down here" if she was at a bar drinking. Thurber said he wanted his father with him before he would talk and also requested his mother be allowed in the room. Mata said Thurber would have to waive his rights to be silent and to an attorney if his parents were there. Thurber agreed.

         When his parents arrived, Thurber spoke with them privately. Afterward, Mata asked if Thurber was ready to give a statement. Thurber replied he was not talking and said again he would not answer questions without his attorney. Mata became agitated, told Thurber he was "not going to be playing these games, " and began photographing Thurber. Then Mata and Thurber discussed a previous criminal case. Thurber asked for a promise he would not be charged for stalking if he gave a statement about his whereabouts the previous day. Mata said he could not make promises. Up to this point, neither Mata nor any other law enforcement officer had read Thurber his Miranda rights.

         Around 11 p.m., KBI special agent David Falletti joined the questioning. Falletti gave Thurber a written Miranda rights waiver and began reciting it. But before the agent could finish, Thurber interrupted, listed off his rights, and said he knew them. Thurber completed and signed the waiver.

         Falletti said he understood Thurber had previously requested an attorney, but "recontacted us and asked for Detective Mata." Thurber agreed. Falletti confirmed, "[W]e're allowed to talk to you now because you came to us." Thurber agreed, noting he could stop answering questions any time. He then told Mata and Falletti about his whereabouts the day before.

         Thurber said he woke up at 11 a.m. and drove around for a short period before stopping at a gas station. He then went looking for the biological father of Swartzell's daughter. Around this time, he was pulled over for a traffic violation. At about noon, he parked near Subway and waited for Travis Alberding to bring him a computer and shoes. Travis arrived 20 minutes later, and the pair left in Travis' car for Winfield. They intended to meet an individual named Matt, but could not find him. They then drove to Dexter, but the car got stuck on a field access road. The two got into a fight, and Thurber decided to walk home alone. He walked for about six hours before calling his father, who picked him up. When he got home, Thurber went to Subway to pick up his paycheck.

         Mata, Falletti, and another officer drove Thurber out east of town so he could show them where he said he was. Thurber could not locate where he said the car had gotten stuck.

         After returning to the police station, Thurber volunteered to take a polygraph test. The interview ended around 3:30 a.m. on Sunday, January 7. Mata left the police station. At approximately 3:50 a.m., Sheriff's Deputy Joe Owen drove Thurber to the Cowley County jail. On the way, Thurber told Owen he wanted to talk again to Mata or Falletti, but he also wanted his relative, Chad Monroe, who was employed with the Cowley County Sheriff's office, included in that conversation.

         When Thurber's request was relayed to the Arkansas City Police Department, Lieutenant Jeff Moore called him at 4:40 a.m. at the jail. Thurber said he wanted police to investigate Travis, who Thurber claimed stole property from him. Moore decided not to disturb Mata about this. Instead, Moore told Mata later that Sunday morning about Thurber asking to speak with him. When Mata met with Thurber soon after, Mata asked him what he wanted to talk about. Mata testified Thurber explained he wanted to talk about Travis.

         At 11 a.m., Sunday, January 7, Mata and Falletti took Thurber back to the Arkansas City police station to meet KBI special agent Rick Atteberry, who provided Thurber another Miranda rights waiver form. Atteberry read the form to Thurber, and then Thurber read it to himself. The form set out Thurber's right to remain silent, right to an attorney, and right to have an attorney present during questioning. Thurber signed the form. Atteberry then recorded an interview during which Thurber described his whereabouts consistently with the version he previously told Mata and Falletti.

         The interview and polygraph lasted about three hours. Afterwards, Thurber requested his attorney. He said he did not want to talk to Atteberry anymore but did want to speak with Mata. Officers got Thurber's attorney on the phone, and Thurber spoke with her. After that, the only discussion between Thurber and Mata that day was small talk unrelated to the investigation.

         Before trial, the State moved for an admissibility determination for the recorded Atteberry statement. The State argued Thurber reinitiated contact with law enforcement through Deputy Owen after his earlier invocation of rights and then waived those rights just before giving the Atteberry statement. The district court ruled the statement admissible.

         The court determined Thurber reinitiated contact during the early morning car ride with Owen. The court noted nearly eight hours elapsed before Thurber gave Atteberry his statement. The court observed Atteberry was not involved in earlier questioning and that Thurber did not request an attorney again between the time he talked with Owen and giving the Atteberry statement. The court further noted Thurber was familiar with the criminal justice system, was previously advised of his rights, interrupted Falletti when those rights were explained to express his understanding of them, was not pressured or coerced into giving the Atteberry statement, and was not under the influence of alcohol or drugs. The district court held the statement was "knowingly and voluntarily made."

         At trial, the State played the Atteberry statement over defense objection. The State also called Travis, who testified he was not with Thurber the day J.S. disappeared.

         1.2 Standard of Review

         An appellate court reviews a district court's decision to admit a defendant's statement into evidence using a bifurcated standard. State v. Salary, 301 Kan. 586, 602, 343 P.3d 1165 (2015).

"'Without reweighing the evidence, the district court's findings are reviewed to determine whether they are supported by substantial competent evidence. The ultimate legal conclusion regarding the suppression of evidence is then reviewed using a de novo standard.' State v. Bridges, 297 Kan. 989, 1001-02, 306 P.3d 244 (2013). When the facts material to a trial court's decision on a motion to admit or suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court exercises unlimited review. 297 Kan. at 1002." Salary, 301 Kan. at 602-03.

         In Thurber's case the material facts are undisputed, so we employ de novo review to decide whether the Atteberry statement was admissible. The State bears the burden of establishing by a preponderance of the evidence that a Miranda waiver was knowing, intelligent, and voluntary, and that any post-waiver statement was made voluntarily. See State v. Bridges, 297 Kan. 989, 1004, 306 P.3d 244 (2013) (citing Colorado v. Connelly, 479 U.S. 157, 168-69, 107 S.Ct. 515, 93 L.Ed.2d 473 [1986]). The same is true for the State's claim that Thurber reinitiated contact. See Walker, 276 Kan. at 947 ("The prosecution has the burden to show that subsequent events indicated a waiver of a previously asserted right and that the waiver was knowing, voluntary, and intelligent under the totality of the circumstances.").

         1.3 Analysis

         In Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court adopted procedural safeguards to protect individuals from the "inherent compulsions of the interrogation process." Before an individual in custody is subjected to questioning, that individual must be "adequately and effectively apprised of his rights and the exercise of those rights must be fully honored." 384 U.S. at 467. This requires law enforcement to inform the individual before questioning about the right to remain silent and the right to an attorney. The individual must also be warned that "anything said can and will be used against the individual in court." 384 U.S. at 469. Any waiver of these rights must be knowingly and intelligently made. 384 U.S. at 475.

         The State does not dispute that Thurber clearly invoked his right to counsel when first arrested and other times while in custody. The problem centers on how our caselaw treats what happened next-when the State claims Thurber reinitiated contact with law enforcement and then later waived his previously invoked right to counsel.

         To determine whether an individual waived an asserted right to counsel, a court must decide if the accused reinitiated discussions with police and knowingly and intelligently waived the previously asserted right. Walker, 276 Kan. at 946-47 (citing Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 83 L.Ed.2d 488 [1984]). Absent this, statements obtained by law enforcement from an individual who remained in custody following invocation of the right to counsel must be suppressed. Edwards, 451 U.S. at 486-87.

         No one disputes Thurber unambiguously invoked his right to counsel; indeed, he invoked it on several occasions. Therefore, the Atteberry statement's admissibility turns on whether: (1) Thurber reinitiated further discussions while riding with Deputy Owen; and, (2) if so, whether he knowingly and intelligently waived his previously asserted right to counsel. See Bradshaw, 462 U.S. at 1044-46 (reinitiation of conversation by accused does not itself amount to waiver of previously invoked right to counsel). These are separate and distinct inquiries. 462 U.S. at 1045. Our review of the district court's admissibility determination begins and ends with the first inquiry.

         In its reinitiation analysis, the district court did not explicitly consider-as it should have-whether Thurber's statements to Owen expressed a desire for a discussion about the investigation as our caselaw requires, as opposed to some incidental topic. See Walker, 276 Kan. at 947. The facts are undisputed. During the drive back to jail, Thurber told Owen he wanted to talk to Mata or Falletti and wanted his relative Monroe to participate in that conversation. This alone did not exhibit a "willingness and a desire for a generalized discussion about the investigation" as required by Bradshaw, 462 U.S. at 1045-46, because the subject matter at this point was unknown. Thurber indicated only that he wanted to conditionally speak with either detective, but nothing was known about what he wanted to talk about. We must look more deeply into the circumstances.

         Once advised Thurber wanted to speak again with law enforcement, Lieutenant Moore properly asked Thurber what he wanted to talk about. Cf. State v. Walker, 304 Kan. 441, 456, 372 P.3d 1147 (2016) (interviewing officer may ask clarifying questions regarding ambiguous invocations). Moore testified Thurber "wanted to tell me about someone that ha[d] stolen property from him." With this clarification, Thurber's request is now expressly understood to be unrelated to J.S.'s disappearance. And we note Moore appreciated this at the time because he thought the subject matter was so inconsequential the detectives did not need to be disturbed about it. Just as telling, when Mata returned to take Thurber to Atteberry for the recorded interview that Sunday morning, Mata confirmed Thurber's earlier request to speak with him was something about Travis, but he could not recall exactly what.

         Under Edwards and Bradshaw, law enforcement was not free to reopen the dialogue with Thurber about the criminal investigation or take the next step to attempt a waiver of previously invoked rights-even if Thurber did waive those rights at Atteberry's prompting. See Bradshaw, 462 U.S. at 1045. As this court has previously explained, "The rules regarding custodial interrogations and an accused's constitutional rights are well established." Walker, 276 Kan. at 944.

         Once the right to counsel is invoked, courts impose a "relatively rigid requirement" that questioning must stop. Fare v. Michael C., 442 U.S. 707, 718, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979). Questioning can be resumed only after a lawyer is made available or the individual who previously invoked the right reinitiates the conversation about the investigation's subject matter. Edwards, 451 U.S. at 482, 484-85. This so-called "Edwards rule" is "designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights." Michigan v. Harvey, 494 U.S. 344, 350, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990). The requirement that the individual's expression of reinitiation show a willingness and desire for more discussion about the investigation- rather than just making an unrelated inquiry about something else-operates as part of the Edwards safety net for Fifth Amendment rights. These rules must be followed even when a suspect's on-again, off-again banter sorely tests investigators' patience as it probably did in this instance.

         The district court erred when it admitted Thurber's recorded statement to Atteberry. The court's conclusion that Thurber "[re]initiated the communication with [Owen]" failed to consider whether that contact showed a desire on Thurber's part to reengage in dialogue with law enforcement about the investigation. And, as discussed, the facts demonstrate Thurber's request reflected his desire to talk about something else. Our inquiry must now turn to whether this error requires reversing Thurber's convictions.

         As noted earlier, Thurber does not contend this error affected the jury's guilty verdict. Nevertheless, we address prejudice in the guilt phase for this improperly admitted evidence under our authority to review unassigned errors. K.S.A. 2016 Supp. 21-6619(b). That said, we conclude the error was harmless standing alone with respect to the jury's guilt determination.

         The State offered the Atteberry statement in the guilt phase essentially to show Thurber lied concerning his whereabouts the day J.S. disappeared. It did this by calling Travis, who Thurber said he was with that day. Travis denied being with Thurber. But Thurber's lack of candor was established when the State discredited him in the same manner on a slightly different alibi Thurber provided the officer who interviewed him at his parents' home early in the investigation.

         To the extent the Atteberry statement adversely affected Thurber's credibility, it was cumulative to other evidence properly admitted that did the same thing. We hold the error was harmless in the guilt phase.

         2. Prosecutorial Error in the Guilt Phase

         Thurber contends various comments by the prosecutor during voir dire, opening statement, and closing argument constitute reversible error. He argues the prosecutor: (1) provided the jury with an improper "imaginary script" during opening statement and closing argument; (2) improperly told the jury the prosecutor was personally responsible for the case and that the Attorney General had determined death was the appropriate sentence; and (3) incorrectly stated the law when the prosecutor claimed premeditation "[c]an be instantaneous." We agree some prosecutorial error occurred.

         2.1 Additional Facts

         The district court divided the potential jury pool into groups for separate questioning. The prosecutor told several panels, "Now, [it's] my burden . . . to prove beyond a reasonable doubt that Mr. Thurber is guilty. Will you hold me to that burden?" (Emphasis added.) Later, in response to a panel member's statement that he would vote not guilty if the defense could convince him Thurber was innocent, the prosecutor said:

"I want to bring up something to all of you. Those two men right there, the defense attorneys, and Mr. Thurber, they don't have to do a thing. You are looking right here at the man that has to do something in this case. Okay. They have no burden at all. I have the burden. Okay. I have the burden. I'm not saying they aren't going to do something. But they don't have to do a thing. Principle of law is that you can't shift the burden to the defense. I have the burden. You have to say-when you go back to the jury room, you have to say did [I] prove the case." (Emphases added.)

         During another panel, the prosecutor explained the presumption of innocence and burden of proof:

"Now, with that key principle, there is called the presumption of innocence. Okay. That means that a person is presumed innocent until I, the prosecutor, present evidence at trial to show that he's guilty beyond a reasonable doubt.
. . . .
"So that is the first key thing. He doesn't-Mr. Thurber and his defense team, they can sit there just like right now, not say a thing. They don't have to, because it's my burden. It's my burden to prove beyond a reasonable doubt that he's guilty. They don't have to do a thing. It's my burden to prove beyond a reasonable doubt. That's the presumption of innocence. Okay. He's presumed innocent. And is an [sic] until, in the eyes of the law, until found guilty." (Emphases added.)

         During opening statement, the prosecutor said:

"First thing, defendant could not be excluded as a contributor of that DNA on [J.S.]'s right hand. Under the testing they do, they have 16 markers. The DNA on [J.S.]'s right hand, 16 markers matched the defendant's DNA.
"[J.S.]'s body was taken from the Kaw Wildlife area to Wichita for autopsy. Doctor Oeberst did an autopsy. [J.S.] was bruised from her head, on her head, on her arms, on her torso, lower back, buttocks, legs; bruised from head to toe.
"She had abrasions on her back that were consistent with being drug 30 feet. From the place where she was [dis]robed to the place where her body lay.
"She was struck so hard in the face that it snapped her face back (indicating) and lacerated an artery in her neck. And she was strangled. She was strangled. Repeatedly strangled. Repeatedly strangled of a tightening and relaxing, tightening, relaxing. She was struggling to get away. A man with big hands had his grip on her neck. Not only hands, but ligature consistent with [J.S.]'s leotard strap. And at the time that she would struggle and can get a little bit, she is gasping for air, gasping. And every time she did that, more oxygen went to her brain, allowed her to live longer. The strangulation, five to 12 minutes. Five to 12 minutes.
"Part of that examination also included the sexual assault. I'm going to take you back to the Kaw Wildlife area. [J.S.]'s body. She's been strangled by ligature, manually. Her artery snapped in the back of her neck. She's dying. Her heart is still beating. She's looking up at the gray sky. She's in an area that she does not know. Her heart is still beating. Defendant spreads her legs. Gets between her legs and gets a large stick. Gets a large stick. He grabs it and he jams it up her anal canal tearing, bruising, hemorrhage. Her heart is still beating, still pumping blood. He jams that stick up into her approximately two inches of length. But he's not done there.
"He next takes wood debris. He takes wood debris and stuffs it in her vaginal cavity. But he's not done yet. He's not done yet.
"In her last breath, before he gathers her clothes, before he heads out of that area, before he gets back in her car and takes it and dumps it in the lake, before he does that, he moves from . . . between her legs up toward her face. And he gets leaves and grinds them up. He grinds them (indicating) in his hand. And he takes those leaves and he smashes them in each one of her ears. Smashing (indicating) them. Packs it in there. But he's not done yet. He's not done yet.
"[J.S.]'s suffering is ending. Her suffering is ending. But the suffering of others is just beginning. What he does, he grabs more leaves, wood debris, and he opened [J.S.]'s mouth and he crams it full of wood debris and leaves. That's his last act on the body of [J.S.]" (Emphasis added.)

         During closing argument, the prosecutor said the following:

"Mental anguish, uncertainty to her fate, terror. She's looking at that man right over there (indicating). A man that she did not know. And she was not certain of her fate.
"By 4:30 that afternoon, about this time, if you would take it from noon to 4:30, she'd been in that car. And now the car was arriving at the Kaw Wildlife area. That whole time; fate uncertain, the terror. 40 minutes into it, she gets a call from her mom. She can't take it. But she does try to call out. She pushes a number. Number is nobody home. That's the last call from that cell phone. It was powered down. It was powered down.
"4:30 they arrive at the Kaw wildlife area. Defendant gets her out of that vehicle and walks her down. Walks her down a trail of death.
"She is to his left. He is to the right. He's holding onto her right hand with his left. And he's taking her down the trail of death.
"When she gets to a point where she can't take it anymore, she either collapses or resists and he picks her up and he carries her. Carries her to the place where he drops her down. Beats her. Grabs her leotard[] and strangles her."

         Defense counsel objected, claiming the argument mischaracterized the evidence and, with respect to the leotard, was unsupported by the evidence. The prosecutor argued he was drawing reasonable inferences. The district court told the jury to disregard any argument not fairly supported by the evidence.

         Later, the prosecutor said:

"Why was the passenger side seat pulled out. What did Alexis say? Alexis said he was stimulated by resistance. You got to ask yourself why will he cut that passenger seat out? Because he got too stimulated. He got stimulated and it caused him to ejaculate."

         Again, defense counsel objected and argued the prosecutor's closing remark mischaracterized the evidence and that there was no evidence to support the statement. As before, the prosecutor argued it was a reasonable inference. The district court reminded the jury to disregard statements not supported by the evidence.

         The prosecutor returned to the burden of proof and his responsibility to meet that burden:

"I have the burden. That's what I told [you] from the very start. I want you to hold me to that burden. It's not his responsibility to prove he's not guilty. It's my responsibility. You're looking at the man right here (indicating) who was tapped on the shoulder about a year [a]go by the attorney general to take this case. Get a conviction and take it to sentencing. It's my job. Hold me responsible." (Emphases added.)

         Defense counsel objected and asserted, "It's the State's responsibility. It's not a personal thing to [the prosecutor]." The prosecutor replied, "I agree. It's [the] State's responsibility. I represent the State in this case." The district court stated, "With that explanation, continue."

         With respect to premeditation, the transcript quotes the prosecutor as follows:

"What premeditation means is before the act of killing, before you kill you have had to have thought it over in your mind. And think it over in your mind. Thought out the matter beforehand doesn't mean it had to happen two hours ago, one hour ago. All it is, is before the act, I'm going to kill. I've thought over the matter beforehand. Can be instantaneous. It's just you got to have that thought in your mind before you kill. That's all that's required." (Emphasis added.)

         2.2 Standard of Review

         This court recently "jettisoned the term 'prosecutorial misconduct' in favor of the term 'prosecutorial error.'" State v. Kleypas, 305 Kan. 224, 315, 382 P.3d 373 (2016) (Kleypas III) (quoting State v. Sherman, 305 Kan. 88, Syl. ¶ 5, 378 P.3d 1060 [2016]), cert. denied 137 S.Ct. 1381 (2017). We also refined the analytical framework for considering prosecutorial error claims:

"In analyzing claims of prosecutorial error, appellate courts will employ a two-step process, first determining whether error occurred and, if it did, then determining whether prejudice resulted. 305 Kan. 88, Syl. ¶ 6. 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. 88, Syl. ¶ 7. At the second stage of the analysis, rather than step through the three Tosh factors, the prejudice analysis will focus on whether the error prejudiced the defendant's due process rights to a fair trial; if a due process violation occurs, prejudice will be assessed by applying the Chapman constitutional error standard. 305 Kan. 88, Syl. ¶ 8. Under that standard, '[p]rosecutorial error is harmless if the State proves 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.' 305 Kan. 88, Syl. ¶ 8." Kleypas III, 305 Kan. at 315-16.

         Because this appeal is not yet final, Sherman applies. The parties had the opportunity to discuss the Sherman framework at oral argument. See State v. Mitchell, 297 Kan. 118, Syl. ¶ 3, 298 P.3d 349 (2013) (change in law applies to cases pending on direct review and not yet final on date of appellate court decision).

         2.3 Discussion

         Thurber argues three categories of prosecutorial error: (1) providing the jury with an improper "imaginary script" during opening statement and closing argument; (2) improperly telling the jury the prosecutor was personally responsible and the Attorney General had determined death was the appropriate sentence; and (3) incorrectly stating the law when he claimed premeditation "[c]an be instantaneous." We discuss each in turn, although within the imaginary script analysis we address several alleged factual misstatements. And because we determine there were instances of prosecutorial error, we will need to consider if they require reversal individually or cumulatively.

         2.3.1 Imaginary Script

         With respect to closing arguments, this court recently explained:

"Prosecutors enjoy wide latitude in crafting closing arguments. See State v. Scott, 271 Kan. 103, 114, 21 P.3d 516 (citing State v. Miller, 268 Kan. 517, Syl. ¶ 4, 997 P.2d 90');">997 P.2d 90 [2000]), cert. denied 534 U.S. 1047 (2001). This latitude allows a prosecutor to argue reasonable inferences that may be drawn from the admitted evidence, but it does not extend so far as to permit arguing facts that are not in evidence. State v. Tahah, 293 Kan. 267, 277, 262 P.3d 1045 (2011). Likewise, '[p]rosecutors are not allowed to make statements that inflame the passions or prejudices of the jury or distract the jury from its duty to make decisions based on the evidence and the controlling law.' State v. Baker, 281 Kan. 997, 1016, 135 P.3d 1098 (2006). In short, a prosecutor's arguments must remain consistent with the evidence." State v. Pribble, 304 Kan. 824, 832, 375 P.3d 966 (2016).

         Prosecutors step outside the wide latitude when employing an "imaginary script" to convey a victim's last moments because such a comment is unsupported by the evidence. State v. Robinson, 303 Kan. 11, 261, 363 P.3d 875 (2015), cert. denied 137 S.Ct. 164 (2016). An evidentiary misstatement within an "imaginary script" may be amplified if the prosecutor uses this improper rhetorical device to arouse the jury's prejudice and passion. State v. Kleypas, 272 Kan. 894, Syl. ¶ 83, 40 P.3d 139 (2001) (Kleypas I) ("It is improper for a prosecutor to create an 'imaginary script' in order to create and arouse the prejudice and passion of the sentencing jury."). Thurber argues the prosecutor used an imaginary script during opening statement and closing argument.

         We first address Thurber's underlying assertion that the "purpose and limits of opening statements are to outline what evidence the prosecution expects to put on, not to argue its case." Based on that notion, Thurber contends the prosecutor's opening statement "was a dramatic narrative containing unsupportable references to the victim's thoughts and state of mind, and an unprovable theory of the sequence of events."

         But this court has "refrained from putting too fine a point on the distinction between stating the facts and making forbidden argument" during opening statement. State v. Nguyen, 285 Kan. 418, 422, 172 P.3d 1165 (2007). And we have continued to indicate reasonable inferences can be drawn during opening statement. See, e.g., State v. Tahah, 302 Kan. 783, 788-89, 358 P.3d 819 (2015) (prosecutor's comment during opening statement that defendant was "'going hunting'" for the victim was reasonable inference based on evidence eventually admitted at trial), cert. denied 136 S.Ct. 1218 (2016); Kleypas I, 272 Kan. at 957.

         Accordingly, our rubric for reviewing Thurber's prosecutorial error claims is the same whether the asserted claim arises in opening statement or closing argument. We distinguish them only for clarity.
 Opening Statement

         An "imaginary script" claim operates as a subcategory of the general prohibition against prosecutors arguing facts not in evidence. In many respects, Thurber's complaints are better framed in that light. For example, he argues there was no evidence of a tightening and relaxing grip associated with J.S.'s strangulation or that she gasped for air. He further asserts there was no evidence the strangulation lasted five to 12 minutes.

         The State contends each statement was a reasonable inference from the evidence eventually admitted at trial. It notes the coroner testified J.S. was strangled and that bruising on her neck displayed "several discreet or outlying areas that could represent multiple applications of pressure." The coroner stated this bruising was consistent with repositioning the hands. The coroner explained a strangulation victim would struggle; and, if pressure was released, a victim could possibly gasp for air. The coroner also testified the time to kill by strangulation "varies, " but estimated it would take "three to five minutes." And if pressure was released, the coroner testified, it would prolong that time. We agree with the State there was sufficient evidence to describe the tightening and relaxing of a grip with the additional inference the victim would gasp for air.

         But the prosecutor misstated the evidence by asserting the strangulation could have lasted 12 minutes. The coroner said only that the time to kill someone could be extended by successively releasing pressure. There is nothing to support a 12-minute outside length of time.

         Thurber also argues there was no evidence J.S. was looking up at a gray sky or did not know the area. The State argues the prosecutor's reference to looking up was reasonable because photographic evidence showed J.S.'s body lying on her back with her eyes open. But the State does not point to any evidence supporting an inference that J.S. was unfamiliar with the area, so that claim was error.

         With respect to these two statements, Thurber contends the prosecutorial account was expressed as a first-person narration, "as if the prosecutor is at the scene standing in [J.S.'s] shoes." But Thurber is wrong. The statement was clearly third-person narration, and the prosecutor did not place himself in the victim's position.

         Thurber next argues the prosecutor misstated the evidence eventually admitted when describing the wood and debris inserted into J.S.'s orifices. Thurber argues the sexual assault nurse examiner who performed the sexual assault examination at the autopsy did not conclude whether these acts occurred prior to death. The State argues these statements were reasonable inferences from the evidence admitted. We agree with the State.

         When asked in series about the wood and debris, the nurse testified J.S. sustained injuries before her death on her body where the wood and debris were found. The nurse further testified wood removed from J.S.'s anus "could be one of the contributing causes" of those injuries. Admittedly, some questions and answers were not completely clear, but overall the testimony supported the anticipatory description in opening about what the evidence would show. We hold the prosecutor was within the latitude.

         Finally, Thurber argues the prosecutor never asked the coroner how long J.S. would have remained conscious after a blow to her head and strangulation. Thurber argues "[t]he silence in the record on this point was not a license for the prosecutor to state as proven fact-through dramatic narrative-that [J.S.] consciously suffered throughout the entire time." The State argues Thurber mischaracterizes what was said about J.S. remaining conscious throughout her attack. The State notes the prosecutor merely said J.S. was alive at the time and reference to J.S.'s suffering was "clearly a logical inference that could be drawn from the evidence" given her "extensive, brutal injuries."

         The statements about J.S.'s suffering were within the latitude afforded during opening. Regardless of whether J.S. was conscious or unconscious for part of the attack, ample evidence that J.S. sustained injuries throughout fairly supported the statement that she "suffered" as that word is commonly understood. See, e.g., State v. Alger, 282 Kan. 297, 304, 306, 145 P.3d 12 (2006) (prosecutor stated during opening statement that two-year-old victim's "'last memory will forever be that of the Defendant violently shaking the life out of her'"; prosecutor "danced on the line between mere recitation of expected evidence and forbidden argument" but did not step over it); Tahah, 302 Kan. at 788-89 (prosecutor's opening statement that defendant was "'going hunting'" for victim was reasonable inference when evidence showed defendant sat in wait with rifle and shot victim through window in victim's house).
 Closing Argument

         Thurber generally contends the prosecutor used an imaginary script during closing argument to describe J.S.'s thoughts just before her murder. He argues there was no evidence he was holding J.S.'s hand; she collapsed or resisted; he forced her out of the car; or she was strangled with her own leotard. He further argues this "made-up narrative" of J.S.'s thoughts and last moments suggested conscious suffering when there was no evidence indicating it. Thurber specifically challenges the prosecutor's statement: "That whole time; fate uncertain, the terror." He contends this conveyed J.S.'s thoughts.

         In Kleypas I, this court distinguished between an impermissible imaginary script and a permissible penalty-phase closing argument based on evidence and inferences about a victim's mental anguish:

"Prosecutors are allowed to introduce relevant evidence to show the victim's mental anguish and further to make arguments and inferences from the evidence that the victim suffered such mental anguish, where relevant. However, prosecutors cross the line when they make up an imaginary script that purports to tell the jury what the victim was feeling, where there is no evidence to support such a script. At that point, the imaginary script becomes evidence that was not admitted during trial." Kleypas I, 272 Kan. at 1114.

         The prosecutorial comment that J.S. was uncertain about her fate and terrified the "whole time" was surely a reasonable inference from the evidence. See State v. Foster, 290 Kan. 696, 723-24, 233 P.3d 265 (2010) (prosecutor's description about the "'extreme brutality'" of acts and victim's "'complete terrorization'" within latitude). J.S. was abducted and held captive in her own car while Thurber, a large man, drove it around for hours in the countryside. She was eventually taken by him to a remote area where she was attacked, beaten, and murdered. The prosecutor's statement did not speculate about her particular thoughts during this time. We hold the prosecutor did not use an imaginary script as Thurber contends.

         Thurber next complains no evidence supported the remark that Thurber and J.S. walked hand-in-hand down the path at the Kaw Wildlife Area. But as the State correctly points out, it called a KBI forensic scientist who testified impressions along the path were consistent with footwear worn by Thurber and J.S. In addition, photographic evidence showed these impressions were side-by-side. Based on this, it was reasonable to infer Thurber and J.S. walked side-by-side down the path. The State also correctly notes Thurber could not be eliminated as a possible contributor to DNA collected from J.S.'s right hand, so it was a reasonable inference they walked hand-in-hand because J.S.'s footprints were left of Thurber's.

         Similarly, the prosecutor's argument that J.S. collapsed or resisted so that Thurber picked her up and carried her was supported with evidence. Photographs showed J.S.'s footprints stopped halfway down the path and her body was found under a woodpile in a clearing farther down. It was reasonable to argue Thurber, who was much larger than J.S., picked her up and carried her to the clearing.

         Thurber also complains the prosecutor claimed he "forced" J.S. out of the car, but that is incorrect. The prosecutor said, "Defendant gets her out of that vehicle and walks her down [the trail]." And that is a reasonable inference considering that Thurber abducted her, drove her around all afternoon, and then she was found murdered outside the vehicle down the trail.

         But the statement Thurber strangled J.S. with her leotard crossed the line. To claim this, the State makes an inferential leap too great to be logical or reasonable. The only testimony linking the leotard to the crime is the coroner's bare testimony that "strangulation" was a cause of death. Nothing was said about the leotard. And since the evidence and argument focused on Thurber tightening and relaxing his grip on J.S.'s neck-not the use of a garrote-the prosecutor's assertion about the leotard was unsupported and error. See State v. King, 288 Kan. 333, 351, 204 P.3d 585 (2009) ("When a prosecutor argues facts that are not in evidence, this court has consistently found that 'the first prong of the prosecutorial [error] test is met.'").

         Finally, we consider a potential error from argued facts not supported by the evidence. We do so under our authority to notice unassigned errors. See K.S.A. 2016 Supp. 21-6619(b).

         Thurber objected at trial to the prosecutor's theory about Thurber ejaculating on the passenger seat in J.S.'s car as unsupported by the evidence. In response, the prosecutor claimed it was a reasonable inference. Presumably, the prosecutor was relying on Swartzell's testimony that Thurber would become aroused if she resisted his sexual advances and linking that to the passenger seat being removed. But it takes wild speculation to connect these two evidentiary points to form a conclusion that Thurber ejaculated on the car seat. This statement was error.

         2.3.2 Assuming Personal Responsibility

         In Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), the United States Supreme Court held "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Often, claims asserting this rule's violation involve prosecutors stating in penalty-phase proceedings that a jury's death sentence will be subject to review or correction by an appellate court if there is error. This court recently recognized, "The crux of a Caldwell violation is giving the jury misleading information which improperly minimizes its role in the death penalty process." State v. Cheever, 306 Kan. 760, 792, 402 P.3d 1126 (2017) ("'[W]e . . . read Caldwell as "relevant only to certain types of comment-those that mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision."'").

         Thurber cites Caldwell and argues the statements that the prosecutor was personally responsible for proving Thurber's guilt beyond a reasonable doubt diminished the jury's sense of its responsibility. Thurber is wrong. We need not address the premise underlying this claim-that Caldwell extends to statements regarding the responsibility for determining guilt of a capital offense, as opposed to sentencing. The prosecutor asked the jury to hold him to his burden to prove the charges beyond a reasonable doubt. This does not suggest anyone other than the jury was responsible for making either the guilt or sentencing determination. These remarks were within the latitude afforded to prosecutors.

         Thurber next argues the prosecutor improperly undermined the jury's responsibility by indicating the Attorney General had determined death was the appropriate sentence. This argument has two flaws. First, the prosecutor's comment did not do that. Second, even if the statement was so construed, the error would not be a Caldwell violation because it does not minimize the jury's responsibility for its decision. But the prosecutor's declaration that he was "tapped on the shoulder about a year [a]go" by the Attorney General was a comment outside the evidence and informed the jury about the prosecutor's personal pretrial involvement. See In re Care & Treatment of Foster, 280 Kan. 845, ...

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