BY THE COURT
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.
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
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.
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.
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.
written verdict submitted by a jury generally controls over
the verdict read orally by a bailiff.
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
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.
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.
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.
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
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.
of an intellectually disabled individual is categorically
prohibited by the Eighth Amendment to the United States
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
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
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.
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
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
from Cowley District Court; James T. Pringle, judge.
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
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.
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.
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
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.
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.
and Procedural Background
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.
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.
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.
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.
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.
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.
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
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.
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);
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.
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.
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.
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.
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.
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.
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.
did not put on any evidence in his defense.
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."
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.
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.
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.
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.
Thurber's Invocation of His Right to Counsel
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
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.
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 ).
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.
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
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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
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.
Standard of Review
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.
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 ). 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
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.
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.
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 ). 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
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.
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
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.
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.
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.
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
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.
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
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.
Prosecutorial Error in the Guilt Phase
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
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.)
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
. . . .
"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.)
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
"[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
"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
"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.]"
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
"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
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.
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."
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.
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.)
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."
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.)
Standard of Review
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 ), 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.
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).
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.
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 ), 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).
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.
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."
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.
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.
"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.
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.
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.
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.
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
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
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.
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
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
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.
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.
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
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.
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
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.
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.
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
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).
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.
Assuming Personal Responsibility
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
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.
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, ...