State v. Kleypas

The opinion of the court was delivered by

Per Curiam-.

Gary W. Kleypas was sentenced to death for the murder of C.W. He appeals, claiming errors occurred in the jury’s determination of his guilt and that death should be imposed. He also raises what he claims are constitutional deficiencies with Kansas statutes authorizing imposition of the death penalty. We conclude that no reversible error occurred during the guilt phase of the trial and affirm all of Kleypas’ convictions. We conclude that imposition of the death penalty must be vacated because of an instructional error. We remand for another separate sentencing proceeding to determine whether Kleypas should be sentenced to death.

The Kansas Legislature enacted a death penalty in 1994. See K.S.A. 21-3439; K.S.A. 21-4624. This case represents the first court *909 challenge under the enactment. Kansas law requires an automatic review by this court for anyone who has been sentenced to death under Kansas law:

“(a) A judgment of conviction resulting in a sentence of death shall be subject to automatic review by and appeal to the supreme court of Kansas in the manner provided by the applicable statutes and rules of the supreme court governing appellate procedure. The review and appeal shall be expedited in every manner consistent with the proper presentation thereof and given priority pursuant to the statutes and rules of the supreme court governing appellate procedure.

“(b) The supreme court of Kansas shall consider the question of sentence as well as any errors asserted in the review and appeal and shall be authorized to notice unassigned errors appearing of record if the ends of justice would be served thereby.

“(c) With regard to the sentence, the court shall determine:

(1) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; and

(2) whether the evidence supports the findings that an aggravating circumstance or circumstances existed and that any mitigating circumstances were insufficient to outweigh the aggravating circumstances.

“(d) The court shall be authorized to enter such orders as are necessary to effect a proper and complete disposition of the review and appeal.” K.S.A. 21-4627.

We will consider in this opinion Kleypas’ assigned errors, as well as our responsibilities under K.S.A. 21-4627, in three parts. Part one deals with issues arising in the guilt or innocence phase of the trial. This phase is, with few exceptions, analogous to the trial in a non-death penalty case. Part two, the penalty phase, concerns the constitutional challenges against the Kansas death penalty. Finally, part three, which is operative only if an accused is convicted of capital murder in the guilt phase, concerns whether the death penalty shall be imposed.

FACTS

On March 30, 1996, the body of Pittsburg State University student C.W. was discovered in the bedroom of her apartment at 113 W. Lindburg in Pittsburg, Kansas. She had been stabbed seven times through the heart, and her liver had been badly damaged, possibly by stomping. Her body was heavily bruised and her jaw was fractured. She also had a wound over her eyebrow that was caused by a sharp object. Socks tied to a chair in the bedroom, *910 along with socks tied to C.W.’s right leg, indicated that C.W. had been tied to the chair at one point. There was also evidence that C.W. had been sodomized by some object, and there were body fluids on her shirt.

On several occasions prior to the murder, C.W. and her roommate, Robyn, had returned to the apartment to find the door open. In September 1995, money and Robyn’s camera were stolen from the apartment. At the time it was stolen, the camera had contained film with photographs Robyn had taken on a trip to Padre Island, Texas. The camera also had sand in the viewfinder as the result of that trip. C.W. and Robyn requested that the lock to their apartment be changed as a result of the break-ins.

C.W. and Robyn had also been receiving obscene telephone calls from an unidentified male caller. The caller indicated that he knew their names and wished to engage in anal intercourse with C.W. After Robyn reported the calls to police, C.W.’s mother bought a caller identification unit for the apartment and the calls subsequently ceased.

On the night before the discovery of the body, C.W. and her best friend, Tiffany, had spent the evening watching a video in the apartment. C.W. dropped Tiffany off at her residence at approximately 1 a.m. The two made plans to go to garage sales at 8 a.m. that next morning. Mike, C.W.’s fiancee, returned an earlier call from C.W. shortly after 2 a.m. and spoke to her at that time.

When Tiffany arrived at the apartment at 8 a.m. to meet C.W., no one answered the door. Thinking C.W. had decided to sleep in, Tiffany went to a few garage sales alone. She then went to her house and attempted to call C.W. She left a message and continued to telephone because she knew C.W. was scheduled to work at J.C. Penney’s sometime in the early afternoon. After calling Penney’s and learning that C.W. was to report to work at 1 p.m. and then calling Mike, who told her that he had not heard from C.W., Tiffany decided to go to the apartment. When no one responded after she knocked on the doors and windows, she became alarmed and went next door to the apartment manager’s residence. The manager and her son went with Tiffany, and they entered C.W.’s apartment. Tiffany began to call for C.W. Tiffany noticed that C.W.’s *911 bedroom door was closed, and she knew this was unusual. When she told the manager she was afraid, the manager offered to open the door but Tiffany continued. She called out to C.W., but no one answered, so she opened the door and saw the body on the floor.

Police found a footprint outside the kitchen window of the apartment. Another window and its frame had been broken and the screen removed. The screen was found in the trash behind the apartment and a piece of screen was also found in the bedroom clothes hamper. There was blood on the inside doorknob of the apartment and a bloody handprint on the wall. Blood on a pillow in the bedroom was consistent with someone holding a pillow over the mouth of a person who was bleeding.

Suspicion focused on Kleypas, a neighbor of C.W. Kleypas was also a student at Pittsburg State University and had helped his cousin, a maintenance man, provide service for the neighboring apartment buildings. The police discovered that Kleypas’ telephone number had registered on the caller ID in C.W.’s apartment at 1:48 on the morning of the murder. One of the officers recognized the name and knew that Kleypas lived nearby and was on parole for a prior murder. A neighbor found a roll of film on the ground beside Kleypas’ car on the morning of the murder. The developed roll contained photographs of Robyn and her friends and three photographs of the inside of Kleypas’ apartment.

Officers went to Kleypas’ apartment building where they discovered blood on the outer door. A search warrant was obtained and the scene sealed. After the warrant arrived at the scene, officers discovered that the portion of the warrant which contained the list of items to be seized was blank. The officers present conferred and determined that the affidavit could be read together with the warrant. The officers entering Kleypas’ apartment were briefed on the items to be seized that were listed in the affidavit. Inside Kleypas’ apartment, police collected serological evidence and seized a large quantity of physical evidence, including a shower curtain, a pair of shoes, papers identifying Kleypas as the resident, drug paraphernalia, answering machine tapes, photographs, an empty bottle of Canadian Mist, and a wooden box with a false *912 bottom containing syringes. More drug paraphernalia was found in a hidden space outside the apartment door to Kleypas’ unit.

Between 7 and 9 on the morning of the murder, Kleypas went to two stores, writing checks at both for cash. He also withdrew $100 from his bank account and left town.

By that evening, Crawford County Attorney Barry Disney became aware that Kleypas was a suspect. Over the next 2 days, Disney discovered that a report had been filed in 1994 against Kleypas alleging rape and that he had decided not to file charges because he did not think he could win the case. Upon reconsideration, Disney decided to file charges for the 1994 rape. An arrest warrant was issued and Kleypas’ name was entered into a national law enforcement database.

On April 1, 1996, Agent Tom Williams of the Kansas Bureau of Investigation (KBI) was contacted by the Springfield, Missouri, Police Department and advised that Kleypas was in custody. Springfield police officers had been called to the Silver Saddle Motel on April 1 regarding an individual who was attempting suicide. Officers entered the motel room to find blood everywhere and John Kleypas, the brother of Gary Kleypas, standing above Gary Kleypas, and holding him down. The officers ordered John Kleypas from the room. As he left, Gary Kleypas dashed into the bathroom, he had so much blood on his body that officers could not identify his wounds.

Gary Kleypas was ordered from the bathroom. He reached into the waistband of his sweat pants and officers pulled their sidearms. Kleypas continued to reach inside his pants as if looking for something. After he was ordered to remove his hands, he held up his hands and one of the officers could see that he was holding a razor blade. Kleypas said over his shoulder that the officers should just go ahead and shoot him. An officer attempted to mace Kleypas but Kleypas stepped into the bathtub, pulled the shower curtain around his head, and began cutting himself on the legs and ankles. Kleypas then leaned back/and the officer sprayed mace directly into his face. Kleypas crawled out of the bathtub as ordered and collapsed in the doorway as he was crawling out of the bathroom. Medical personnel took him to the hospital.

*913 A search of the motel room uncovered several items, including a bloody check with a note on it that stated “Check brain. Full autopsy please.” They also found narcotics and needles with the plungers pushed in, a bag containing acne medication, a Wal-Mart receipt, and a camera with sand in the viewfinder. Several officers, including KBI Agent Tom Williams and Detective Stuart Hite of the Crawford County Sheriff s Department, traveled to Springfield. Agent Williams and Detective Hite visited Kleypas at the hospital where he had been admitted for treatment of his wounds. When they inquired of Kleypas how he was doing, Kleypas told them that it would have been better if “this” had worked and held up his bandaged arms. He told them he did not wish to talk to them at that time.

Upon release from the hospital, Kleypas was taken to the Green County, Missouri, Sheriff s Office for booking and was read his rights. He waived extradition to Kansas. Kleypas told Agent Williams and Detective Hite that they should wait to question him until during the ride back to Kansas. Kleypas, Detective Hite, and Agent Williams returned to Girard, Kansas, by car.

In the car, Kleypas admitted that he had killed C.W. Kleypas told the officers that he had entered the front door after ringing the door bell. C.W. answered the door, and Kleypas forced his way in with a filet knife. He forced C.W. into her bedroom and tied her to a chair. When he attempted to tie her hands, she panicked. She told him that if he would leave she would give him a head start before calling police. After being told he had been identified on the caller ID, Kleypas admitted making the telephone calls to the apartment. He said that he had called the night prior to the murder but did not recall saying anything.

Once in Girard at the Crawford County Sheriff s Office, Kleypas agreed to give the officers further details. Kleypas said he first attempted to enter the apartment through the front window. He had taken the screen off and the window broke. He took the screen to a trash can in the alley and then went to the front door. When Kleypas rang the bell the first time, C.W. peered out and called out for Mike, her fiancee. She said she knew it was Mike and said he should stop horsing around. She went back inside and Kleypas *914 rang the bell again. When she answered, he forced himself inside. He said he might have slapped C.W. and that they ran into the couch in the living room. He forced her into the bedroom and made her undress. Kleypas used socks to bind C.W. He attempted intercourse but was unable to obtain an erection. He said he penetrated her vaginally with his fingers. He also admitted that he had been watching C.W. and her roommate and had been making obscene telephone calls to them.

After he put his fingers into her vagina, Kleypas allowed C.W. to dress. She asked him to leave and said she would give him a head start. At some point, C.W. said she recognized him as the man who lived in the green house down the street. After he unplugged the telephone from the wall, there was a struggle because C.W. did not want her hands bound.

When C.W. became free of the chair, Kleypas tried to strangle her with his hands but that did not work. He took a piece of clothing and stuffed it into her mouth. When that was not successful, Kleypas found the knife and stabbed her repeatedly in the chest. He then took the engagement ring from her finger and some of the contents from her purse and left the apartment. Kleypas said he later disposed of some of the clothing he wore that night and other items by dropping them into a dumpster at a Springfield car wash, but he was uncertain what happened to the ring and it was never found.

Kleypas told the officers that after the murder he returned to his apartment, took a shower, and waited for stores to open before writing checks and leaving town. Kleypas also admitted taking the camera. He said that he wanted to plead guilty and spend the rest of his life in prison.

Kleypas was asked to make a written statement, but when he learned that it would take time to get a stenographer, he agreed to a videotaped statement if it was kept short, if he was not interrogated on tape, and if he could review the questions before taping. During the videotaped statement, Kleypas added that after he had tied up C.W., he sat on the bed for a time thinking about what to do.

*915 Kleypas was originally charged with first-degree murder, rape, aggravated criminal sodomy, aggravated robbery, aggravated burglary, burglary of a dwelling, and theft. He was notified in accordance with K.S.A. 21-4624(a) that the State would pursue the death penalty for capital murder.

The jury found Kleypas guilty of capital murder, attempted rape, and one count of aggravated burglary. Upon conclusion of the separate sentencing proceeding the jury, by unanimous vote, found beyond a reasonable doubt the following three aggravating circumstances: (1) Kleypas was previously convicted of a felony in which he inflicted great bodily harm, disfigurement, dismemberment, or death on another, (2) Kleypas committed the crime in order to avoid or prevent a lawful arrest or prosecution, and (3) Kleypas committed the crime in an especially heinous, atrocious, or cruel manner. The jury further found beyond a reasonable doubt that the existence of such aggravating circumstances were not outweighed by any mitigating circumstances which were found to exist. The jury determined that Kleypas should be sentenced to death. Kleypas filed a motion to recall the jurors and a motion for new trial which were denied by the trial court. Additional facts will be presented as necessary to address the issues raised.

PART I — GUILT PHASE

Kleypas raises the following issues challenging his convictions:

Ability to Present a Complete Defense Regarding Confabulation

Admissibility of Kleypas’ Confession

Validity of Search Warrant

Validity of Arrest Warrant

The Trial Court’s Failure to Suppress DNA Evidence

The Felony-Murder Jury Instruction

The Instruction on Attempted Rape

Failure to Instruct on Simple Battery

Instruction on Voluntary Intoxication

Instruction Regarding State’s Failure to Timely Notify Kleypas of Change in Testimony

Whether K.S.A. 21-3439(a)(4) Makes a Killing Occurring During an Attempted Rape Subject to the Death Penalty

*916 Prosecutorial Misconduct in the Guilt Phase

Jury Misconduct

Sufficiency of Notice to Seek the Death Penalty and Failure to Provide a Pretrial Ruling on Whether Sufficient Evidence Existed to Support Aggravating Circumstances

Competency to Stand Trial

Removal of Prospective Juror Molden for Cause — United States Constitution.

Removal of Five Jurors for Cause — Kansas Constitution

Denial of a Separate Sentencing Jury

Alleged Judicial Misconduct During Jury Orientation

Alleged Batson Violation for Peremptory Strike Juror Wheeler

Cumulative Error in the Guilt Phase

Issue 1. Ability to Present a Complete Defense Regarding Confabulation

Before trial, a full evidentiary hearing was held on Kleypas’ motion to suppress his confession. The videotaped confession detailed Kleypas’ actions on the evening of March 29 and the early morning hours of March 30 when C.W. was murdered. The trial court determined that this videotaped confession was freely and voluntarily given. The confession was admitted at trial and shown to the jury.

At trial, Kleypas challenged the reliability and weight to be given to his confession. His expert witnesses sought to establish that he experienced a blackout during the evening and morning of the murder, that his memory of the events related by his confession was impaired, and that the events he related were at least in part supplied by the officers who interrogated him on the return trip to Kansas. More specifically, Kleypas claimed that his confession was, at least in part, the product of confabulation. Confabulation was explained in depth by Kleypas’ expert witnesses as the process where one who has little or no memory of events occurring because of a blackout will gather information from outside sources to fill in the gaps in memory.

Defense expert witness Dr. John Wisner, an associate professor of psychiatry at the University of Kansas School of Medicine, testified regarding the concept of confabulation:

*917 “Confabulation is what happens when the brain tries to make up for missing information, tries to fill in missing pieces of data. It is part of a natural reflex that we use just, for example, in vision. There is a hole if you cover up one eye and use only one eye to look at the world, diere is actually a hole in your visual field where the nerve comes into the eye. There [are] no sensors there for light. But if you close your eye and look, you are not aware that there is a big hole there. The brain fills in missing information. It slides stuff in from the edges so that we are not aware of the gap. That is what also happens when diere is a memory lacuna [hole], when there is a gap in memory, the brain literally will try to bring in extraneous information, litde bits and pieces from elsewhere so as to ignore or fill in this big chuckhole in memory.”

Dr. Wisner thoroughly explained the process involved in confabulation to the jury. According to Dr. Wisner, there is a danger in questioning someone who has experienced a blackout by using leading questions or hypothetical questions because the question will contain a part of the answer. He described for the jury the difference between lying and confabulation:

“Well, they are completely different. In lying a person knows information and either contradicts it or makes something else up. It is a conscious, knowing act. Confabulation is literally a reflex. It is going to happen whether you want it to or not and if die circumstances are right, it is almost sure to happen.”

Blackouts and confabulation were thoroughly explored in Kleypas’ direct examination of Dr. Wisner. No limitation was imposed by the court on his testimony.

Following Dr. Wisner, Kleypas called another clinical professor of psychiatry from the University of Kansas School of Medicine, Dr. Ekkehard Othmer. During direct examination, Dr. Othmer was asked if in his medical opinion Kleypas had suffered a blackout during the period of time surrounding the 29th and 30th of March 1996. An objection was made by the State on the basis that the answer to this question related to the criminal responsibility of Kleypas for the acts he committed on those dates. More specifically, the State argued that while Kleypas had initially notified the State under the provisions of K.S.A. 22-3219 that he would rely on evidence of a mental disease or defect excluding criminal responsibility, Kleypas later withdrew this notice.

An extended hearing was conducted outside the presence of the jury on the admissibility of the answer of Dr. Othmer. Notwith *918 standing the argument of Kleypas that he was seeking admission of Dr. Othmer’s answer to attack the credibility of his confession on the basis that it was a product of confabulation, the trial court viewed admission of such evidence as an attempt by Kleypas to rely on the defense of lack of mental state to establish his lack of criminal responsibility for his acts on the 29th and 30th of March 1996. Had Kleypas not withdrawn his notice to rely on the mental disease or defect provisions of K.S.A. 22-3219, the State would have been entitled to have Kleypas examined by a psychiatrist of its own choosing to rebut such evidence. The court viewed Kleypas’ attempt as an indirect attempt to circumvent the provisions of K.S.A. 22-3219, by raising a very technical defense which the trial court characterized as “fundamentally unfair” and as an ambush. After much discussion and argument, the trial court concluded:

“The Court would deny that and the Court will order as follows. The defendant will be allowed to provide information to the jury through Dr. Othmer’s testimony regarding whether or not the defendant was suffering from some sort of black out during that period of time that he gave his confession or his statement so as to induce him or so as to make him prone to confabulate. The defendant seeks to go further than that and explore through this testimony the defendant’s state of mind at the time of the matter in question that violates 22-3219. The defendant previously had filed a notice of intent to rely upon the defense of lack of mental state. The defendant later withdrew that request and the court ordered that pursuant to that statute the State would have the opportunity to subject the defendant to its own expert examination.

“Upon being advised of that, the defendant withdrew its notice of the intent to rely upon that statute. The defendant seeks to essentially through the back door get into evidence that sort of information. This is fundamentally unfair to the State. The State has not had the opportunity to examine the defendant as to his state of mind. This is complex information, complex testimony. The State has a right to examine the defendant and, frankly, Mr. Moots [defense counsel], the Court continues to believe that no matter how you phrase it, you are trying to introduce testimony regarding the defendant’s state of mind the day in question and, in fact, you have told me you were wanting to introduce the defendant’s state of mind on the 29th and 30th.

“If you can limit it to the — to April 2 when the defendant gavé his alleged statement and whether or not he was suffering from some sort of mental state that would make him prone to confabulate on April 2,1 will allow that but anything beyond that you’ve gone too far and the Court would not specifically allow that.”

*919 Thus, Kleypas was prevented by the ruling of the court from inquiring about his state of mind on the 29th and 30th of March, but was allowed to inquire into his state of mind subsequent to the time of the offenses. The crux of Kleypas’ claim is that he was denied his constitutional right to present a complete defense because the court precluded meaningful questioning of Dr. Othmer regarding whether Kleypas’ statement to the police was confabulated.

After the trial court’s ruling, direct examination of Dr. Othmer continued and Kleypas was able to fully develop his theory that his confession was in part the result of confabulation. Dr. Othmer testified at length concerning confabulation, indicating to the jury that the method of asking questions used in Kleypas’ case, including urging him that the two families needed answers and that confession was good for the soul, increased the likelihood of confabulation. Dr. Othmer testified that Kleypas was much more susceptible to confabulation than an ordinary person. Finally, defense counsel asked Dr. Othmer:

“Q. Did the recorded interview that you watched, the twelve minute videotape, allow you to make any medical or psychiatric conclusions about what you believed occurred during the unrecorded statements?

“A. It is clearly a rehearsal. It is clearly picking out certain things from what went on — what went on before because these questions connect poorly. In a live interview, in a naturalistic interview, you pick up the clues from the — from the respondent and this is here missing as I showed with this one question like out of the blue these questions seemed to comment, you wonder where is the connection, where is it coming come from, what does a suspect tell you to prompt such a question.

“Q. Without knowing the exact form of the questions that were asked of Mr. Kleypas in the car, can you tell whether or not Agent Williams and Detective Hite provided him information that allowed him to confabulate parts of his statement to them?

“A. Yes, several of these questions contain information that Mr. Williams and Mr. Hite knew as a fact and they introduced that. Whether that is Mr. Kleypas’ true recollection or not is completely unclear.

“Q. Okay. So the form of the question is very important when you are dealing with somebody who may be confabulating at least parts of their statements?

*920 “A. Absolutely. You want to be as open ended as possible and not suggest any facts.

“Q. Okay. And since there is no recording of the earlier statements, can you tell what information was implanted for Mr. Kleypas and what was his own autonomous recollection?

“A. Well, that is difficult to do. Each of the questions that he was asked may have been his recollection, may not have been his recollection, so it is so confounded with the interview technique, that the results are very questionable to me.”

With these facts in mind, we turn to our analysis of this issue. Our standard of review concerning this claimed error involves the interpretation of K.S.A. 22-3219, as well as a determination whether, based on the evidence of record, Kleypas was denied his constitutional right to present a complete defense.

K.S.A. 22-3219 provides:

“Evidence of mental disease or defect excluding criminal responsibility is not admissible upon a trial unless the defendant serves upon the prosecuting attorney and files with the court a written notice of such defendant’s intention to assert the defense that the defendant, as a result of mental disease or defect lacked the mental state required as an element of the offense charged.”

Kleypas initially invoked the above provision but then withdrew his notice prior to trial. The trial court concluded Dr. Othmer’s testimony as to a blackout at the time of the offenses charged amounted to evidence of mental disease or defect and was therefore inadmissible. At the same time, both Dr. Wisner and Dr. Othmer were given wide latitude in their testimony concerning confabulation. Dr. Othmer was allowed to give his opinion that Kleypas’ confession was in part the product of confabulation.

Our prior cases draw a clear distinction between a defense of insanity and voluntary intoxication. See In re Habeas Corpus Petition of Mason, 245 Kan. 111, 113, 775 P.2d 179 (1989). In Mason, we stated:

‘We have recognized that insanity and voluntary intoxication are two separate defenses. In State v. Seely, 212 Kan. 195, 200, 510 P.2d 115 (1973), we held the defendant was not entitled to an insanity instruction because the evidence showed ‘alcohol was the key factor in [the defendant’s] loss of control and the sina qua non of all of his difficulties.’ We held ‘ “mental incapacity produced by voluntary intoxication, existing only temporarily at the time of the criminal offense” ’ does not reach the level of insanity. 212 Kan. at 197.

*921 “To hold that evidence of a temporary mental condition caused by voluntary intoxication requires the defense to plead insanity would be to abolish the distinctions between the two defenses clearly laid out by statute and our cases. No notice of an insanity defense is required where the evidence points only to a temporary mental state negating specific intent caused by the voluntary consumption of alcohol. The trial court thus erred in declaring a mistrial.” 245 Kan. at 113-14.

The trial court in Mason had ordered a mistrial because defense counsel had in its opening statement told the jury that the evidence would show that Mason was incapable of forming intent becaüse of his alcohol consumption. Similar to the trial court’s ruling in the case we now review, the court in Mason found that evidence supporting the defense theory of a blackout, including Mason’s previous history with alcohol, was evidence of mental illness amounting to insanity rather than simply evidence of voluntary intoxication. On appeal, this court reversed and drew a distinction between the defenses of insanity and voluntary intoxication, holding that evidence that a defendant suffered a blackout as a result of alcohol abuse, when introduced to show lack of intent, was not subject to the notice requirements of K.S.A. 22-3219. 245 Kan. at 114.

There is a difference between the claim of Kleypas and that in Mason. Kleypas’ claim of a blackout involved not only alcohol but chronic cocaine use and organic brain damage. These additional claims obviously influenced the trial court’s decision. Nevertheless, based on Mason and the cases cited therein, together with our consideration of K.S.A. 22-3219, we conclude that the trial court erred by not allowing Dr. Othmer to express his opinion as to whether Kleypas experienced a blackout at the time of the offenses.

The question we must answer is whether this error prevented Kleypas from presenting a complete defense and denied him a fair trial. See Crane v. Kentucky, 476 U.S. 683, 690-91, 90 L. Ed. 2d 636, 106 S. Ct. 2142 (1986) (holding that the exclusion of evidence which denied the defendant an opportunity to present a defense is subject to harmless error analysis).

In Crane, the prosecutor stressed in his opening statement that the Commonwealth’s case rested almost entirely on the defend *922 ant’s confession. In response, defense counsel outlined what would prove to be the principal avenue of defense — that for a number of reasons, the defendant’s confession should not be believed because it was rife with inconsistencies. In response to the prosecutor’s motion in limine to exclude such testimony, ""the court expressly held that the defense could inquire into the inconsistencies contained in the confession, but would not be permitted to "develop in front of the jury’ any evidence about the duration of the interrogation or the individuals who were in attendance.” 476 U.S. at 686. The United States Supreme Court reversed on the basis that the defendant was denied due process of law. The Court noted that the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense and stated:

“That opportunity would be an empty one if the State were permitted to exclude competent, reliable evidence bearing on the credibility of a confession when such evidence is central to the defendant’s claim of innocence. In the absence of any valid state justification, exclusion of this kind of exculpatory evidence deprives a defendant of the basic right to have the prosecutor’s case encounter and ‘survive the crucible of meaningful adversarial testing.’ [Citations omitted].” 476 U.S. at 690-91.

Similarly, in U. S. v. Hall, 93 F.3d 1337 (7th Cir. 1996), the 7th Circuit Court of Appeals reversed the defendant’s conviction where the trial court did not allow expert testimony that the defendant’s personality disorder could cause the defendant to give a false confession. The trial court entirely excluded expert testimony from a psychologist on false confessions, the indicia experts have identified to demonstrate when a false confession is likely to occur, and the factors experts rely on to distinguish between rehable and unreliable confessions. The court further limited the testimony of a psychiatrist, allowing him to testify about the defendant’s mental condition but not about the defendant’s susceptibility to various interrogation techniques and his capability of confessing to a crime he did not commit.

Unlike Crane and Hall, in this case Dr. Wisner testified extensively on the psychiatric medical aspects of blackouts and the possibility of later confabulation. Dr. Othmer testified that it was his opinion that Kleypas’ confession was at least in part confabulated *923 and gave the basis of his opinion. While Kleypas claims that the exclusion of testimony concerning his blackout on the night of the murder denied him die right to present his defense, he was able to show that he had been drinking before the crimes, that there was evidence of extensive cocaine use prior to the night of the murder, and that he suffered from organic brain damage, all of which increased his chances of a blackout and the likelihood tiiat the confession was the product of confabulation. When this evidence is considered with the testimony of Dr. Wisner and Dr. Othmer, it becomes clear that Kleypas was given the opportunity to convince the jury that his confession was in part confabulated. The limitations imposed by the court did not, in our opinion, prevent Kleypas from presenting his theory of defense to die jury, and we are able to conclude beyond a reasonable doubt that the error had little if any effect on the outcome.

Issue 2. Admissibility of Kleypas’ Confession

Kleypas filed a motion to suppress statements made to officers during the automobile trip from Missouri to Kansas, and the videotaped statement made to officers after he arrived in Girard. He claims that these statements were involuntary. Hearings were held during 3 days in September 1996 on Kleypas’ motion. The trial court denied Kleypas’ motion in a written opinion setting forth its findings of fact and conclusions of law. Thereafter, Kleypas raised additional contentions concerning his statements which were denied by the trial court after a further hearing on May 16, 1997.

Kleypas raises three points in this appeal: (1) His statements made shortly after his release from the hospital were involuntary because of his mental condition and an alleged threat by the interrogating officer, (2) the officers ignored his attempt to end the interrogation, and (3) his statements should be stricken because of alleged misconduct on the part of the State.

The standard of review to be applied in assessing Kleypas’ claims is well established:

“Factors to be considered in determining whether a confession is voluntary include: (1) the accused’s mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused on request to communicate with the *924 outside world; (4) the accused’s age, intellect, and background; and (5) the fairness of the officers in conducting the investigation. See State v. Esquivel-Hernandez, 266 Kan. 821, 975 P.2d 254 (1999); State v. Speed, 265 Kan. 26, 34-35, 961 P.2d 13 (1998). Voluntariness of a confession is determined from the totality of the circumstances, and where a trial court conducts a full prehearing on the admissibility of extrajudicial statements by the accused, determines the statements were freely and voluntarily given, and admits the statements into evidence at trial, appellate courts accept that determination if supported by substantial competent evidence and do not attempt to reweigh the evidence. [Citation omitted.]” State v. McCorkendale, 267 Kan. 263, 270-71, 979 P.2d 1239 (1999).

The trial court’s determination that Kleypas’ statements were made freely and voluntarily is supported by substantial competent evidence. In making its decision, the trial court considered all factors relating to voluntariness as set forth by this court in Esquivel-Hemandez and Speed.

The trial court’s decision did not expressly address Kleypas’ second allegation that the officers ignored his attempt to end the interrogation. However, we find no merit in this contention. Kleypas makes reference to his statement made during the ride from Missouri to Kansas, which was recorded. In his statement, Kleypas said: “I think that might be all for you.” He claims that this statement constituted an unambiguous assertion of his desire to end the interview. We disagree and conclude that the above statement, either standing alone or in context, was not an unambiguous assertion of a desire to end the interview.

‘When a suspect makes a statement which may be ambiguous as to whether the suspect is asserting a right to remain silent, the interrogator may, but is not required to, ask questions to clarify and instead may continue questioning. [Citations omitted.]” McCorkendale, 267 Kan. at 273. Kleypas did not unambiguously assert his right to remain silent, Michigan v. Mosley, 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321 (1975), and State v. Matson, 260 Kan. 366, 375, 921 P.2d 790 (1996), which would have required the officers to ‘scrupulously honor’ that right and cease the interrogation, were not implicated. Instead, his statement was at best ambiguous, thus, permitting the officers to continue their questioning or make an attempt to clarify Kleypas’ meaning.

*925 Finally, Kleypas claims that his statements made during the ride back to Kansas from Missouri should be struck because of misconduct on the part of the State. After the court’s original ruling on the motion to suppress, the audiotape of the trip back was enhanced by the Federal Bureau of Investigation (FBI). The enhanced version included one of the officers in the car saying: “Are we going to have to get out and walk?” Kleypas filed a supplemental motion to suppress, arguing that this phrase constituted a threat that he would be forced to get out and walk if he did not confess. At the hearing, KBI Agent Williams could not recall making such a statement. Ultimately, Detective Hite recalled that he had made the statement in reference to the small amount of gas left in the car. The court held that the statement was not a threat.

However, after the hearing, Agent Williams listened to the tape and at trial testified that he was the one who had made the statement. The State made no attempt to communicate this to defense counsel. Kleypas asserts that this misconduct on the part of the State should have been sanctioned by suppressing the confession.

The trial court concluded with ample evidentiary support in the record that there was no coercive interrogation of the defendant and no purposefully false testimony by the State that would invalidate the defendant’s statement. The record is devoid of evidence to suggest that there was bad faith or a deliberate withholding of the change in Agent Williams’ testimony by the prosecution. The court ultimately instructed the jury that it could consider the State’s failure to notify defense counsel of the change in testimony when determining the credibility of the witnesses. The findings of the trial court are supported in the record and there is no evidence to support exclusion of Kleypas’ confession. We conclude that the court did not err in admitting Kleypas’ confession.

Issue 3. Validity of Search Warrant

The trial court found that the search warrant was invalid and not cured by the affidavit in support of the warrant, but that the good faith exception applied and suppression of all the evidence uncovered was not warranted. Kleypas contends that the trial court erred in failing to suppress all of the items taken in the search of his *926 residence. He argues that the search warrant was invalid because it failed to list the items to be seized, that this failure was not cured by the affidavit, and that the officers far exceeded the scope of the search, thus, rendering the good faith exception unavailable.

The factual findings of the trial court are not in dispute. “When the facts material to a decision of the court on a motion to suppress evidence are not in dispute, the question of whether to suppress becomes a question of law. [Citation omitted.] An appellate court’s scope of review on questions of law is unlimited.” State v. Anderson, 259 Kan. 16, 18, 910 P.2d 180 (1996).

A search warrant was issued for Kleypas’ residence at 117 W. Lindburg in Pittsburg. The affidavit in support of the search warrant specifically fisted the items to be seized with particularity: “[T]race evidence from the murder victim . . . including but not limited to hair fiber of the [victim], fabric fiber from the clothing of the [victim], . . . any trace evidence from the body, blood from the victim, [and] weapons used in the murder.” However, the portion of the actual warrant which references the items to be seized was left blank. When officers at the scene noticed the blank portion of the warrant, Officer Rosebrough, the attesting officer, brought the supporting affidavit to 117 W. Lindburg. After the officers discussed the omission and reviewed the affidavit, they decided the warrant was valid because the supporting affidavit fisted the items to be seized with particularity. The specific items were discussed so the officers would know exactly what to seize. Officer Rosebrough did not enter 117 W. Lindburg because of the adopted policy that anyone entering the crime scene at 113 W. Lindburg would not enter the one at 117 W. Lindburg to prevent cross-contamination.

The officers found a crack pipe in a ceiling duct located in a public hallway outside the door to Kleypas’ apartment.

Upon entering the apartment, officers photographed the interior, then exited and sealed the apartment awaiting KBI lab analysts. KBI lab technicians entered the apartment later the same day, March 31, 1996, and recovered various items of potential evidence including alleged.blood residue.

*927 Officers then reentered the apartment on April 3 to complete the search and specifically to seize the items listed on the affidavit. By this time, the officers were aware that Kleypas had given a statement claiming that he discarded the weapon.

During the search, officers seized items specifically listed and items with apparent blood residue on them. Some item? such as shoes and clothing were seized to determine if any blood residue or other trace evidence might be found. Other items such as the telephone answering machine with cassette and videotapes were seized to determine if they revealed any connection between Kleypas and C.W. The officers were aware at this time that C.W.’s caller ID showed a call from Kleypas’ apartment on the night of the homicide.

Officers also seized several boxes containing Kleypas’ personal effects such as memorabilia, pictures of Kleypas and others, private papers, jewelry, and other mementos as revealed in the inventory. The trial court found these items were seized because they contained documentation verifying Kleypas as the occupant of the apartment. Though not all this paraphernalia proved identity, the officers did not individually examine eveiy item prior to seizure; rather, if a box or packet contained items showing the identity of the occupant of the apartment, the officers seized the entire box or packet. The supervisor of the search team, KBI Agent Adams, believed all items seized had potential evidentiary value.

Officers also found drugs and drug paraphernalia during the search.

The trial court concluded that while an affidavit could be used to cure an insufficient description of the items to be seized in the search warrant, the affidavit must be referenced in the warrant to do so. The court also found that while the officers exceeded the scope of the items described in the affidavit, this conduct did not require the suppression of all the evidence seized. Rather, the trial court ordered that any items not contained in the affidavit be suppressed.

Both the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights protect the rights of the people against unreasonable searches, and both provide that *928 “no [w]arrant[s] shall issue, but upon probable cause, supported by [o]ath or affirmation, [and] particularly describing the place to be searched and the persons or [property] to be seized.” U.S. Const, amend. IV; Kan. Const. Bill of Rights, § 15. K.S.A. 22-2502(a) also requires a search warrant to particularly describe a person, place, or means of conveyance to be searched and things to be seized.

“The purpose of the constitutional requirement that search warrants particularly describe the place to be searched and the person or properly to be seized is to prevent general searches and the seizure of items at the discretion of the officer executing the warrant.” State v. LeFort, 248 Kan. 332, Syl. ¶ 1, 806 P.2d 986 (1991). “ ‘[I]t is constitutionally required that a search warrant shall “particularly” describe the place to be searched. Thus general or blanket warrants which give the executing officers a roving commission to search where they choose are forbidden.’ (Emphasis added.)” 248 Kan. at 335 (quoting State v. Gordon, 221 Kan. 253, 258, 559 P.2d 312 [1977]). This particularity requirement is equally applicable to the specificity in the items to be seized. See State v. Dye, 250 Kan. 287, 293, 826 P.2d 500 (1992).

The question of whether an affidavit which does list the place to be searched or the items to be seized with particularity may be sufficient to cure an inadequate description in a search warrant has been answered in different ways by different jurisdictions and there is no real universal agreement. See U. S. v. Morris, 977 F.2d 677, 681 n.3 (1st Cir. 1992); U. S. v. George, 975 F.2d 72, 76 (2d Cir. 1992); United States v. Johnson, 690 F.2d 60, 64 (3d Cir. 1982); U S. v. Gahagan, 865 F.2d 1490, 1496-98 (6th Cir. 1989); U. S. v. Tagbering, 985 F.2d 946, 950 (8th Cir. 1993); U. S. v. Towne, 997 F.2d 537, 548 (9th Cir. 1993); United States v. Wuagneux, 683 F.2d 1343, 1351 n.6 (11th Cir. 1982); U. S. v. Maxwell, 920 F.2d 1025, 1031-32 (D.C. Cir 1990); People v. Staton, 924 P.2d 127, 132 (Colo. 1996); State v. Balduc, 514 N.W.2d 607, 610 (Minn. App. 1994); State v. Stenson, 132 Wash. 2d 668, 696, 940 P.2d 1239 (1997).

In some cases, in order for an affidavit to cure a warrant which is defective for lack of specificity, the affidavit must be incorporated by reference in the warrant and present at the search. See Towne, *929 997 F.2d at 548; Morris, 977 F.2d at 681 n.3; Maxwell, 920 F.2d at 1031-32; Johnson, 690 F.2d at 64; Staton, 924 P.2d at 132; Balduc, 514 N.W.2d at 610. The court in Towne noted that this two-step rule serves two purposes. It assures that the affidavit actually limits the discretion of the officers executing the warrant and provides the person being searched of notice of the specific items the officer is entitled to seize. 997 F.2d at 548. In others, express incorporation is not necessary if the affidavit is available at the scene. See Gahagan, 865 F.2d at 1496-98; Tagbering, 985 F.2d at 950. See also Wuagneux, 683 F.2d at 1351 n.6 (affidavit sufficient if either incorporated by reference, attached, or present at the scene). In still others, the affidavit must be actually attached to the warrant and incorporated in it. See George, 975 F.2d at 76; Stenson, 132 Wash. 2d at 696.

In Kansas, we have held that an affidavit may cure an omission in the search warrant even though the affidavit is not attached to the warrant or present at the scene, when the affiant was one of the executing officers. See Dye, 250 Kan. at 294-95; LeFort, 248 Kan. at 341 (both cases involving a search warrant that did not sufficiently describe the property to be searched.) In LeFort, we stated:

“In determining whether the description given the executing officer in the warrant was sufficient, the initial examination is directed to the description stated in the warrant. However, if the description in the warrant is inadequate due to a technical irregularity, the focus then shifts to the description contained in the application or affidavit for the warrant if the officers were able to use that description to execute the search warrant. When the officer executing the search warrant is the affiant who described the property to be searched, and the judge finds there was probable cause to search the property described by the affiant and the search is confined to the area which the affiant described in the affidavit, the search does not affect the substantial rights of the accused and is in compliance with the Fourth Amendment of the Constitution of the United States and Section Fifteen of the Kansas Bill of Rights.” 248 Kan. at 341.

In the case at hand, although the affiant, Officer Rosebrough, did not actually execute the search warrant, he was present at the scene with the affidavit and the officers who executed the search warrant were briefed on the affidavit so they would know what to seize. There is no appreciable difference between the situation in *930 this case and those in LeFort and Dye. Indeed, the officers had more information in the case at hand because even though the affiant was not actually taking part in the search, he was at the scene along with the affidavit, which was not actually present in either LeFort or Dye. See Dye, 250 Kan. at 294. We, therefore, hold that where the affidavit contains a particularized description of the items to be seized; the affiant and the affidavit are both present at the scene of the execution of the search warrant, even if the affiant is not the person executing the search warrant; and the officers executing the search warrant are briefed as to the items listed in the affidavit, the description in the affidavit cures a deficiency in the description of the search warrant. The warrant was, therefore, valid, and the trial court erred in finding otherwise.

The question remaining is whether the seizure of items outside the scope of the warrant requires suppression of all the evidence seized. “When law enforcement officers grossly exceed the scope of a search warrant in seizing property, the particularity requirement is undermined and a valid warrant is transformed into a general warrant thereby requiring suppression of all evidence seized under that warrant.” U.S. v. Medlin (Medlin II), 842 F.2d 1194, 1199 (10th Cir. 1988). See U.S. v. Foster, 100 F.3d 846, 849-50 (10th Cir. 1996). However, “[a]n ‘[ujnlawful seizure of items outside a warrant does not alone render the whole search invalid and require suppression of all evidence seized, including that lawfully taken pursuant to the warrant.’ [Citations omitted.]” Gahagan, 865 F.2d at 1496. Unless there is a flagrant disregard for the terms of the warrant, only the improperly seized evidence, rather than all the evidence, need be suppressed. See Waller v. Georgia, 467 U.S. 39, 43 n.3, 81 L. Ed. 2d 31, 104 S. Ct. 2210 (1984); United States v. Medlin (Medlin I), 798 F.2d 407, 411 (10th Cir. 1986); Wuagneux, 683 F.2d at 1354.

After consideration of the evidence in this case, we agree with the trial court’s suppression of only those items not mentioned in the affidavit. Although there were items seized outside the scope of the warrant, the officers’ conduct did not evidence a “flagrant disregard” for its terms. Many of the items taken were taken because they identified Kleypas as the owner of the property or be *931 cause they were in boxes with other items. However, there is no indication that the search rose to the level which the courts in Medlin II and Foster found to justify blanket suppression. See Medlin II, 842 F.2d at 1195-96 (667 items of property not identified in the warrant versus approximately 130 firearms seized in accordance with the warrant); Foster, 100 F.3d at 850 (officers admitted taking “anything of value” whether or not contained in the warrant). Under the facts of this case, blanket suppression was not warranted, and the trial court correctly suppressed only those items seized which were not identified in the search warrant.

Issue 4. Validity of Arrest Warrant

Crawford County Attorney Barry Disney based the warrant for Kleypas’ arrest on the allegation of a rape that occurred in January 1994, rather than on the murder of C.W. Before the trial court and now on appeal, Kleypas claims that the affidavit in support of his arrest warrant omitted material matters and that the trial court erroneously relied on hearsay evidence at the suppression hearing. Thus, Kleypas claims that the arrest was illegal and that the trial court erred by denying his motion to suppress his statement and all other evidence derived from the arrest.

In order to analyze this issue, it is necessary to set forth facts regarding the alleged 1994 rape. The victim, D.J., was Kleypas’ live-in girlfriend. The police were dispatched to the apartment that D.J. shared with Kleypas where she claimed Kleypas held her hostage for an hour and a half, threatened her with a knife, and raped her by digital penetration. The officers taking the report noted that D.J. appeared to have been drinking and may have been intoxicated. The officers noted also that D.J. appeared somewhat confused about what had happened and might not be telling the true story. There was also some inconsistency in D.J.’s story regarding whether Kleypas had a knife. At the time, Disney declined to prosecute the rape.

The affidavit filed by Disney in support of an arrest warrant based upon the 1994 incident provided:

“That on 1-23-94 Pittsburg Police received a call from a [D.J.]. Officer Joseph Head responded to [D.J.’s] location which was a residence just north of 1706 S. *932 Pine. [D.J.] advised Head that her and her boyfriend, Gary W. Kleypas, had been to J.B.’s Bar & Grill in Pittsburg, Kansas. After leaving J.B.’s they went to the home they mutually shared located at 1706 S. Pine, Pittsburg, Kansas. [D.J.] advised that once at the home she and Kleypas began to argue. [D.J.] advised Head that Kleypas had lost control’ and held her hostage in the house for 1.5 hours. That during this 1.5 hours he had threatened her and had put his hands around her throat. [D.J.] further advised that Kleypas penetrated her rectum and vagina with his fingers. [D.J.] advised Head that she did not give Kleypas permission to put his finger in her rectum or vagina.”

After a full and complete hearing, the trial court issued its memorandum decision finding that Disney declined to prosecute the rape in 1994 because he believed the case would be difficult to win and not because there was insufficient probable cause to support charges. The trial court further found that the following factors involving a reevaluation of the case with additional information prompted the reversal of Disney’s position: (1) Disney was advised by the Pittsburg Chief of Police that he should have filed the rape charge in 1994, (2) KBI Special Agent Delaney interviewed D.J. after Kleypas became a suspect in C.W.’s death and indicated that D.J. still maintained that Kleypas had raped her in 1994, and Delaney stated that she would not be a “bad witness,” (3) Delaney was able to clear up any confusion over whether Kleypas had a knife during the 1994 incident, (4) Kleypas was a suspect in both the 1994 rape and C.W.’s murder, which had apparent sexual overtones, and (5) Kleypas had been convicted and incarcerated in Missouri for a murder with sexual overtones.

Where a defendant attacks the affidavit supporting an arrest warrant based on the omission of material information, he or she must show: (1) The omission was deliberate, and (2) the omission was material. An omission is material if the original affidavit together with the previously omitted information would not support a finding of probable cause. State v. Breazeale, 238 Kan. 714, 725, 714 P.2d 1356, cert. denied 479 U.S. 846 (1986). Probable cause exists if, under the totality of circumstances as set forth in the affidavit, a fair probability exists that a crime has been committed and that the defendant has committed it. 238 Kan. at 726.

At trial, Kleypas submitted 15 alleged omissions. On appeal, he now relies upon the following three omissions from the affidavit *933 which he contends cast doubt on the veracity of the victim’s allegation of rape: (1) The victim had provided inconsistent statements as to whether a knife had been used, (2) the victim had been drinking and could have been intoxicated, and (3) the investigating officer had concluded that the victim appeared confused and might not be telling the truth.

Our scope of review in regard to the alleged error is limited to determining whether substantial competent evidence supports the trial court’s findings. Breazeale, 238 Kan. at 724. The trial court, in a well-reasoned opinion, specifically examined each alleged omission in the affidavit, outlined all the evidence relating to probable cause, and found that there was substantial competent evidence to support the issuance of the warrant even considering the omissions. The findings and conclusions of the trial court are amply supported by the record.

Kleypas also contends that the trial court incorrectly relied on inadmissible hearsay at the hearing on the motion to suppress, specifically, Disney’s testimony regarding Delaney’s conversation with D.J. However, it is clear that the trial court relied on the evidence not to prove the truth of the matter asserted therein but to show its effect on Disney’s decision to file the charges in 1996 that he had not filed in 1994. As such, the testimony was not hearsay. See K.S.A. 60-460.

Under these circumstances, applying our standard of review, we affirm the trial court’s denial of Kleypas’ motion to suppress for lack of probable cause for the arrest warrant.

Issue 5. The Trial Court’s Failure to Suppress DNA Evidence

Kleypas argues that the trial court erred in failing to suppress the State’s evidence regarding DNA testing by the FBI where the prosecutor failed to inform the FBI of the court’s order to exercise good faith in using only that portion of any item necessary for testing. Kleypas contends that because the FBI consumed all the material in its testing, suppression is warranted.

The State sent numerous items to the FBI laboratory for DNA testing. Kleypas requested that the trial court allow him to also *934 examine the evidence. The trial court, in response, made the following order:

“[T]he State can conduct testing of evidentiary objects that consumes those objects, however, there is no need to simply destroy items of evidence. . . . You are free to conduct whatever testing you deem appropriate. Now, I will ask, indeed; I will order the State to exercise good faith. Don’t unduly consume an evidentiary item. Use that portion of the item that is necessary for testing but don’t just arbitrarily consume something completely unless such is necessary for the testing. So don’t go overboard I guess is what I’m saying.”

Of the items sent, one was a sock that had been tied around the victim’s leg and another was a blue blanket recovered from beneath her body. The FBI totally consumed bloodstains from both items. At trial, the FBI serologist testified that there was a high statistical probability that Kleypas was the donor of the bloodstains found on the sock and blanket.

Prior to trial, Kleypas filed a motion to bar the DNA evidence. During hearings on tins motion, experts presented conflicting evidence regarding the necessity of consuming all the available material for DNA testing. The experts estimated the sample from the sock and blanket yielded 200 and 400 nanograms of material for testing respectively. Kleypas’ witnesses, Dr. Dean Stetler, a professor of microbiology, Chair of Genetics, and Director of Undergraduate Biological Sciences, at the University of Kansas, and Dr. Susan Egan, assistant professor in the University of Kansas Department of Microbiology and Program of Genetics, testified that a minimum of 50 nanograms was required to perform a Restriction Fragment Length Polymorphism (RFLP) test and only 250 picograms for the less specific Polymerase Chain Reaction (PGR) test. In Dr. Stetler’s opinion, the FBI did not exercise good faith in attempting to preserve at least the minimum amount of material for independent testing by the defense. However, Dr. Stetler stated that 200 nanograms is often a target amount to assure more reliable results.

In rebuttal, Dr. Thomas Callahan, the forensic examiner for the FBI, testified that as a matter of unwritten protocol in DNA testing, his laboratoiy uses 200 nanograms of matter. If the items come from a crime scene, however, the lab prefers to use 400 nanograms. *935 Dr. Callahan testified that the State did not inform the FBI of the trial court’s order to use good faith in any correspondence; however, the FBI consumed all the material from the items as a matter of routine procedure.

When questioned, Dr. Callahan recalled a telephone conversation with prosecutor John Bork, asking that the FBI preserve some material if possible. However, Bork authorized the FBI to use all of the bloodstained material if necessary for its DNA testing. After objection, the trial court agreed to strike the telephone conversation and not consider it in the court’s decision.

In its memorandum decision, the trial court commented that the State should have clearly communicated the trial court’s order to the FBI lab. The court stated, however, that the real issue before the court was whether the FBI itself exercised good faith in testing the material. The trial court noted that all the experts were in agreement that a minimum of 50 nanograms was required for DNA testing but that the accuracy of the results increase as greater quantities are used.

The trial court found that the sample from the sock comprised approximately 200 nanograms and the sample from the blanket amounted to approximately 400 nanograms. The trial court further found that although the FBI consumed both items in the testing process, the FBI conducted its testing within its standard operating procedures. It was the FBI laboratory’s procedure to load a minimum of 200 nanograms, and optimally, 400 nanograms. The fact that this practice is not written manual procedure did not concern the trial court as long as the testimony supported a finding that the FBI did not process this case any differently than any other case handled by the lab.

Therefore, the trial court concluded that in light of the United States Supreme Court decision in Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988), and the trial court’s own finding that the FBI followed routine procedure in its handling of the test items, Kleypas’ motion to suppress should be denied. Nevertheless, the trial court was mindful of the State’s failure to inform the FBI of the court’s order to preserve a portion of the material if possible for independent testing. As this failure did not *936 impact the propriety of the testing itself, the trial court found suppression was not appropriate. Instead, the trial court believed the jury should be instructed that it could consider the State’s failure to affirmatively request the FBI to make a good faith attempt to preserve a portion of the sample in determining the weight to be given the DNA results.

The trial court correctly applied Youngblood in resolving this issue. In Youngblood, the Arizona Court of Appeals reversed the defendant’s conviction on child molestation, sexual assault, and kidnapping based on the State’s failure to preserve semen samples from the victim’s body and clothing. The United States Supreme Court reversed, finding the State’s failure to preserve evidentiary material, absent a showing of bad faith, was not a violation of the Due Process Clause of the Fourteenth Amendment. The Court stated:

“The Due Process Clause of the Fourteenth Amendment, as interpreted in Brady [v. Maryland, 373 U.S. 83 (1963)], makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But we think the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant. . . . We think that requiting a defendant to show bad faith on the part of the police both limits the extent of die police’s obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating die defendant. We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” 488 U.S. at 57-58.

In Youngblood, the Court found the failure of the police to refrigerate the victim’s clothing and to perform tests on semen samples was, at worst, negligence. The Court noted that none of this information was concealed from the defense and that the evidence, such as it was, was made available to the defense. As a result, the Court concluded there was no showing of bad faith. 488 U.S. at 58.

*937 When reviewing a trial court’s decision as to the suppression of evidence, an appellate court normally gives great deference to the factual findings of the trial court. The ultimate determination of the suppression of the evidence is a legal question requiring independent appellate determination. State v. Vandiver, 257 Kan. 53, 58, 891 P.2d 350 (1995). The question of whether the State acted in bad faith is a question of fact. State v. Lamae, 268 Kan. 544, 551, 998 P.2d 106 (2000)."

Kleypas does not contest the trial court’s finding that the FBI acted in good faith. Rather, he directs fault at the State for the FBI’s failure to preserve material for independent DNA analysis. Despite Kleypas’ attempt to focus solely on the State’s conduct, the FBI’s good faith was relevant to the trial court’s decision. The trial court clearly considered the State’s failure to inform the FBI as part of the circumstances surrounding the DNA testing but found it insufficient to require suppression. This decision is supported by substantial competent evidence.

Based on the United States Supreme Court’s decision in Young-blood and the facts of this case, we hold that the trial court did not err in failing to suppress the DNA evidence.

Issue 6. The Felony-Murder Jury Instruction

The trial court gave an instruction on felony murder as a lesser included offense of capital murder. Kleypas contends that the trial court erred, however, in refusing to instruct the jury that a felony murder could occur in the “flight from” an inherently dangerous felony.

K.S.A. 21-3401(b) defines felony murder as the killing of a human being committed “in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto.” The instruction given by the trial court omitted the term “flight from” because the trial court found that there was no evidence to support it. Kleypas contends that the jury could have determined that he killed C.W. during his “flight from” an inherently dangerous felony and that the trial court’s refusal to include the term “flight from” violated his Sixth Amendment right to a fair trial.

*938 A criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence as long as: (1) the evidence, when viewed in the light most favorable to the defendant’s theory, would justify a jury verdict in accord with that theory and (2) the evidence at trial does not exclude a theory of guilt on the lesser offense. State v. Williams, 268 Kan. 1, 15, 988 P.2d 722 (1999). An instruction on a lesser included offense is not proper if from the evidence the jury could" not reasonably convict of the lesser offense. State v. Robinson, 261 Kan. 865, 883, 934 P.2d 38 (1997).

Kleypas argues that he was entitled to the “flight from” part of the instruction because there was evidence that he committed the murder to facilitate flight and that the State sought the death penalty based on an aggravating factor which involved flight. He contends that the State’s reliance on the aggravating factor that “[t]he defendant committed the crime in order to avoid or prevent a lawful arrest or prosecution” mandates the “flight from” instruction. See K.S.A. 21-4625(5). In State v. Purnell, 126 N.J. 518, 533-34, 601 A.2d 175 (1992), the New Jersey Supreme Court held that where a separate offense encompassed by the aggravating factor is, in itself, a basis for an alternative form of murder that is non-capital, a defendant is constitutionally entitled to have that alternative offered for jury deliberation in the guilt phase.

However, neither of these arguments requires the requested instruction. The terms “in the commission of,” “attempt to commit,” and “flight from,” as used in the felony-murder statute, are temporal requirements delineating when a killing may occur and still be part of the underlying felony. See State v. Hearron, 228 Kan. 693, 694-96, 619 P.2d 1157 (1980). That a murder was committed to facilitate escape or to avoid or prevent arrest or prosecution are matters of intent and, as such, are fundamentally different from the “flight from” requirement for felony murder. A murder may be committed in order to facilitate escape or to avoid or prevent an arrest or prosecution and still not occur during the flight from the crime. Similarly, a murder may occur during the flight from the crime but not have as its purpose the facilitation of escape or the avoidance or prevention of arrest or prosecution. The need for *939 an instruction is instead based on the evidence in each particular case.

In the case at hand, there was no evidence from which a jury could reasonably have convicted Kleypas of felony murder based on the theory that the killing occurred during the “flight from” an inherently dangerous felony. In order to require such an instruction, there must be evidence that the killing occurred during flight from the scene of the felony. There was no such evidence in this case, and the trial court’s instruction was correct.

Kleypas also contends that trial court erred by not defining the phrase “in the commission of’ in the felony-murder instruction. He argues that the court should have defined the term “commission” to make it clear to the jury that a killing which occurred subsequent to the underlying felony could still be considered felony murder. He argues that such an instruction was necessary in light of the jury instruction on capital murder that used the terminology “in the commission of or subsequent to” the underlying offense.

Kleypas admits that he failed to request such an instruction. We have held:

“No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of his or her objection, unless the instruction or the failure to give the instruction is clearly erroneous. Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” State v. Cravatt, 267 Kan. 314, Syl. ¶ 1, 979 P.2d 679 (1999).

Despite Kleypas’ contention, we conclude that the instruction as given properly stated the law and that the jury could not have been misled by the failure to define the term “commission.”

“When reviewing challenges to jury instructions, the instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous.” State v. Aikins, 261 Kan. 346, Syl. ¶ 25, 932 P.2d 408 (1997).

*940 Therefore, we conclude that the instruction given was not clearly erroneous.

Issues 7 and 8. The Instruction on Attempted Rape

Kleypas argues that the trial court failed to include an essential element in its instruction on attempted rape. He admits that he failed to object to this instruction or to request a different instruction and, therefore, our review is limited to determining whether the instruction as given was clearly erroneous. Cravatt, 267 Kan. 314, Syl. ¶ 1.

K.S.A. 21-3301(a), defining attempt, states: “An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” (Emphasis added.) The trial court, however, instructed the jury on the crime of attempted rape as follows:

“If you find the defendant is not guilty of rape, you shall consider if he is guilty of an attempt to commit the crime of rape. To establish this charge, each of the following claims must be proved:

“1. That the defendant performed an act toward the commission of the crime of rape;

“2. That the defendant did so with the intent to commit the crime of rape;

“3. That the defendant failed to complete commission of the crime of rape;

“4. That this act occurred on or about the 30th day of March, 1996, in Crawford County, Kansas.” (Emphasis added.)

Kleypas contends that because the instruction given to the jury did not make it clear that an “overt” act was required, the jury might have incorrectly relied on mere acts of preparation to satisfy die overt act requirement.

We have held that an overt act is an essential element of an attempted crime. State v. Collins, 257 Kan. 408, 418, 893 P.2d 217 (1995); State v. Robinson, 256 Kan. 133, 136, 883 P.2d 764 (1994); State v. Gobin, 216 Kan. 278, 280-82, 531 P.2d 16 (1975). Mere preparation is not sufficient to constitute an overt act. Gobin, 216 Kan. at 281-82.

The instruction given by the trial court was taken verbatim from PIK Crim. 3d 55.01. We are puzzled as to why the PIK instruction *941 does not use the word “overt” in keeping with the language of the statute. However, even had the instruction used the word “overt,” it would not have alleviated the problem of which Kleypas complains. The word “overt” as used in conjunction with an attempt means: “An outward act, however innocent in itself, done in furtherance of a conspiracy, treason, or criminal attempt.” Blacks Law Dictionary 1130 (7th ed. 1999). The word “overt” used in combination with “act” would be no more definitive or descriptive of what acts a jury would be required to find in any particular case in order to support a conviction than the phrase “act towards the commission of a crime.”

We hold that the language of the instruction which required the jury to find that “the defendant performed an act toward the commission of the crime” sufficiently instructed the jury with regard to the crime, and the instruction was not clearly erroneous. Nevertheless, in order to further clarify the instruction in the future, we recommend that PIK Crim. 3d 55.01 be amended to insert the word “overt” immediately before the word “act” and to include a sentence which states: “Mere preparation is insufficient to constitute an overt act.”

Kleypas also contends, with regard to the instruction on attempted rape, that the instruction was clearly erroneous because it failed to specify the overt act which supported the conviction. Kleypas argues that the jury was required to be unanimous on the overt act which supported the attempted rape and the court either should have required the State to elect an overt act or given a unanimity instruction. Again, because Kleypas did not object to the instruction at trial, our review is limited to the determination as to whether the instruction given was clearly erroneous. Cravatt, 267 Kan. 314, Syl. ¶ 1.

We have held that in a multiple acts case where several acts are alleged and any one of them could constitute the crime charged, the jury must be unanimous as to which act or incident constitutes the crime. State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994). In such a case, either the State must be required to elect the particular criminal act upon which it will rely for conviction or the trial court must instruct the jury that all must agree on the *942 underlying criminal act. 255 Kan. at 289-90. In contrast, in an alternative means case where a single criminal offense may be committed in various ways, there must be unanimity as to guilt on the crime charged, but unanimity is not required as to the means by which the crime was committed. In reviewing an alternative means case, the court must simply determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. 255 Kan. at 289-90.

However, the attempted rape charge at hand presents neither a multiple acts nor an alternative means situation. The possible overt acts need not themselves be illegal or chargeable as criminal offenses and, thus, this is not a multiple acts case. Nor are the overt acts alternative means of committing the offense. Rather, they are acts, however innocent in themselves, which signify and trigger liability for the offense of attempt. As such, there was no requirement that the jury be instructed as to a specific overt act. See State v. Thompson, 3 Kan. App. 2d 426, 430, 596 P.2d 174, rev. denied 226 Kan. 793 (1979). Therefore, the instruction given was not clearly erroneous.

Issue 9. Failure to Instruct on Simple Battery

Kleypas argues that the trial court erred in failing to instruct on simple battery as a lesser included offense of attempted rape. He contends that the evidence adduced at trial to prove attempted rape necessarily proved the offense of simple batteiy.

A trial court has the affirmative duty to instruct the jury on all lesser included offenses established by the evidence. Instructions on a lesser included offense must be given even though the evidence is weak and inconclusive and consists solely of the testimony of the defendant. State v. Ordway, 261 Kan. 776, 784, 934 P.2d 94 (1997). An instruction on an included offense is not proper if from the evidence the jury could not reasonably convict of the lesser offense. State v. Robinson, 261 Kan. 865, 883, 934 P.2d 38 (1997).

Based on the law in effect at the time the crime was committed, our analysis of whether simple battery was a lesser included offense *943 of attempted rape is conducted under the rules laid out in State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988).

“[Fike] provides a two-pronged test for determining if there is a lesser included crime under K.S.A. 21-3107(2)(d). Under the first prong, the statutory elements of the crime charged and the alleged lesser included crime are examined. If all of the statutory elements of the alleged lesser crime will automatically be proved if the State establishes the elements of the charged crime, the alleged lesser crime is an included crime of the greater. 243 Kan. at 368. If no included crime is found under the first prong, there may still be an included crime under the second prong of the test. Under the second prong, the charging document is examined to determine whether the evidence that must be adduced at trial to prove the crime charged would also necessarily prove another crime. If another crime is necessarily proved by proving the charged crime, die former is an included crime. 243 Kan. at 368.” Williams, 268 Kan. at 17.

Simple battery was not a lesser included offense of attempted rape under the first prong of Fike. See State v. Arnold, 223 Kan. 715, 716-17, 576 P.2d 651 (1978) (holding simple battery not a lesser include offense of attempted rape under the elements test). Further, the State was not required to prove that Kleypas touched C.W. in a rude, insolent, or angry manner in order to prove attempted rape. All that was required was that the State prove some overt act toward the commission of rape. Under these circumstances, simple battery was not a lesser included offense of attempted rape, and the trial court did not err in failing to give such an instruction.

Issue 10. Instruction on Voluntary Intoxication

Kleypas raises two contentions with regard to the court’s instruction on voluntary intoxication. First, he argues that the instruction changed voluntary intoxication into an affirmative defense thereby improperly placing the burden upon Kleypas. Second, he contends that the instruction prohibited the jury from aggregating intoxication with other evidence of his mental disorder, which also affected his capacity to form the necessary intent.

As we have previously stated, our standard of review for these claims based upon Kleypas’ objection to the instruction given is well established:

*944 “When reviewing challenges to jury instructions, the instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous.” Aikins, 261 Kan. 346, Syl. ¶ 25.

Kleypas requested the following instruction, which tracked with the provisions of K.S.A. 21-3208(2):

“An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.”

The trial court rejected Kleypas’ request and instructed the jury as follows in accordance with PIK Crim. 3d 54.12-A:

“Voluntary intoxication may be a defense to the charge of Capital Murder, Premeditated First-Degree Murder, Second-Degree Murder, Attempted Rape, and the Aggravated Burglary allegedly occurring on March 30, 1996, where die evidence indicates that such intoxication impaired a defendant’s mental faculties to the extent that he was incapable of forming the necessary intent to kill as required in the Capital Murder, Premeditated First-Degree Murder, and Second-Degree Murder charges; and the necessary intent to commit a theft as required in the Aggravated Burglary charge, and the intent to commit rape as required in the Attempted Rape charge.”

In support of his first argument that the PIK instruction given changed voluntary intoxication to an affirmative defense, Kleypas relies upon our decision in State v. Ludlow, 256 Kan. 139, 883 P.2d 1144 (1994). According to Kleypas, we recognized in Ludlow that PIK Crim. 3d 54.12-A was a significant departure from the statutory language regarding voluntary intoxication in K.S.A. 21-3208(2), thus casting voluntary intoxication as an affirmative defense. This argument misinterprets our holding in Ludlow.

The issue in Ludlow involved the PIK instruction’s omission of “or other state of mind” where K.S.A. 21-3208(2) states that voluntary intoxication may be considered “when a particular intent or other state of mind is a necessary element to constitute a particular crime." Ludlow complained that premeditation was an “other state of mind.” We agreed with Ludlow and held that the district court’s use of PIK Crim. 3d 54.12-A which departed from the statutory *945 language by omitting the phrase “or other state of mind” was error where the defendant is charged with premeditated murder. 256 Kan. at 147.

In tracking the change in the PIK instruction to determine when the removal of “or other state of mind” occurred, Ludlow referenced the pattern instruction approved in State v. Beebe, 244 Kan. 48, 60-61, 766 P.2d 158 (1988), noting that “the most obvious change [in the voluntary intoxication instruction] is in the lead-in declaration — voluntary intoxication changes from not being a defense to possibly being a defense.” 256 Kan. at 145. Ludlow did not state that this was error or that the language suggested by the defendant changed voluntary intoxication to an affirmative defense.

In addition to Instruction No. 12 on voluntary intoxication, the trial court instructed the jury in Instruction No. 13 that voluntary intoxication may be a defense to the extent Kleypas was incapable of forming the necessary state of mind of premeditation, following Ludlow. As part of Instruction No. 2, the trial court instructed: “The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced from the evidence that he is guilty.” Instruction No. 8 again placed the burden of proof on the State:

“The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced from the evidence that he is guilty.

“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims made by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant guilty.”

In Ludlow, this court read the voluntary intoxication instruction together with another instruction which stated that the State bore the burden of proving “ ‘the required criminal intent of the defendant’ and that ‘[t]his burden never shifts to the defendant,’ ” and found that the instructions properly advised the jury that “voluntary intoxication may be a defense if the evidence indicates that it rendered Ludlow incapable of forming the necessary intent, that *946 the State had the burden of proving intent, and that Ludlow does not have a burden for showing lack of intent.” 256 Kan. at 150. In the case at hand, the instructions, read together, properly advised the jury that the State bore the burden to prove intent, and the instructions did not reheve the State of this burden or make voluntary intoxication an affirmative defense. We also note that the trial court avoided the major problem in Ludlow by giving a separate instruction on voluntary intoxication specifically referencing “other state of mind” and premeditation. Kleypas’ first contention fails.

Kleypas’ second contention regarding the voluntary intoxication instruction is that the instruction prevented the jury from using the voluntary intoxication evidence unless it found that it alone negated premeditation or intent. He claims that the United States Supreme Court in Martin v. Ohio, 480 U.S. 228, 233-34, 94 L. Ed. 2d 267, 107 S. Ct. 1098 (1987), recognizes that defendants must be permitted to combine different kinds of evidence to negate specific intent for charged crimes. He argues that the instruction given prohibited the jury from considering intoxication for any purpose unless Kleypas established the affirmative defense by a preponderance of evidence. According to Kleypas, because the jury in his case was precluded from considering evidence of voluntary intoxication unless that evidence alone negated specific intent, the instruction ran afoul of both K.S.A. 21-3208 and the Due Process Clause of the United States Constitution.

Martin does not support this contention of Kleypas. The defendant in Martin was charged with aggravated murder. Ohio law placed the burden of proving the elements of a criminal offense upon the prosecution but placed on the accused the burden of proving an affirmative defense by a preponderance of the evidence. Self-defense was an affirmative defense under Ohio law and therefore had to be proved by the defendant. The defendant was convicted and in his appeal to the Supreme Court he claimed that his conviction violated the Due Process Clause because of the burden placed upon him to prove self-defense. The Court disagreed and held that the State did not exceed its authority in defining the crime of murder as purposely causing the death of another with prior *947 calculation or design. It did not seek to shift to Martin the burden of proving any of those elements. The Court noted that it would be quite different if the jury had been instructed that self-defense evidence could not be considered in determining whether there was a reasonable doubt about the State’s case, i.e., that self-defense evidence must be put aside for all purposes unless it satisfied the preponderance standard. The Court held that such an instruction would relieve the State of its burden and plainly run afoul of the mandate in In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970), requiring the State to prove all of the elements of the crime beyond a reasonable doubt. 480 U.S. at 233-34.

In our case, contrary to Kleypas’ assertion, the instruction on voluntary intoxication did not limit the jury’s consideration of Kleypas’ state of intoxication nor did it limit consideration of any other evidence offered as to mental illness, prior drug use, or brain damage in determining whether the State proved the elements of the crime. The instruction only provided the jury with the standard it must consider in evaluating evidence regarding Kleypas’ voluntary intoxication.

We have concluded above that the instructions read as a whole placed the burden of proving all elements of the crimes charged upon the State. As in Martin, the instructions, “read as a whole, . . . are adequate to convey to the jury that all of the evidence, including the evidence going to self-defense, must be considered in deciding whether there was a reasonable doubt about the sufficiency of the State’s proof of the elements of the crime.” 480 U.S. at 234. The instruction given on voluntary intoxication in this case properly and fairly stated the law as applied to the facts. Kleypas was not prevented from presenting evidence regarding other factors bearing upon his ability to form specific intent. The burden of proving all essential elements of the crimes charged never shifted to Kleypas. We conclude that Kleypas’ contention is without merit and the jury could not reasonably have been misled by the court’s instruction on intoxication.

*948 Issue 11. Instruction Regarding State’s Failure to Timely Notify Kleypas of Change in Testimony

This issue involves a statement made by one of the officers while driving Kleypas back to Kansas after Kleypas had waived extradition. As noted in our analysis concerning the admissibility of Kleypas’ confession, during a pretrial suppression hearing, before the taperecording of the conversation was enhanced, both officers believed that the statement “Are we going to have to get out and walk?” was made by Detective Hite. Prior to trial, KBI Agent Williams listened to an enhancement of the audiotape and realized that it was he who had made the statement. The State, however, did not notify the court of this change or notify Kleypas as required by law.

Based upon the State’s failure to do so, the court instructed the jury that it could consider this failure in the following instruction:

“The State’s failure to timely notify the defendant when Agent Tom Williams concluded he was the person who stated on the tape ‘are we going to have to get out and walk?’ may be considered by you in determining what weight to give to his testimony.”

Kleypas requested that the above instruction also refer to the weight the jury could give to Detective Hite’s testimony because Hite had also modified his testimony. The trial court rejected the request, stating that it was Agent Williams who had realized he had made the statement but was not forthcoming with the information, not Hite.

We agree with the trial court. The record demonstrates that while both Agent Williams and Detective Hite after listening to the enhanced taperecording agreed that the recorded statement was that of Agent Williams; Hite did not change his statement at trial. He explained that he believed he had made a similar statement on the trip back to Kansas.

Our standard of review is whether the instruction given without the additional language requested by the defendant properly and fairly stated the law as applied to the facts of the case and whether it reasonably could have misled the jury. See State v. Carr, 265 Kan. 608, 617, 963 P.2d 421 (1998). We have no hesitancy in con- *949 eluding that the instruction given met the above standard. We emphasize that the court properly placed the duty on the State to notify both the court and Kleypas of a change in testimony. The credibility of both officers was thoroughly explored by Kleypas at trial, and the trial court’s instruction was consistent with the evidence that Agent Williams, not Detective Hite, changed his testimony.

Issue 12. Whether K.S.A. 21-3439(a)(4) Makes a Killing Occurring During an Attempted Rape Subject to the Death Penalty

Kleypas was convicted of capital murder based on the intentional and premeditated killing of the victim in the commission of the crime of attempted rape. He argues, however, that a correct interpretation of K.S.A. 21-3439(a)(4) precludes attempted rape as a predicate for capital murder. We find no merit in his claim.

K.S.A. 21-3439(a)(4) defines the offense of capital murder as:

“Intentional and premeditated killing of the victim of one of the following crimes in the commission of, or subsequent to, such crime: Rape, as defined in K.S.A. 21-3502 and amendments thereto, criminal sodomy, as defined in subsections (a)(2) or (a)(3) of K.S.A. 21-3505 and amendments thereto or aggravated criminal sodomy, as defined in K.S.A. 21-3506 and amendments thereto, or any attempt thereof, as defined in K.S.A. 21-3301 and amendments thereto.” (Emphasis added.)

Kleypas’ argument is that the statutory language “or any attempt thereof’ refers to aggravated criminal sodomy and not an attempted rape or criminal sodomy.

The interpretation of a statute is a question of law, and this court’s review is unlimited. State v. Lewis, 263 Kan. 843, 847, 953 P.2d 1016 (1998). The fundamental rule of statutory construction guiding this court’s determination is that the intent of the legislature governs when that intent can be ascertained from the statute. When a statute is plain and unambiguous, we must give it the effect intended by the legislature rather than determine what the law should or should not be. State v. Taylor, 262 Kan. 471, 478, 939 P.2d 904 (1997). The plain and unambiguous language of the statute demonstrates that “or any attempt thereof’ relates to all crimes specified in the same sentence.

*950 Nevertheless, Kleypas moves beyond the plain language of the statute, suggesting that ambiguity arises by reason of testimony given by the attorney general during the adoption of the death penalty in Kansas. Kleypas points out that the Virginia death penalty statute which provided a general pattern for Kansas uses the following language: “The willful, deliberate, and premeditated killing of any person in the commission of, or subsequent to, rape or attempted rape, forcible sodomy or attempted forcible sodomy or object sexual penetration.” Va. Code Ann. § 18.2-31(5) (Michie 1996).

Kleypas argues that when the Kansas Legislature passed the death penalty statute, it modified an earlier proposed version of the statute that would have explicitly made it clear that a killing during attempted rape was a capital offense, as in the Virginia model. In doing so, Kleypas contends, the legislature created an ambiguity in the final version. According to Kleypas, by application of the “last antecedent rule,” the legislature intended that “or any attempt thereof’ modify only the immediately preceding phrase “aggravated criminal sodomy” and not any other crimes mentioned before. See Taylor v. Perdition Minerals Group, Ltd., 244 Kan. 126, 133-34, 766 P.2d 805 (1988) (explaining last antecedent rule). He also invokes the “rule of lenity,” which provides that any reasonable doubt about the meaning of criminal statutes is to be decided in favor of the accused. See State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 (1998).

We need not dwell on the above arguments. The last antecedent rule is merely an aid to construction. It may not be employed to reach a certain result where the language of the statute is plain and unambiguous. See Link, Inc. v. City of Hays, 266 Kan. 648, 654, 972 P.2d 753 (1999). Similarly, while the rule of lenity is the general rule in construing criminal statutes, it too is subordinate to the rule that judicial interpretation must effect legislative design and intent. Vega-Fuentes, 264 Kan. 10, Syl. ¶ 3.

The capital-murder statute in Kansas narrowly defines the class eligible for the death penalty in plain and unambiguous language. To adopt the interpretation advanced by Kleypas would distort die statute, resulting in absurdity. In 1994, when the capital-murder *951 statute became law, rape and aggravated sodomy were considered equally severe as shown by their classification as severity level 2 crimes. In 1996, the offense of rape as described in K.S.A. 21-3502(a)(1) and (a)(2) became a severity level 1 crime. There is no logical reason the legislature would intend the intentional and premeditated killing of the victim during the commission of an attempted aggravated sodomy to be a capital offense but the equally severe and now more severe crime of attempted rape would not be a capital offense. Finally, the failure of our legislature to adopt an earlier version of a proposed law or the wording of the Virginia statute becomes significant only in case of an ambiguous final version. We, therefore, hold that the phrase “or any attempt thereof’ modifies all the offenses contained in K.S.A. 21-3439(a)(4) and, thus, makes the intentional and premeditated killing of the victim during the commission of, or subsequent to, an attempted rape a capital murder.

Issue 13. Prosecutorial Misconduct in the Guilt Phase

Kleypas contends that prosecutorial misconduct during opening and closing statements and the prosecutor’s conduct during trial and in discovery denied him a fair trial. He argues that the conduct was so egregious as to warrant the reversal of his convictions and a new trial.

Prior to a discussion of the specific errors alleged by Kleypas, some general discussion with regard to this court’s handling of prosecutorial misconduct is appropriate. The first preliminary matter to be addressed concerns the necessity of a contemporaneous objection. While many of the allegedly improper remarks made by the State during closing argument were objected to by Kleypas, others were not. Reversible error normally cannot be predicated upon a complaint of misconduct by the prosecutor during closing argument where no contemporaneous objection is lodged. However, if the prosecutor’s statements rise to the level of violating a defendant’s right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection. State v. McCorkendale, 267 Kan. 263, 278, 979 P.2d 1239 (1999).

*952 In addition, K.S.A. 21-4627(b) directs that this court “shall consider the question of sentence as well as any errors asserted in the review and appeal and shall be authorized to notice unassigned errors appearing of record if the ends of justice would be served thereby.” In State v. Collier, 259 Kan. 346, 353, 913 P.2d 597 (1996), we held that the same language in the pre-1994 hard 40 sentencing statute authorized this court to consider a defendant’s claim of prosecutorial misconduct even though he had failed to object to the remarks at trial. See State v. White, 263 Kan. 283, 305-306, 950 P.2d 1316 (1997). Thus, pursuant to K.S.A. 21-4627(b), this court will consider Kleypas’ claims of prosecutorial misconduct whether or not objected to at trial.

An appellate court’s analysis of the effect of a prosecutor’s allegedly improper remarks in closing argument is a two-step process: First, the appellate court must determine whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. Second, the appellate court must determine whether the remarks constituted plain error, that is, whether they were so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial. In order to find that the remarks were not so gross or flagrant, this court must be able to - find that when viewed in light of the record as a whole, the error had little, if any, likelihood of changing the result of the trial. McCorkendale, 267 Kan. at 278-79. Factors relevant in determining whether a new trial should be granted for prosecutorial misconduct include: (1) Whether the misconduct is so gross and flagrant as to deny the accused a fair trial, (2) whether the remarks show ill will on the part of the prosecutor, and (3) whether the evidence against the accused is of such a direct and overwhelming nature that it can be said that the prejudicial remarks of the prosecutor were likely to have little weight in the minds of the jurors. State v. Foster, 259 Kan. 198, 204, 910 P.2d 848 (1996).

In determining whether a prosecutor’s remark was improper, it should be noted:

“It is the duty of a prosecutor in a criminal matter to see that the State’s case is properly presented with earnestness and vigor and to use every legitimate means to bring about a just conviction, but he should always bear in mind that he is an *953 officer of the court and, as such, occupies a quasi-judicial position whose sanctions and traditions he should preserve. [Citation omitted.]” State v. Ruff, 252 Kan. 625, 634, 847 P.2d 1258 (1993).

A prosecutor has a duty to refrain from making improper, misleading, inflammatory, or irrelevant statements to the jury. See Berger v. United States, 295 U.S. 78, 84-88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935). This duty is heightened in capital cases. See Lesko v. Lehman, 925 F.2d 1527, 1541 (3d Cir. 1991). See also California v. Ramos, 463 U.S. 992, 998-99, 77 L. Ed. 2d 1171, 103 S. Ct. 3446 (1983) (stating that “the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination”).

With these standards securely in mind, we turn to the specific arguments raised by Kleypas. Kleypas alleges that the State improperly attempted to hinder discovery and identifies comments of the prosecutor during opening statement, closing argument, and at trial which he claims were improper and prejudicial.

A. Hindering Defense Discovery

Kleypas argues the State’s actions in persistently hindering defense discovery must be considered in addressing the pattern of misconduct and bad faith on the part of the State. He incorporates his arguments on the State’s failure to correct KBI Agent Williams’ testimony regarding the “Are we going to have to get out and walk?” statement and the failure to inform the FBI of the trial court’s order to not consume all DNA material needlessly. He adds to this another alleged failure on the part of the State to timely disclose evidence relating to the “officer at the elbow” question.

During the car ride from Springfield to Girard, Kleypas was asked if he would have committed the crime if a police officer had been present. Kleypas replied he thought it would not have mattered “when he gets like that.” Kleypas appears to suggest there was some sort of purposeful omission of this statement in Agent Williams’ and Detective Hite’s reports.

The events surrounding this question, Agent Williams’ and Detective Hite’s failures to report the comment, and how the information came to light occurred as follows: On April 5, 1996, 3 days *954 after the car ride in which the comment was made, defense counsel filed a motion to preserve police communications and request for discovery. The trial court granted the motion to preserve communications. Approximately 1 year later, on March 5, 1997, defense counsel filed a motion to call prosecutor Barry Disney as a witness to ask him about a comment that he made in a taped telephone conversation to a member of the attorney general’s office. During the conversation, Disney had relayed Kleypas’ answer to the “officer at the elbow” question and stated that neither Agent Williams nor Detective Hite had provided this information in his report or acknowledged such a statement in his testimony. In its response to this motion, the State noted that the tape of the telephone conversation had been listened to by a defense investigator on April 29, 1996, but defense counsel had never questioned Hite as to the statement. At a hearing on the motion, the defense counsel examined Hite and asked if Hite recalled asking Kleypas if he would have committed the crime had an officer been standing next to him. Hite stated that Kleypas “didn’t really give me a yes or no answer.” Hite also indicated that Disney requested that he ask the question. In response to a question, Hite agreed that he had not included this question and answer in his report. Agent Williams also agreed, in response to a defense question, that he had not written down this particular question and answer.

Kleypas admits this evidence became available to the defense well before trial but claims the State’s failure to disclose this exculpatory statement under both K.S.A. 22-3212(a)(4) and Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), demonstrates a bad-faith attempt to obstruct the defense. According to Kleypas, as the State does not contest that the statement was exculpatory in nature, the State’s duty to disclose was triggered. Furthermore, Kleypas claims Hite’s failure to include Kleypas’ response to this question could not have been inadvertent given the fact that the matter was deemed so important that he was specifically directed by Disney to ask Kleypas the question.

Kleypas’ contention that nondisclosure of the statement was purposeful is wholly without support. The fact that Disney may have asked Detective Hite to ask Kleypas this question does not suggest *955 that Hite gave it any significance nor should he have. There is no evidence the State purposefully hindered discovery by failing to notify the defense that Agent Williams realized he had made the, “Are we going to have to get out and walk?” statement, by failing to inform the FBI to conserve DNA material if at all possible, or by failing to report Kleypas’ response to the question of whether he would have committed the crime had an officer been present at the scene. While it is clear that the State should have notified the defense counsel of these statements and should have informed the FBI of the court’s ruling regarding DNA testing, the misconduct here was not so gross and flagrant as to deny Kleypas a fair trial.

B. Opening Statements

The State initiated opening statements by saying:

“If it please the Court, opposing counsel and ladies and gentlemen of the jury. [C.W.] was a bright, lively young woman just twenty-one years old. In March of 1996 she was a junior at Pittsburg State University in Pittsburg, Kansas. She was engaged to be married to [M.F.]. She was interested in tennis, in fashion merchandising, her major, and helping other people and in planning her wedding.”

The defense counsel approached the bench to object, stating:

“Your Honor, all of this is irrelevant. [C.W.’s] activities ... are irrelevant to the jury. It has nothing to do with the evidence. He’s making an argument at this time which is not the purpose of opening statement and none of that is relevant, none of it is going to be put on as evidence, there is no purpose for it at all so I’m objecting to that whole line of argument because that is what it is. He’s not going to be allowed to put on evidence that says she was a wonderful person, she was a buoyant person, she played tennis, she played this or that. All of that is irrelevant.”

The State responded:

“Your Honor, we sire not going to dwell on that but we have a right to at least show who she was. I’ve got just a couple of questions about what she was interested in, what sort of things did she do and we aren’t dwelling on that, it is not the central part of the case but it is something we will produce evidence on and it is perfectly proper.”

The trial court overruled the objection but ordered the State to “move along.”

*956 Prior to trial, Kleypas had filed a motion to bar victim impact statements during the penalty phase of the trial. The motion sought to exclude, among other things, “any evidence regarding the deceased’s life plans at the time of her death.” The trial court granted the motion.

Kleypas contends that since the juiy was instructed during the penalty phase that it could consider all evidence presented during the guilt phase, the State was prohibited from presenting any victim impact evidence at any point in the bifurcated proceedings. Kleypas contends the State’s opening comments demonstrate bad faith. Further, even if this court concludes this is not error in and of itself, Kleypas argues, this court should consider it as part of the overall pattern of prosecutorial misconduct which he claims “permeated this case.”

Kleypas contends the State was bound by its acquiescence in the motion to bar victim impact evidence during the penalty phase to not argue such evidence during the guilt phase. The basis of this argument apparently is the prejudicial impact since the jury was the same for both phases, i.e., what is improper in one phase must necessarily be improper in the other. This same concept, except in reverse, was discussed in Justice Souter’s concurring opinion in Payne v. Tennessee, 501 U.S. 808, 841, 115 L. Ed. 2d 720, 111 S. Ct. 2597 (1991). Payne reversed the decisions in Booth v. Maryland, 482 U.S. 496, 96 L. Ed. 2d 440, 107 St. Ct. 2529 (1987), and South Carolina v. Gathers, 490 U.S. 805, 104 L. Ed. 2d 876, 109 S. Ct. 2207 (1989), which had held the Eighth Amendment to the United States Constitution bars the admission of victim impact evidence during the penalty phase of a capital trial. Payne held that such evidence was not per se precluded by the Eighth Amendment. 501 U.S. at 825, 827. “In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.” 501 U.S. at 825. In its analysis, the United States Supreme Court noted that in many cases evidence relating to the victim is already before the jury because of its relevance at the guilt phase of the trial. 501 U.S. at 823. Justice Souter commented:

*957 “Booth thus raises a dilemma with very practical consequences. If we were to require the rules of guilt-phase evidence to be changed to guarantee the full effect of Booth’s promise to exclude consideration of specific facts unknown to the defendant and thus supposedly without significance in morally evaluating his decision to kill, we would seriously reduce the comprehensibility of most trials by depriving jurors of those details of context that allow them to understand what is being described. If, on the other hand, we are to leave the rules of trial evidence alone, Booth’s objective will not be attained without requiring a separate sentencing jury to be empaneled. This would be a major imposition on the States, however, and I suppose that no one would seriously consider adding such a further requirement.” 501 U.S. at 841 (Souter, J., concurring).

Imposing constraints on the State in the guilt phase because it agreed to a motion concerning the penalty phase would present an unexpected trap for the State. Though the State may have acquiesced in Kleypas’ motion to bar victim impact evidence during the penalty phase, it did not do so for the guilt phase of the trial. It should be noted that Kleypas does not argue that his motion in limine to prohibit improper arguments during first and second stage trial prohibited the prosecutor’s opening statement here. The trial court did not sustain this motion; instead, the court stated it would consider improper arguments on a case-by-case basis.

“Opening statements by counsel in criminal prosecutions are not evidence. They are given for the purposes of assisting the jury in understanding what each side expects its evidence at trial will establish and to advise the jury what questions will be presented for its decision. The tendency is to permit a prosecuting and defense attorney reasonable latitude in stating to the jury the facts they propose to prove.” McCorkendale, 267 Kan. 263, Syl. ¶ 4.

The prosecutor’s opening statements were within the reasonable latitude in stating facts or reasonable inferences from facts which the State would prove during the trial. It would be unreasonable to expect the State to refer to the victim in any case without some qualifiers concerning who this individual was in life. The absence of any characteristics of the victim would be artificial. There necessarily must be some reference to who the victim was and his or her relevance in the context of the time and place of the homicide. The prosecutor’s comments here were not error.

C. Conduct During Trial

During defense counsel Wood’s cross-examination of KBI Agent Williams concerning a memorandum on interrogation techniques, the following exchange occurred:

*958 “Q. And you’ve already testified that Stu Hite read Miranda rights to Mr. Kleypas? “A. Yes, sir.

“Q. Okay. Then it goes on —

“Mr. BORK [Prosecutor]: Your Honor, I’m going to object to this line of questioning because this gets into dealing with whether it is a free and voluntary confession which the Court has already ruled upon.

“Mr. WOOD: Judge, I object to that statement. That is improper under Crane v. Kentucky.’’ (Emphasis added.)

Following the objections, a heated argument occurred at the bench. Wood requested a mistrial, which the court took under advisement. The trial court agreed with prosecutor Bork that the defense counsel could not discuss the legal requirements concerning admissibility of a confession but agreed with Wood that he could raise questions concerning the circumstances surrounding the confession. The trial court instructed the jury: “Ladies and gentlemen of the jury, you are to disregard Mr. Bork’s comments in his last objection. You as the jury have the right to consider all the surrounding circumstances of the defendant’s statement and you may give what weight you desire to those surrounding circumstances.”

Kleypas correctly argues that his counsel had a right to litigate issues surrounding the voluntariness and reliability of Kleypas’ confession under Crane v. Kentucky, 476 U.S. 683, 90 L. Ed. 2d 636, 106 S. Ct. 2142 (1986), and K.S.A. 22-3215(5). He further argues that it is inconceivable that the prosecution was unaware of the law and that this incident must be considered as evidence of the prosecutor’s ill will in addressing the overall pattern of misconduct.

The trial court in addressing the motion for mistrial, stated:

“So we start with the premise the defendant is completely entitled to present the surrounding circumstances of the confession to the jury. That is an undeniable. I told you that when you came up to the bench for the side bar, . . . that is what die Court allowed, I didn’t restrict the defendant in giving this information to the jury, the defendant was entitled to fully explore the surrounding circumstances that attend the statement in issue. Indeed the Court instructed the jury to that very effect. Now, I don’t think the jury has been prevented from considering the surrounding circumstances. They have been advised that they can give the appropriate weight to the surrounding circumstances that they deem appropriate. I believe they will and I believe they can do this. I believe that Mr. Bork’s *959 comments did not convey to the jury that they are precluded from doing this. So the request for mistrial will be denied.”

Our review of the heated exchange between counsel and the record involving this claim does not support a finding of ill will on the part of the prosecutor. While the objection by the prosecutor may have been improper, defense counsel was able to fully litigate the issue of the weight and credibility the jury should give Kleypas’ confession and the jurors were clearly informed that it was within their province as fact finders to make that determination. Finally, the jury was instructed by the court to disregard the comments of the prosecutor. Under these circumstances, no prejudicial error occurred.

D. Closing Argument

Kleypas contends that during closing arguments, prosecutor Bork launched a personal attack on defense counsel Wood, referred to matters not in evidence, and claimed defense counsel thought Kleypas was guilty of some offense. Kleypas argues that at least seven incidents of misconduct occurred during closing arguments and that this constituted a denial of his right to a fair trial.

1. Upon completion of the State’s direct examination of Robin, the roommate of the victim, defense counsel asked for the police report containing her statement. Twice the prosecution denied having the report. At the beginning of the cross-examination, however, the witness stated that she had discussed the report with prosecutors. At this time, the prosecutor found the report and gave it to defense counsel, who then completed his cross-examination.

Outside the presence of the jury, defense counsel asked the court that it be made known that the prosecution had misrepresented the State when it denied having the report. The trial court refused, noting it saw no purposeful concealment considering the amount of documents in the case.

In closing argument, defense counsel commented upon the witness’ revelation that she had discussed the report with the prosecutors and stated “only at this point do you see the hand going down to the briefcase.” The State objected, stating: “That is not in evidence. That is Mr. Wood’s fantasy.” The trial court sustained *960 the objection. Thereafter, Wood continued his argument without objection by stating: “You decide what you saw. I guess Tve fantasized a materialization of that report into the hands of my co-counsel for the very first time here in the courtroom. I guess you all fantasized that too.”

Kleypas argues that the prosecutor’s use of the word “fantasy” implied that Wood was lying and attempting to fabricate a claim of misconduct. According to Kleypas, the trial court gave credence to this attack and impaired Wood’s credibility in front of the jury by sustaining the objection. In support of this contention, Kleypas cites State v. Lockhart, 24 Kan. App. 2d 488, 947 P.2d 461, rev. denied 263 Kan. 889 (1997). In Lockhart, the Court of Appeals found that prosecutorial misconduct which included calling defense counsel a liar necessitated a new trial. 24 Kan. App. 2d at 491-92.

In the case at hand, the prosecutor’s use of the word “fantasy” was in response to the argument advanced by Kleypas that the State purposefully concealed the police report until that concealment was discovered. Defense counsel also used the same term arguing effectively to the jury: “I guess you all fantasized that too.” Moreover, the entire transaction between the parties was played out before the jury. The circumstances in Lockhart bear no similarity to this case. Under the circumstances of this case, we conclude that prosecutorial misconduct did not occur.

2. The second alleged attack occurred during the State’s rebuttal when prosecutor Bork argued during closing that he was used to a defense attorney’s accusations that he was hiding the facts or doing something unethical because “that is an old tactic.” Wood objected, stating, “I object, Your Honor, I have never accused Mr. Bork of that. It is not an old tactic with me. I object to that.” The trial judge stated, “I don’t believe he was referencing you.” Bork continued: *961 Woods objected: “Judge, again how Mr. Bork feels about me personally is improper. I ask that the jury be admonished that doesn’t matter.” The trial court sustained the objection and told the jury to disregard Bork’s comment.

*960 “Doesn’t want to talk about the facts of this case, would rather talk about counsel and I don’t blame him for that. It doesn’t particularly endear him to me, it doesn’t make me like him a lot but I don’t blame him for that. Because there is not a lot of case for them to talk about here.”

*961 Kleypas complains that by overruling Wood’s objection to the “old tactic” comment, the trial court implied wrongful conduct and gave credence to Bork’s implication that defense counsel was attempting to mislead the jury. Kleypas admits the proceedings were “highly acrimonious”; however, there was no justification for expressions of personal feelings.

While we acknowledge that it was error for the prosecutor to express his personal feelings regarding defense counsel or what defense counsel may have thought of him, we note that the trial court sustained the objection and admonished the jury to disregard the statements. Even without this, we conclude that the entire exchange does not amount to misconduct so gross and flagrant as to deny Kleypas a fair trial.

3. In the third instance of alleged prosecutorial misconduct during closing arguments, prosecutor Bork stated:

“He made sure she was alone and he shaved his pubic hairs. Remember Dr. Mitchell and Dave Schroeder talking about trace evidence on the body and how you might be able to determine who had left the hairs there. The defendant couldn’t have left any pubic hairs, his pubic hairs were shaved in preparation for this.”

Defense counsel Moots objected that this was a misstatement when there was no evidence as to when Kleypas shaved his pubic hair. The trial court overruled the objection. Bork then stated: “What other purpose could the defendant have had in mind.”

Kleypas contends there was no evidence of any subjective reason for removal of his pubic hair, and no evidence whether he did so on a regular basis. He suggests that when the trial court overruled the defense counsel’s objection it gave the jury the impression that Bork’s statement was accurate and added support to the State’s theory of premeditation.

The comments of the prosecutor were not error. In closing argument, the prosecutor may draw reasonable inferences from the evidence but may not comment upon facts outside the evidence. *962 State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 (2000); State v. McCray, 267 Kan. 339, 351, 979 P.2d 134 (1999). Based on the evidence in the record, it was reasonable to infer that Kleypas shaved his pubic hair in preparation for a sexual assault on C.W.

4. Kleypas next objects to what he called the State’s mischaracterization of the defense counsel’s letter to Dr. J.D. Dix, a pathologist and medical examiner from Missouri. Bork stated: “When you discuss Dr. Dix’s testimony, remember the reason why he was here. The defense wrote him and said we need someone to challenge Dr. Mitchell’s testimony about penetration.” Kleypas objected on the grounds that this was a mischaracterization of the letter, but the objection was overruled. Kleypas contends what was actually stated in the letter was: “What we are interested in is any way to challenge Dr. Mitchell’s conclusion regarding the anal sodomy.” Kleypas was acquitted of aggravated criminal sodomy. Nonetheless, Kleypas suggests the “attack” was pertinent in addressing the pattern of bad faith demonstrated by the State.

Dr. Dix admitted on the stand that the defense “wanted a way to challenge Dr. Mitchell’s testimony.” The comment complained of was fair interpretation of the letter and unquestionably did not influence or prejudice the jury because Kleypas was acquitted of aggravated criminal sodomy.

5. Kleypas argues that further instances of ill will were shown when the State, in closing argument, violated the trial court’s order in limine to avoid reference to C.W.’s personal characteristics. Prosecutor Bork stated: “[C.W.] was a young woman twenty years old. She had a wonderful life.” While acknowledging that the trial court sustained Kleypas’ objection and told the jury to disregard the comment, Kleypas suggests this was a continuing disregard for his right to a fair trial.

We doubt whether the statement “She had a wonderful life” violated the trial court’s order in limine. While the trial court’s order related to the victim’s personal characteristics, the phrase complained of is so general and ambiguous that it can hardly be said to be a reference to C.W.’s personal characteristics or a violation of the motion in hmine. The fact that she was young and 20 years old was in the evidence and did not provide the jury with any *963 information it did not already have. Even if it can be considered a violation, the statement was so brief and limited as to be of no prejudicial effect and hardly stands as an example of ill will on the part of the State.

6. Another example of ill will occurred, according to Kleypas, when prosecutor Bork was discussing KBI Agent Williams’ realization that it was his voice on the audiotape making the statement: “Are we going to have to get out and walk?” Bork said: “If there is any fault in the fact that this information didn’t get to the Judge, then it is my fault.” The trial court sustained an objection but refused to give a curative instruction. Kleypas argues Bork’s attempt to place tiie blame solely on himself was improper because it implicitly informed the jury it could disregard Instruction No. 10, which notified the jury it could consider the failure to notify in determining what weight to give Agent Williams’ testimony, and also by implicitly vouching for Agent Williams’ credibility.

The alleged reference to Instruction No. 10 occurred when Bork stated: “As the Judge told you, the state should have brought that to the attention of Court and opposing counsel, I didn’t do that.” We conclude that the statement was not prosecutorial misconduct. While the statement could be viewed as an attempt to deflect fault from Agent Williams, Instruction No. 10 as worded did not place the responsibility on either Bork or Agent Williams but rather on the State.

7. Finally, Kleypas complains of the State’s comments toward the end of closing argument when Bork said: “Opposing counsel has talked about the life or death of his client. Now is not the time to determine that. Now your duty is to determine whether or not his client is guilty. And he says that his client is guilty of something. It is just not capital murder.” The trial court sustained defense counsel’s objection. The trial court was not asked to admonish the jury, nor did it do so sua sponte.

After searching the record, we could find only two instances where defense counsel Wood made reference to lesser offenses. During his explanation of the lesser included murder instructions to the jury, Wood stated:

*964 “And I’m going to tell you right now, I’m asking you — I'm asking you to — I’m telling you it is the right thing to do under die law, under the facts, under the situation to not give Mr. Kleypas capital murder, to not convict him of capital murder. Beyond that, it is up to your wisdom. It is up to your wisdom based upon what you have heard and seen what to do.

“I’m going to trust in you. We are going to trust in you to look at that beyond that and do what is appropriate.”

In his same argument at a later point, Wood stated: “[Bjut you know enough at this point, you know enough that you can’t convict Mr. Kleypas of capital murder. The rest is in your hands. That it is all in your hands.”

It is apparent that the defense counsel’s tactic in closing argument was to urge the jury not to convict Kleypas of capital murder. Although Wood’s statements could be perceived as reflecting an opinion that Kleypas was guilty of some lesser crime of murder, Bork’s reference to Wood’s opinion, whether express or inferred, was improper.

In McCray, 267 Kan. at 347, we held that error is committed when the prosecutor injects his or her personal opinion. Moreover, “[cjourts generally, although not uniformly, have found that it is improper for a prosecutor in a criminal jury trial to speculate in oral argument about the supposed beliefs of the defendant’s attorney with respect to defendant’s guilt or innocence.” See State v. Carpenter, 5 Kan. App. 2d 214, 219, 613 P.2d 966 (1980). In this case, we conclude that the comments of the prosecutor were error.

The remaining question is whether tire comments denied Kleypas a fair trial. As noted in the beginning of our discussion concerning prosecutorial misconduct, our standard of review is well established:

“In determining that a prosecutor s improper remarks made in closing argument are not so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial, the reviewing court must be able to find that when viewed in light of the record as a whole, the error had little, if any, likelihood of changing the result of the trial. This is a harmless error analysis. The court must be able to declare beyond a reasonable doubt that the error was harmless.” State v. McCorkendale, 267 Kan. 263, Syl. ¶ 8, 979 P.2d 1239 (1999).

We conclude that the remarks complained of were not so gross and flagrant as to deny a fair trial. The evidence of guilt was of *965 such an overwhelming nature that there is little possibility the prosecutor s comments were given any weight in the jurors’ minds. Thus, we are able to conclude beyond a reasonable doubt that error was harmless.

Issue 14. jury Misconduct

Following the penalty phase of trial, Kleypas filed a motion for recall of the jury, requesting a hearing on allegations of jury misconduct and a new trial. The motion was accompanied by affidavits from five jurors and the affidavit of Gaye Nease, an investigator with the Death Penalty Defense Unit, regarding her interviews with the jurors. The State responded with affidavits from eight jurors.

Kleypas alleges six instances of jury misconduct occurring during the guilt and penalty phases:

(1) Juror Garrison, a police officer, improperly consulted a Kansas Criminal Code and Procedure Handbook during deliberations and read from it to the other jurors.

(2) Juror Mawhiney quoted the Bible during the penalty phase.

(3) Jurors disregarded the court’s instruction and considered Kleypas’ failure to testify during the penalty phase.

(4) Jurors speculated about the length of time Kleypas would serve in prison if he were not sentenced to death.

(5) Juror Seawood refused to consider mitigating evidence after evidence of Kleypas’ prior homicide conviction was introduced.

(6) Juror Garrison advised the other jurors that a vote for death did not mean Kleypas would be put to death.

A. Consulting the Kansas Criminal Code

In a memorandum opinion, the trial court ruled that except for the claim concerning juror Garrison’s consultation of a statute handbook, the allegations referenced the personal reasons the individual jurors relied on as to the verdict and, as such, improperly delved into their mental processes. The trial court found, however, the “handbook” did not involve mental processes and the trial court *966 ruled this was a proper area of inquiry. Accordingly, the trial court allowed the recall of juror Garrison and held a hearing on the matter on February 20, 1998.

Juror Swygert’s affidavit stated:

“During deliberation a question came up regarding the definition of intent. The police officer advised that the court’s definition was wrong and different from the definition that the police department had given her. She took a book out of her purse and read the definition out loud. She stated that the court was making up its own rules and that she did not wish to be a part of it.”

Juror Garrison, the police officer, stated in her affidavit:

“I thought that an element had been left out of the first degree murder instruction. I had the Kansas Criminal Code and Procedure Handbook put out by the Kansas Peace Officers Association with me. I looked at the definition of first degree murder and may have read it to the jury. Because of my concerns we asked the question about the elements. When the Judge told us that the instructions were correct I based my decision on the written instructions that were given to us."

At the recall hearing, juror Garrison testified that she consulted a Kansas State Statute Code book concerning the various degrees of murder during the guilt-phase deliberations. Garrison kept the handbook in her purse. She could not remember whether she consulted any other portions but specifically denied reading anything regarding intent or advising any other jurors on a definition of intent. Garrison also did not remember if she read the definitions of first- and second-degree murder to the other jury members. As a result of reading her handbook, Garrison asked the trial court a question. The trial court’s response clarified any questions she had.

Garrison’s question to the court read:

“As a police officer, I know one element of premeditated 1st degree murder was left out of the jury instructions. This element I believe is that the murder happened during the commission of another violent felony. I realize I must only rely on the instructions and not my personal knowledge. On the other hand, I can’t erase this knowledge & make a decision. I think I should be excused & an alternate take my place.”

The trial court responded: “You are instructed that the jury instructions correcdy state the elements of the crime charged and that you are to follow said instructions. You are instructed to review *967 jury instructions #17 and #18 as they correctly state the elements of Premeditated First Degree Murder and Felony Murder.”

After Garrison testified, the trial court noted that the handbook, with a minor irrelevant exception, correctly stated the law regarding first- and second-degree murder and voluntary manslaughter. The trial court concluded that the introduction of this extrinsic material was juror misconduct. However, relying mainly on this court’s decision in State v. Goseland, 256 Kan. 729, 887 P.2d 1109 (1994), and the Court of Appeals’ decision in State v. Duncan, 3 Kan. App. 2d 271, 593 P.2d 427 (1979), the court concluded the handbook did not introduce material issues of fact or personal knowledge of extraneous facts and, therefore, there was no showing that Kleypas’ rights were substantially prejudiced. The trial court denied Kleypas’ motion for new trial based on juror misconduct.

Kleypas advances two arguments. First, he argues that the trial court should have conducted further inquiry where the affidavits submitted contradicted a juror’s testimony during the hearing. Kleypas objected to the limited “scope” of the recall hearing, pointing out the apparent conflict between Garrison’s testimony denying that she read the definition of intent from her handbook and the affidavits of juror Healy and juror Swygert. He cites the language found in Saucedo v. Winger, 252 Kan. 718, 850 P.2d 908 (1993): “We have found it advisable to permit inquiry into a juror’s misconduct which comes to the attention of other members of the panel and may be verified or denied,” and a subsequent statement: ‘Where a juror’s misconduct relates to a material issue, the only way for a trial court to determine if the misconduct improperly influenced the jury’s verdict is to recall the jury and inquire.” 252 Kan. at 729, 732.

The two statutes bearing on the issue are K.S.A. 60-441 and K.S.A. 60-444, which provide:

“Upon an inquiry as to the validity of a verdict or an indictment no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or indictment or concerning the mental processes by which it was determined.” K.S.A. 60-441.

*968 “This article shall not be construed to a exempt a juror from testifying as a witness to conditions or occurrences either within or outside of the jury room having a material hearing on the validity of the verdict or the indictment, except as expressly limited by K.S.A. 60-441.” K.S.A. 60-444(a).

The inquiry which was proper under K.S.A. 60-444(a) was whether Garrison committed misconduct by reading the definition of intent from her handbook and whether she read the definition to the other jurors, but not what effect the misconduct might have had on the thought processes of the jurors. In Saucedo, where this court did find the trial court abused its discretion by failing to recall the jury, none of the jurors was recalled or questioned further. Here, the trial court did recall juror Garrison. Garrison was examined and cross-examined by the parties.

The granting of a new trial or recalling the jury to answer for misconduct is within the sound discretion of the trial court. K.S.A. 60-259. See Saucedo, 252 Kan. at 729; State v. Macomber, 244 Kan. 396, 407, 769 P.2d 621, cert. denied 493 U.S. 842 (1989). The test of the trial court’s abuse of discretion is whether no reasonable person would agree with the trial court. If any reasonable person would agree, an appellate court will not disturb the trial court’s decision. Goseland, 256 Kan. at 735.

Intent was a material issue at trial. The issue here is whether the trial court abused its discretion by limiting the recall of jurors to Garrison. It is difficult to conceive what purpose further testimony from the other jurors would provide. Even if the affidavits of Swygert and Nease are accepted as true, there is no allegation that the definition of intent contained in the handbook was incorrect. Further, after Garrison’s misconduct, the jury asked for clarification from the court. The court directed the jury to the proper instructions which correctly stated the law. Under the circumstances, the trial judge’s decision that a recall of jurors other than Garrison was unnecessary was not a decision with which no reasonable person could agree. Kleypas has failed to show that the trial court abused its discretion in limiting the scope of the recall or denying the motion for a new trial on the basis of Garrison’s actions.

B. furor Mawhiney’s Biblical Quotation

Kleypas argues Garrison’s affidavit admits that another juror “quoted the Bible to her.” Kleypas states that though it is not clear *969 what specific passage was discussed, it is clear that the Bible was improperly considered in the penalty phase. Accordingly, he argues the death penalty must be set aside or, at the minimum, a recall of the jury ordered for further inquiry.

Garrison s affidavit stated in relevant part: “I do remember one lady quoting a Bible passage to me, but this did not play a big part in my decision.” No other juror affidavit mentioned this occurrence. Gaye Nease’s affidavit stated, in relevant part:

“When I interviewed Juror Garrison, she advised that she was having difficulty deciding to vote for death because of her religious beliefs. In response to her making statements about this, Juror Mawhiney quoted a passage from the Bible to her. The quote had the effect of removing her religious concerns about imposing the death penalty and allowed her to proceed to vote for the death penalty.”

The trial court did not refer to this specific incident in its memorandum opinion. Instead, the court concluded that except for Garrison’s consulting her handbook, all other allegations of misconduct delved into the mental processes of the jury. The State’s response to this allegation of juror misconduct and the remaining allegations is that the trial court correctly found the affidavits delved into mental processes and, thus, were inadmissible. This court may consider the fact that Mawhiney quoted a biblical passage. See K.S.A. 60-441 and 60-444.

In the cases Kleypas cites, a Bible was present in the juiy room. The court in Jones v. Kemp, 706 F. Supp. 1534, 1560 (N.D. Ga. 1989), held it was constitutional error for the trial court to have given permission for the jury to take a Bible into the jury room at the jurors’ request. Key in its decision was the implied court approval of the jury’s reference to extra judicial authority though the record was silent on whether the Bible was read or merely present in the room. In dicta, the court stated it “in no way means to suggest that jurors cannot rely on their personal faith and deeply-held beliefs when facing the awesome decision of whether to impose the sentence of death on a fellow citizen.” 706 F. Supp. at 1560.

In State v. Harrington, 627 S.W.2d 345, 350 (Tenn. 1981), the Tennessee Supreme Court vacated the defendant’s death sentence *970 where a juror was excluded because of the juror’s opposition to the death penalty. The court also noted:

“[D]uring deliberations in the sentencing phase of the trial, the jury foreman buttressed his argument for imposition of die death penalty by reading to the jury selected biblical passages. His action, of course, was error which would have required a new sentencing hearing absent the error in excluding jurors for cause in violation of the Witherspoon standard.” (Emphasis added.) 627 S.W.2d at 350.

Though not determining whether grounds for reversal standing alone, the Kentucky Supreme Court noted it was error for jurors to take Bibles into the jury room with them in Grooms v. Com., 756 S.W.2d 131, 142 (Ky. 1988). The Chief Justice, in a concurring and dissenting opinion, would have found the use of the Bible an additional ground for reversal. Furthermore, the Chief Justice found it “alarming” that the uncontested affidavit not only confirmed the existence and use of the Bible during deliberations but that a particular passage played a “major role” in the jury’s decision to vote for the death sentence. The Chief Justice stated:

“What the Bible says about the appropriateness of a death penalty in a particular case is not a legitimate concern of a penalty phase jury. ‘The law specifies when the death penalty is appropriate, and neither the prosecutor nor the defense counsel should be permitted to adduce evidence as to how [a capital] case should be decided on religious grounds.’ Ice v. Commonwealth, Ky., 667 S.W.2d 671, 676 (1984). If evidence of biblical references to capital punishment is not competent during the penalty phase of a capital trial, it is axiomatic that a jury may not independently consult the biblical scriptures for guidance in reaching its life and death decision.” 756 S.W.2d at 145. (Chief Justice Stephens, concurring and dissenting).

All we know from the affidavit here is that juror Mawhiney quoted, not read, a biblical passage to juror Garrison, but it did not play a major role in her decision. The trial court did not abuse its discretion by not ordering a recall or inquiry into this matter.

C. furors Considering Kleypas’ Failure to Testify

Kleypas argues the trial court erred in failing to recall the jury to inquire into affidavits stating that the jurors considered Kleypas’ failure to testify despite jury instructions in both phases directing the jury to not consider this fact; to inquire into juror speculation regarding alternate sentencing dispositions in the event a death *971 sentence was not imposed; and one juror’s affidavit stating that she did not consider mitigating evidence after she was informed of Kleypas’ prior homicide conviction. The trial court declined to recall jurors on any of these allegations, finding the claims improperly delved into the mental processes of the jury.

Kleypas acknowledges that in State v. Myers, 215 Kan. 600, 602-03S, 527 P.2d 1053 (1974), we ruled a jury verdict may not be impeached by evidence the jury considered the defendant’s failure to testify. Kleypas complains this holding leaves a defendant no recourse despite flagrant disregard of a court’s instruction and furthermore is inconsistent with later decisions, citing: City of Ottawa v. Heathman, 236 Kan. 417, 424, 690 P.2d 1375 (1984); Verren v. City of Pittsburg, 227 Kan. 259, 607 P.2d 36 (1980); State v. Wainwright, 18 Kan. App. 2d 449, 856 P.2d 163 (1993); and Johnson v. Haupt, 5 Kan. App. 2d 682, 623 P.2d 537 (1981). Kleypas suggests that to the extent even one juror voted for the death penalty because of his failure to testify, he was denied a right to a fair and impartial trial.

When addressing this specific allegation of juror misconduct, the trial court relied on State v. Mitchell, 234 Kan. 185, 672 P.2d 1 (1983), which followed the ruling in Myers. Mitchell found allegations that a juror considered a defendant’s failure to testify were prohibited by K.S.A. 60-441. 234 Kan. at 191. The trial court further found the affidavits failed to demonstrate a conscious conspiracy on the part of the jury to disregard the instructions following Wainwright, 18 Kan. App. 2d at 453.

In Myers, this court cited the long-held rule: “ ‘A juror cannot be heard to impeach his verdict by saying that in the deliberation he or any other member of the jury took into consideration the matter of the defendant having failed to testify in his own behalf when the jury was instructed not to do so.’ [Citation omitted.]” 215 Kan. at 602. This is in essence what is codified in K.S.A. 60-441. Under similar facts, Mitchell relied on Myers in finding no error when the trial court ruled a juror affidavit was not admissible as delving into the mind of the juror. 234 Kan. at 190-91.

In City of Ottawa, this court discussed when it was proper to grant a motion for new trial based on evidence the jury has not *972 followed the court’s instructions. City of Ottawa acknowledged the limitations of K.S.A. 60-441 and 60-444 and held:

“Where under all the facts and circumstances it is disclosed that the jury was confused in making findings and in awarding damages, or where a jury verdict manifests a disregard for the plain instructions of the court on die issue of damages, or arbitrarily ignores proven elements of damage, or indicates passion, prejudice or a compromise on the issues of liability and damages, the verdict should be set aside on motion for a new trial.” 236 Kan. at 423.

Again, in Verren, the matter of jury misconduct concerned specifically conspiring to circumvent the instructions given to include attorney fees in the amount of damages awarded and did not rest solely on the mental processes of the jury.

“[T]he truth and veracity of those testifying to such misconduct can be tested. The matters recited in the affidavits filed in the present case do not solely relate to die mental processes, nor do diey rest alone in the mind of a juror or jurors. The matters set forth in the affidavits, if proven, would establish a conscious conspiracy by the members of die jury to disregard and circumvent the instructions on the law given by the court.” 227 Kan. at 262.

A similar situation existed in Johnson, 5 Kan. App. 2d at 686-87. The same concept was repeated in Wainwright, where juror affidavits were offered to show the jury disregarded the trial court’s instruction on consideration of bloodhound evidence. The Court of Appeals found no error in the court refusing to delve into the mental processes of the jury where “[t]he verdict is not so contrary to the evidence that it suggests a conspiracy to disregard the instruction.” 18 Kan. App. 2d at 453.

Where claims of jury misconduct directly implicate the jury’s mental processes and cannot be readily verified as is the case here, the trial court does not abuse its discretion by refusing to recall the jury. Where the affidavits set forth allegations, the truth of which can be verified, as in damage awards, the trial court can allow inquiry and order a new trial. There is no conflict in this area of law. The trial court did not abuse its discretion by refusing to recall the jury based on allegations the jury disregarded the court’s instruction to not consider the fact that Kleypas did not testify in either the guilt or penalty phases.

*973 D. fury’s Speculation on Potential Non-death Sentence

Kleypas argues the affidavits show the jurors speculated during the penalty phase on the amount of time he would be required to serve if the death penalty were not imposed. He contends this was a proper area for recall and inquiry as it involved consideration of extrinsic matters. Kleypas contends he was prejudiced because the affidavits demonstrate that this speculation played a key part in the jury’s sentencing verdict. Furthermore, according to Kleypas, juror Swygert’s affidavit shows the jury’s understanding of alternative dispositions was wrong. Kleypas contends that because of the jurors’ attempts to misadvise each other regarding the law, there was jury misconduct requiring reversal of the death sentence.

In Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, 476, 856 P.2d 906 (1993), this court considered the extent a trial court can delve into the mental processes of the jury and stated:

“ ‘Under these statutes [K.S.A. 60-441 and 60-444] we have held that a juror may not impeach his or her verdict on any ground inherent in the verdict itself; a juror may not divulge what considerations personally influenced him or her in arriving at the verdict or what reasoning personally led him or her to the final decision. State v. Taylor, 212 Kan. 780, 512 P.2d 449 (1973). More recently in Crowley v. Ottken, 224 Kan. 27, 31, 578 P.2d 689 (1978), it was pointed out that evidence is not admissible under K.S.A. 60-441 if it only pertains to the reasons a juror joined in the verdict. To be admissible the evidence must relate to extrinsic misconduct or to physical facts or occurrences within or without the jury room.’ Verren v. City of Pittsburg, 227 Kan. 259, 260, 607 P.2d 36 (1980).

“ ‘The mental process of a juror in reaching a verdict or the factors which influence the mental process cannot be inquired into for the purpose of impeaching a verdict. Public policy forbids the questioning of a juror on these matters for a very obvious reason, i.e., there is no possible way to test the truth or veracity of the answers.’ Saucedo v. Winger, 252 Kan. 718, 729, 850 P.2d 908 (1993).

See Crowley v. Ottken, 224 Kan. 27, 31, 578 P.2d 689 (1978) (juror’s affidavit to impeach verdict inadmissible; affidavit ‘did not relate to extrinsic misconduct or to physical facts or occurrences within or without the jury room but only to the reasons she joined in the verdict’); Smith v. Union Pacific Railroad Co., 214 Kan. 128, 134-35, 519 P.2d 1101 (1974) (trial court properly excluded juror’s affidavit that stated jury ‘instructions were not clear and were confusing to some of the jurors’).”

*974 The jurors’ speculation of what sentence Kleypas would receive or how long Kleypas would be incarcerated if he did not receive the death penalty was part of the reasoning or thought processes of the jury. In accordance with our well-reasoned precedent in this area, these were not proper subjects for recall and inquiry in order to impeach the verdict.

E. luror’s Refusal to Consider Mitigating Evidence

In an affidavit for the defense, juror Seawood stated:

“I felt cheated and angry when we were told about the old lady being killed for the first time at the penalty phase trial. Once I heard about the murder of the old lady, I did not want to hear any more. I did not even consider mitigation after I heard about the old lady’s murder. I felt like it was my grandmother that had been killed. At second phase my thought went to the old lady even more than to [C.W.], I did not hear what other jurors were saying because my thoughts about this were so strong.”

In her affidavit prepared for the State, she stated: “Hearing about the murder of Bessie Lawrence did have a great effect on me. I still listened to all the evidence but the mitigators could not outweigh the aggravator of his Trilling the old lady.”

Kleypas suggests juror Seawood’s initial affidavit shows that after she heard evidence of the prior homicide she had in essence decided the case prior to hearing all the evidence. He contends that therefore Seawood was not an impartial juror and a death sentence imposed by a jury where a member is not impartial denies him due process of law, citing State v. Cady, 248 Kan. 743, 811 P.2d 1130 (1991).

In Cady, a juror was overheard during a recess saying, “ ‘[tjhat son-of-a-bitch [Cady] is guilty as hell.’ ” 248 Kan. at 749-50. The remark was overheard by a detective who reported it to the prosecution; however, the prosecution never reported it to the defense counsel. While noting the right to a jury trial guarantees to the defendant a fair trial by an impartial, indifferent jury, the court also stated:

“[T]he Fourteenth Amendment’s guaranty of due process does not require that a prospective juror be totally ignorant of the facts and issues involved in the case, and the mere existence on his or her part of a preconceived notion as to the guilt *975 or innocence of the accused is, without more, insufficient to rebut the presumption of impartiality if he or she can lay aside an impression or opinion and render a verdict based on the evidence presented in court.” 248 Kan. at 755.

The court did not consider whether this juror s preconceived opinion violated due process because prosecutorial misconduct required a new trial. 248 Kan. at 757.

Juror Seawood’s statement is not of the type that occurred in Cady, and her second affidavit stated that she “listened to all the evidence but the mitigators could not outweigh the aggravator of his killing the old lady.” Instead of indicating a preconceived opinion, the affidavits, read together, demonstrate a proper weighing of aggravating and mitigating circumstances. She was required to and did evaluate all the evidence. Her ultimate decision was adverse to Kleypas but provides no basis for his claims of a denial of due process.

F. furor Garrison Advising Other furors That a Vote For Death Would Not Mean Kleypas Would Get Death

Juror Garrett stated in her affidavit for the defense, “[a]nother juror, the police officer, repeatedly told the jury that just because a vote was for death, that did not mean that Mr. Kleypas would get death.” She clarified in her affidavit for the State by stating:

“When I said in paragraph 4 in my first affidavit, ‘Another juror, a police officer, repeatedly told the jury that just because a vote was for death, that did not mean that Mr. Kleypas would get death,’ what I meant, and what I think I had originally said, was that the police officer told the jury that just because a vote was for capital murder in the first phase, that did not mean that Mr. Kleypas would automatically get death in the second phase.”

Kleypas argues the trial court erred by not recalling juror Garrett to resolve the discrepancy between her affidavits. He contends it is critical to determine whether her comments were made during the guilt or penalty phase, as the effect was to minimize the gravity of the decision the jury was making, citing Caldwell v. Mississippi, 472 U.S. 320, 328-29, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985), in which the United States Supreme Court held that it was impermissible for the State to argue in closing that the responsibility for *976 determining appropriateness of the defendant’s death sentence lies elsewhere than with the jury.

The trial court did not specifically address this claim, again labeling all of the issues except juror Garrison’s consultation of her handbook as being the mental processes of the jury. The question is whether the trial court abused its discretion by refusing to recall juror Garrett. Even if we were to consider the affidavit, we note that Garrett’s second affidavit clarified her original affidavit and hold that the trial court did not abuse its discretion.

Having considered all of Kleypas’ allegations of juror misconduct, we find that the trial court did not abuse its discretion in failing to recall jurors other than Garrison and in ultimately concluding that Kleypas’ motion for new trial based on juror misconduct should be denied.

Issue 15. Sufficiency of Notice to Seek the Death Penalty and Failure to Provide a Pretrial Ruling on Whether Sufficient Evidence Existed to Support Aggravating Circumstances

Kleypas argues the State’s notice of intent to seek the death penalty was insufficient where it did not provide notice of any aggravating circumstances or evidence the State would rely upon. He argues, furthermore, that when the State did file its notice of aggravating circumstances, the notice omitted some evidence the State ultimately presented. Finally, Kleypas contends that when he objected to the sufficiency of the aggravating circumstances, the trial court refused to rule on the motion until after the guilt phase of trial. According to Kleypas, this violated his due process rights.

A. Sufficiency of Notice

The notice statute, K.S.A. 21-4624, states in relevant part:

“(a) If a defendant is charged with capital murder, the county or district attorney shall file written notice if such attorney intends, upon conviction of the defendant, to request a separate sentencing proceeding to determine whether the defendant should be sentenced to death. Such notice shall be filed with the court and served on the defendant or the defendant’s attorney not later than five days after the time of arraignment. If such notice is not filed and served as required by this subsection, the county or district attorney may not request such a sentencing proceeding and *977 the defendant, if convicted of capital murder, shall be sentenced as otherwise provided by law, and no sentence of death shall be imposed hereunder.

“(c) In the sentencing proceeding, evidence may be presented concerning any matter that the court deems relevant to the question of sentence and shall include matters relating to any of the aggravating circumstances enumerated in K.S .A. 21-4625 and amendments thereto and any mitigating circumstances. Any such evidence which the court deems to have probative value may be received regardless of its admissibility under the rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements. Only such evidence of aggravating circumstances as the state has made known to the defendant prior to the sentencing proceeding shall be admissible, and no evidence secured in violation of the constitution of the United States or of the state of Kansas shall be admissible.” (Emphasis added.)

On October 17,1996, the day of arraignment, the State filed the following notice:

“The State of Kansas by and through Carla J. Stovall, Attorney General, John K. Bork, Assistant Attorney General, and Barry K. Disney, Crawford County Attorney, give notice to the Court and to the defendant of the State’s intention, upon conviction of the defendant, to request a separate sentencing proceeding to determine whether the defendant should be sentenced to death.”

Kleypas filed a motion to bar the State from seeking the death penalty for inadequate and defective notice based on the omission of aggravating circumstances the State intended to rely upon in seeking the death penalty. The trial court denied the motion after a hearing. The trial court reasoned the statute was clear and gave no indication that the aggravating circumstances must be listed or included with the notice of intent to seek the death penalty. The trial court ruled the State must file its statutory aggravating circumstances within a reasonable time of trial so that the defendant has sufficient time to prepare accordingly.

The State filed notice of the aggravating circumstances on January 3, 1997. The guilt-phase trial began on July 8, 1997.

The issue involves interpretation of K.S.A. 21-4624. Therefore, our standard of review is as follows:

“Interpretation of a statute is a question of law, and our review is unlimited. State v. Robinson, 261 Kan. 865, 874, 934 P.2d 38 (1997). A fundamental rule of statutory construction is that the intent of the legislature governs when that intent can be ascertained from the statute. When a statute is plain and unambiguous, an *978 appellate court must give effect to the intention of the legislature rather than determine what the law should or should not be. State v. Proffitt, 261 Kan. 526, 532, 930 P.2d 1059 (1997). The general rule is that a criminal statute must be strictly construed in favor of the accused and any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. However, this rule is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Roderick, 259 Kan. 107, 110, 911 P.2d 159 (1996).” State v. Lewis, 263 Kan. 843, 847, 953 P.2d 1016 (1998).

Kleypas argues the term “notice” in K.S.A. 21-4624(a) requires more than the cursory notice that the State intended to seek the death penalty and that instead notice must be sufficient to allow a defendant to face the death penalty proceedings. He contends that K.S.A. 21-4624 provides for only one notice and that nothing in the statute provides for a later second notice which would contain the aggravating circumstances. In support of his contention, he cites State v. Gideon, 257 Kan. 591, 894 P.2d 850 (1995).

In Gideon, the State presented notice at arraignment of the aggravating circumstances on which it would rely. Gideon, however, argued that the State was required to give notice of the evidence it would present at the sentencing proceeding, not just the aggravating circumstances. We found that the State’s presentation of the aggravating circumstances was sufficient, noting that K.S.A. 1993 Supp. 21-4624(1), which at that time addressed the notice requirement for imposition of the hard 40 sentence, “does not detail what information must be contained in the notice.” 257 Kan. at 601. We also concluded that the presentation of aggravating circumstances before trial was sufficient under the facts to advise Gideon as to what evidence would be presented. 257 Kan. at 601.

Contrary to Kleypas’ argument, our opinion in Gideon does not stand for die proposition that K.S.A. 21-4624 requires the State to present notice of the aggravating circumstances at the time of arraignment. Rather, in Gideon, we held that it was sufficient for the State to do so at that time and that no further notice regarding the evidence was required. 257 Kan. at 600-01.

Kleypas also cites State v. Timmons, 192 N.J. Super. 141, 469 A.2d 46 (1983), for the proposition that notice of aggravating factors at arraignment is required. In Timmons, the State failed to *979 present aggravating factors at arraignment as required by court rule. The court found this to be error and precluded the State from alleging aggravating factors not disclosed. 192 N.J. Super. at 149. In so holding, the court stated:

“R. 3:13-4(a) requires the prosecutor to give defendant, at arraignment, an itemization of aggravating factors which he or she intends to prove at the sentencing hearing. Discovery pertaining to such aggravating factors must also be disclosed at arraignment, unless the time to do so is enlarged for good cause by the court. The purpose for this requirement is revealed in the commentary to the rule, which states, ‘This practice would serve to avoid needless delays often occasioned by the failure to provide discovery in a timely fashion. Such a practice has the added advantage fo allowing increased time to fully investigate and analyze the aggravating and mitigating circumstances said to be present in a given case.’ [Citation omitted.]

“The additional time for investigation provided via the rule is vitally important for the defendant. This is so because, ‘. . .the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100 year prison term differs from one of only a year to two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.’ Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 2991, 49 L. Ed.2d 944 (1976). This distinction cannot be overstated.” 192 N.J. Super. at 144.

The Timmons court went on to recite several considerations for which a defendant might need this extra time, including: (1) the retention or appointment of counsel, (2) tactical decision about the handling of the case and pretrial motion, (3) preparation for the penalty phase, (4) eligibility for bail, and (5) plea bargaining. 192 N.J. Super. at 145-46.

While the policy considerations that lead the New Jersey courts to adopt a court rule requiring notice of aggravating factors at the time of arraignment are certainly valid, we have adopted no such rule in Kansas. Such a bright line rule might be helpful but it cannot be said that it is required by the language of K.S.A. 21-4624. Rather, the statute requires only that the State file notice of its intent to seek the death penalty at that time. K.S.A. 21-4624(a). This notice is sufficient to allow a defendant to begin his or her preparation for trial as it serves notice that the case will indeed be a death case, thus allowing the defendant to make choices regard *980 ing the retention of counsel, plea bargaining, and preparation of mitigating circumstances. See Timmons, 192 N.J. Super. at 145-46.

We, therefore, hold that under K.S.A. 21-4624, the State is only required to provide notice that it intends to seek the death penalty upon conviction for capital murder. The State may at that time provide notice of the aggravating circumstances on which it will rely but the State is not required to do so as long as it provides such notice within a reasonable time prior to trial to allow the defendant an opportunity to prepare to defend against the aggravating circumstances.

Here, the State filed notice of aggravating circumstances 6 months before trial. Kleypas was aware of one likely aggravating circumstance — his prior murder conviction. Under the circumstances, Kleypas’ due process rights were not violated.

As part of his argument regarding the notice requirement in K.S.A. 21-4624, Kleypas also contends that the prosecution’s list of the evidence which it would offer lacked notice of some of the evidence ultimately presented, specifically, that footprints behind Bessie Lawrence’s house led to Kleypas’ home. However, K.S.A. 21-4624 does not require the State to fist the evidence it will present with regard to the aggravating circumstances as long as the State has made this evidence known to the defense prior to the sentencing proceeding. See K.S.A. 21-4624(c); Gideon, 257 Kan. at 600-01.

B. Pretrial Ruling on Sufficiency of Aggravating Circumstances

Kleypas contends he had a right to a judicial determination of whether there was some basis for the existence of the aggravating circumstances or, in other words, probable cause before the guilt phase even began. Kleypas filed a motion challenging the sufficiency of some of the aggravating circumstances; however, the trial court refused to rule on the motion until the conclusion of the guilt phase.

The State filed notice of five aggravating circumstances on January 3, 1997. Prior to commencement of the penalty phase trial, *981 the State dismissed one aggravator and the trial court dismissed another, leaving three aggravating circumstances.

Kleypas argues the trial court’s failure to rule on his motions deprived him of due process of law. He contends the Due Process Clause of the Fourteenth Amendment to the Unites States Constitution requires that a defendant subject to the death penalty must first be given notice that the penalty may be imposed and then be given a fair opportunity to contest the imposition before it is pronounced. He urges this court to follow California and New Jersey and find some judicial review of the prosecutor’s decision to seek the death penalty prior to trial would be in order, citing State v. McCrary, 97 N.J. 132, 478 A.2d 339 (1984), and Ghent v. Superior Court of Santa Clara County, 153 Cal. Rptr. 720, 90 Cal. App. 3d 944 (1979). Otherwise, according to Kleypas, any time there is a homicide the prosecutor can impanel a death qualified jury for the guilt phase of the trial by merely filing a list of aggravating circumstances, even if none exist. He argues that a defendant has a significant interest in having a normal non-death qualified jury, an interest which is lost if the trial court denies the defendant a hearing and ruling on challenges to aggravating circumstances.

In McCrary, the State of New Jersey brought an indictment charging McCraiy with purposeful or knowing murder, aggravated assault, unlawful possession of a handgun, and possession of a firearm with a purpose to use the weapon unlawfully. Under New Jersey law, McCrary faced the death penalty for a purposeful or knowing murder if one or more statutorily specified aggravating factors were shown and not outweighed by one or more mitigating factors. The New Jersey Code required the State to give a defendant notice of any aggravating factors it intended to prove “ ‘[p]rior to the commencement of the sentencing proceeding, or at such time as he has knowledge of the existence of an aggravating factor . . . .’ ” 97 N.J. at 135. At the time of notification, the State was also required to provide “ ‘all discovery bearing on’ ” the aggravating factors. 97 N.J. at 138.

Before trial, McCrary moved to strike the aggravating factors, alleging the factors were totally unsupported by the evidence. Over the State’s objection, the trial court ordered a hearing on the suf *982 ficiency of proof of aggravating factors. The State filed a motion for leave to appeal from the order. The New Jersey court granted review on the limited issue of whether the New Jersey Code permitted judicial review of aggravating factors prior to trial on the factual basis of the factors and, if so, the type of hearing that could be conducted. The New Jersey court made clear that it was not addressing any constitutional or statutory issues not squarely before the court. 97 N.J. at 138.

First, on the issue of jurisdiction, the New Jersey court stated:

“When a criminal proceeding takes on the character of a capital case, the exercise of such authority [jurisdictional] is not only tenable, it is absolutely imperative to ensure fundamental fairness to a defendant. There is a qualitative distinction between death and imprisonment. ‘Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.’ Woodson v. North Carolina, 428 U.S. 280, 305 (1976). A healthy sensitiviiy to this distinction militates against prejudicing a defendant by the unwarranted injection of the possibility of a death sentence in a homicide proceeding.” 97 N.J. at 139-40.

Next, the court stated that the fact that the legislature did not provide for such a remedy did not mean the judicial branch was limited in fashioning or denying remedies within the boundary of legislative expression. The court particularly noted the appropriateness of judicial oversight in view of the significance of the prosecutor’s notice, which alone transforms a homicide case into a capital proceeding. The New Jersey Code requires no probable cause determination of whether a homicide case should proceed as a capital case. The prosecutor’s notice acts as the trigger for both the death qualification of the jury and the separate sentencing phase. Therefore, “[s]ome judicial oversight is required to ensure at the very least that the proceeding contemplated by the prosecutor’s notice not be set in motion without justifiable cause.” 97 N.J. at 140.

Addressing prosecutorial discretion, the New Jersey court acknowledged the broad discretionary powers and presumption of validity in the conduct of the prosecutor and sought only minimal intrusion into this area. Accordingly, in striking a balance between prosecutorial discretion and fairness to the defendant, the court *983 adopted the following standard for dismissal of indictments: a presumption in favor of die charges requiring a challenging defendant to demonstrate that evidence is clearly lacking to support the charges. 97 N.J. at 142.

The New Jersey court stressed that trial court discretion in granting a hearing should be limited to motions alleging the aggravating factors are plainly without support. The court noted striking of an aggravating factor would be without prejudice. If later supporting evidence came to light before commencement of the sentencing phase and upon notice to the defendant, a sentencing phase could proceed. 97 N.J. at 144-45. Although it found California case law distinguishable because California law required that evidence of “special circumstances” justifying imposition of a death penalty be alleged in accusatoiy pleadings presented by the grand jury, the New Jersey court noted with approval the limited review provided for in Ghent. 97 N.J. at 145. See also State v. Matulewicz, 115 N.J. 191, 557 A.2d 1001 (1989) (following McCrary). In Ghent, the court allowed pretrial review of the evidence supporting the special circumstances required to impose the death penalty. 153 Cal. Rptr. at 726-27.

Both McCrary and Ghent stand for the proposition that it is not error to allow a pretrial challenge to aggravating factors. However, Kleypas provides no authority holding that a pretrial determination of whether there is sufficient evidence of aggravating circumstances to justify a separate penalty phase trial is constitutionally required. We do not find the reasoning in McCrary in favor of conducting such a determination to be persuasive. Kansas has a specific charge of capital murder and, therefore, an initial determination of whether a case should proceed as a capital offense. In New Jersey, a defendant may be subject to the death penalty for any purposeful murder after the State provides notice of an aggravating factor and there is no prosecutorial check before the case proceeds as a capital-murder case. Due to the nature of this system, the New Jersey court held that some judicial oversight was required. Based on the marked difference between Kansas and New Jersey law, we are not required to fashion such a judicial remedy in order to protect the rights of defendants. We hold that the trial *984 court did not err in failing to allow Kleypas to challenge the sufficiency of the aggravating circumstances prior to the guilt phase of the trial.

Issue 16. Competency to Stand Trial

Kleypas filed two motions alleging that he was incompetent to stand trial. Both were denied by the court after hearing. He contends that the trial court abused its discretion in denying both motions.

Our standard of review on both motions is one of abuse of discretion.

“A criminal defendant is incompetent to stand trial when, because of a mental illness or defect, the defendant is unable to understand the nature and purpose of the proceedings against him or her or where he or she is unable to make or assist in making a defense. K.S.A. 22-3301. On appeal, a reviewing court’s inquiry regarding the decision of a district court that a defendant is competent to stand trial is whether the trial court abused its discretion. State v. Beckham, 255 Kan. 310, 325, 875 P.2d 257 (1994). Judicial discretion is abused where no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. O’Neal, 256 Kan. 909, 911, 889 P.2d 128 (1995).” State v. Barnes, 263 Kan. 249, 263, 948 P.2d 627 (1997).

Kleypas urges this court to apply the above standard to the evidence but argues that the burden of proof at the first hearing was upon the State because the trial court ordered his competency evaluation on its own motion. He cites State v. Cellier, 263 Kan. 54, 70, 948 P.2d 616 (1997):

“The obvious rule is that a party who raises the issue of competence to stand trial has the burden of going forward with the evidence, which will be measured by the preponderance of the evidence standard. When the court itself raises the competency issue, the court is not a party and cannot be responsible for coming forward with the evidence, but it can assign that burden to the State because both the court and the State have a duty to provide due process and to provide a fair trial to an accused.”

However, it is clear that while the trial court appointed Lamed State Security Hospital (Larned Hospital) to evaluate Kleypas, it did so only after the defense counsel filed a motion raising the issue of incompetency. The party who raises the issue of compe *985 tency, not the one who orders the evaluation, is assigned the burden of proof. When opening the first hearing, the trial court explicitly stated: “Approximately a month ago the Court ordered that the defendant’s competency be determined pursuant to motion filed by the defendant. Accordingly, he was sent to the Larned State Security Hospital for that competency evaluation.” (Emphasis added.) Contrary to his contention, application of our standard of review properly places the burden of proof on Kleypas.

A. First Motion

On March 7, 1997, Kleypas filed a notice of incompetency to stand trial. Attached to the notice was an. affidavit signed by the defense counsel attesting to Kleypas’ behavior. Also attached was an affidavit of Dr. Jonathan Lipman, a neuropharmacologist, attesting to his findings after an evaluation of Kleypas in June 1996, and Dr. Gerald Gentry, attesting to his observations of Kleypas in August and September 1996. The final attachment was a 1977 report from Dr. Emasue Snow, apparently conducted and written for Kleypas’ defense in the murder trial of Bessie Lawrence.

The trial court held a hearing on April 11, 1997. Dr. Ekkehard Othmer testified for the defense, and Dr. J.L. Fernando, of Lamed Hospital, testified for the State. Dr. Fernando testified that Kleypas was clearly competent to stand trial and that it was “not even a close call.” Dr. Fernando testified that Lamed Hospital did not perform comprehensive testing on Kleypas because such extensive evaluation is usually reserved for marginal competency cases or where it is necessary to determine the existence of mental disease or defect as required for a potential insanity defense, which was not the case here. Dr. Femando noted that Kleypas was aware of the serious nature of the charges against him and the potential consequences of the charges. It was Dr. Fernando’s opinion that Kleypas would be able to work with his attorneys as demonstrated when Kleypas refused to sign a release of information consent form without first consulting his lawyers. Dr. Femando testified that Kleypas’ thought processes were organized and there was no evidence of auditory or visual hallucinations during Kleypas’ stay at Lamed Hospital. Lamed Hospital staff did not observe evidence *986 of bizarre behavior or response to unseen stimuli and, in general, observed that Kleypas acted appropriately throughout his stay.

Dr. Othmer did not evaluate Kleypas; rather, he evaluated the adequacy of Lamed Hospital’s evaluation. It was Dr. Othmer’s opinion that Lamed Hospital’s evaluation process was inadequate to provide a rehable conclusion on Kleypas’ competency to stand trial. He criticized the lack of thorough psychological testing of Kleypas, although admitting that in cases where the individual is obviously competent, such an evaluation process could be shortened. Dr. Othmer also took issue with Lamed Hospital’s assignment of a Global Assessment Function (GAF) score of 40. The GAF is computed on a scale of 1 to 100 with anyone rated at 50 or below requiring hospitalization. The GAF measures an individual’s ability to relate or interact with others in an appropriate way. Dr. Othmer found Kleypas’ score of 40 inconsistent with Dr. Fernando’s opinion that Kleypas was competent to stand trial. Dr. Fernando, however, based the low GAF score on Kleypas’ prior murder and his present capital-murder charge, rather than a lack of contact with reality.

After consideration of the testimony of both psychiatrists regarding Kleypas’ GAF score and concluding that a score of 40 under the facts of this case was not inconsistent with a finding of competency, the trial court ruled:

“Competency to stand trial is defined as the ability of a defendant to understand the nature and purpose of the proceedings against him and to make or assist in making a defense. State v. Peckham, 255 Kan. 310. There is simply nothing of significance in the testimony or the exhibits of significance that militates against a finding of competency. SSH [Lamed Hospital] believes the defendant is obviously competent and that this is not even a close call. Rather than presenting evidence that the defendant is incompetent, counsel have only attacked the thoroughness of the SSH evaluation. Even Dr. Othmer did not state that the defendant is incompetent, rather, he believes that additional testing is necessary before that determination can be made. This position goes to the weight of the evidence. Ultimately the only evidence on the issue of competency that was presented, and can therefore be weighed, is evidence supporting a finding of competency.

“The above-cited Peckham case is instructive as it involved a determination of competency base upon three factors: first, the lack of evidence of incompetency; second, as expert’s direct opinion of competency; and third, the court’s own observations. Peckham, at 325. In the present matter, there is no evidence of incom *987 petency. Secondly, the only direct opinion on the issue of competency was Dr. Fernando’s opinion that the defendant is indeed competent for trial. Dr. Othmer was unable to render an opinion of the issue of competency. Indeed, Dr. Othmer has never interviewed the defendant. Third, the Court’s observations of the defendant in court support a finding of competency. The defendant has always responded appropriately to questions posed by the Court, the defendant answered questions appropriately the sole time he has testified in this matter, and die Court has never observed any inappropriate conduct or mannerism exhibited by die defendant during the many hearings held to date in this matter. Moreover, the Court notes the defendant’s responses to the so-called Sentence Completion Test, the form entitled “C.S.T.,” in the Psychiatric section of Defense Exhibit #1. Said form clearly demonstrates that the defendant has the correct perception of this matter.

“Based upon the above-referenced findings and comments, all exhibits submitted, the testimony of the competency hearing, and arguments of counsel, the Court finds that the defendant understands the nature and the purpose of the proceedings against him and is able to make or assist in the making of his defense. The defendant is accordingly found competent to stand trial. In the absence of any evidence to the contrary, the Court finds that the defendant has been unable to sustain his burden of proving incompetency by a preponderance of the evidence. Moreover, the Court believes that the evidence of competency is sufficiently substantial enough that the Court would nevertheless find the defendant competent to stand trial even were the burden to be placed upon the State.”

On appeal, Kleypas raises many of the same issues addressed by the trial court. Rather than attacking the trial court’s finding of competency, Kleypas complains of the inadequacy of the Lamed Hospital evaluation. The additional arguments and authority advanced by Kleypas fail to demonstrate an abuse of discretion. Accordingly, under our standard we affirm the trial court’s determination as to Kleypas’ first motion.

B. Second Motion

On June 30,1997, within 2-1/2 months of the trial court’s initial determination that Kleypas was competent to stand trial, Kleypas filed a second notice of incompetency. In addition to attacking the prior competency hearing, this notice alleged that Kleypas was experiencing ongoing memory lapses or amnesia. The notice included an affidavit from Gaye Nease, an attorney employed as a mitigation specialist by the Kansas Death Penalty Defense Unit. In the affidavit, Nease brought up several instances regarding Kley *988 pas’ mental processes interfering with his ability to communicate with counsel. However, Nease did not testify at the second competency hearing.

Despite the trial court’s opinion that the notice provided no new information and was in the nature of a delaying tactic, the court ordered another competency evaluation to be performed by Wyandot Mental Health Center (WMHC).

Kleypas refused to be interviewed by WMHC before consulting with his attorneys. He was allowed to consult with his attorneys, and the interview was rescheduled. Kleypas again refused to cooperate with WMHC. The trial court held a hearing on July 7, 1997. The only evidence presented was that of Mark Roberts, a psychologist at WMHC, who testified that Kleypas had refused testing and that he recommended further testing as merely standard operating procedure when someone refused to be interviewed. The trial court offered Kleypas another chance to be evaluated, but he again declined.

The trial court concluded that the allegations in Kleypas’ second notice of incompetency were essentially the same as contained in the first notice; that Kleypas, in essence, was attempting to attack the first finding of competency. The court noted the affidavit of Nease and that she was not present for testimony or cross-examination. The trial court found Kleypas’ refusal to be interviewed by WMHC before he consulted with his attorneys again suggests he understands the seriousness of the charges and does not suggest any incompetency. As Kleypas’ actions precluded any further attempt to determine his competency and in view of the lack of evidence presented at this hearing, the trial court concluded that it could only find Kleypas competent to stand trial.

After the trial court ruled against Kleypas on the competency issue, defense counsel Wood stated he was prepared to take the witness stand and provide evidence on Kleypas’ alleged amnesia, referring to an earlier motion filed by defense counsel titled “Notice of Necessity of Defense Counsel Becoming a Witness for the Accused and Proffer of Material Evidence to Which Counsel is the only Witness.” This earlier motion claimed that Kleypas could not recall the initial interrogation by Agent Williams and Detective *989 Hite or that he told defense counsel that Agent Williams and Hite threatened him on the car ride back to Kansas; that he could not recall advising his attorneys that Agent Williams rehearsed what would be covered on the videotaped confession; and that he did not respond “ ‘[t]he long and the short of it, yes,’ ” to the question of whether he killed C.W. but instead said, “ 1 guess I did, I’m not sure.’ ”

The trial court did not allow Wood to testify, indicating that it was not doubting Wood’s word but instead was finding that even if the testimony were allowed, amnesia alone would not be sufficient to make a finding of incompetency, citing State v. Owens, 248 Kan. 273, 807 P.2d 101 (1991).

Kleypas argues the trial court’s refusal to hear testimony from the defense counsel on the competency issue is reversible error. He claims the refusal was a due process violation as the defense counsel’s testimony was the best evidence of Kleypas’ behavior since counsel had spent countless hours conversing with Kleypas. Kleypas contends the overwhelming weight of federal and state law supports his argument that defense counsel “must” be permitted to testify at a competency hearing.

The authorities cited by Kleypas support the view that an attorney may testify at a competency hearing. However, the general principle in those cases is that the attorney’s testimony may not violate the attorney-client privilege and, thus, is permitted where it does not reveal the substance of any confidential communication but instead focuses on the attorney’s observations of matters that are not confidential, such as the defendant’s behavior or demeanor. See Howell v. United States, 282 F. Supp. 246, 249 (E.D. Ill. 1968); Bishop v. Superior Court In & For Puma Cty., 150 Ariz. 404, 408, 724 P.2d 23 (1986); Manning v. State, 766 S.W.2d 551, 556-57 (Tex. App. 1989).

Regarding amnesia as a basis for a claim of incompetency, we have held:

“Amnesia alone should not supply the basis for declaring a defendant incompetent to stand trial. Amnesia is a factor to be considered in determining whether the defendant is able to meet the test of competency to stand trial and to obtain a fair trial. State v. Gilder, 223 Kan. 220, Syl. ¶ 3, 574 P.2d 196 (1977). See *990 Annot, 46 A.L.R.3d 544. The danger of false claims is great. Fajeriak v. State, 520 P.2d 795, 802 (Alaska 1974). Amnesia can easily be feigned. State v. McClendan, 103 Ariz. 105, 108, 437 P.2d 421 (1968).” Owens, 248 Kan. at 280.

Kleypas acknowledges that amnesia alone does not require a finding of incompetence; however, he contends there was evidence of significant amnesia which “hamstrung” his ability to effectively communicate with his defense team.

There was no evidence of Kleypas’ memory deficit from Larned Hospital’s evaluation of him. Kleypas gave no indication he had any amnesia for the significant events constituting the offense. Kleypas’ suggestion that he refused the second competency evaluation “contrary to the advice of counsel” is self serving and not supported by the record.

It is true that the “failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent . . . deprives him of his due process right to a fair trial.” Drope v. Missouri, 420 U.S. 162, 172, 43 L. Ed. 2d 103, 95 S. Ct. 896 (1975). However, the court’s failure to allow the defense counsel to testify regarding Kleypas’ alleged amnesia did not deprive Kleypas of his due process rights. The procedure used here was adequate to protect Kleypas’ due process rights, and the evidence supported the trial court’s finding of competency.

We conclude that under the circumstances of this case, neither the refusal of the trial court to allow Wood to testify nor the finding that Kleypas was competent to stand trial was an abuse of discretion on the part of the trial court. State v. Peckham, 255 Kan. 310, 325, 875 P.2d 257 (1994). Even considering Wood’s proffered testimony, the trial court did not abuse its discretion in determining that Kleypas was competent to stand trial. Although Wood proffered that Kleypas suffered from amnesia which affected his ability to communicate effectively with counsel, Kleypas’ evaluation from Larned Hospital showed no such memory deficit. Under the circumstances, any error in the failure to consider Wood’s testimony was harmless.

Issue 17. Removal of Prospective furor Molden for Cause — United States Constitution

Kleypas contends that the trial court erred in removing prospective juror Molden for cause due to her moral and religious *991 beliefs about the death penalty. During voir dire, Molden stated that her moral and religious beliefs would prevent her from returning a verdict which would result in the execution of another human being. However, upon questions posed by the defense counsel, she indicated that it would be possible for her to return a death penalty if the case fell within her list of very few exceptions. These exceptions were not identified, although Molden said she would know at once if the case met her exceptions. The defense counsel did not object to the removal of Molden for cause.

We have held that challenges for cause are matters left to the sound discretion of the trial court, which is in a better position to view the demeanor of prospective jurors during voir dire. A trial court’s ruling on a challenge for cause will not be disturbed on appeal unless it is clearly erroneous or amounts to an abuse of discretion. State v. Dixon, 248 Kan. 776, 788, 811 P.2d 1153 (1991).

Kleypas argues that the court abused its discretion because the juror’s response that she could return a death penalty for one of her very few exceptions rehabilitated her as a qualified juror under Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968), and Wainwright v. Witt, 469 U.S. 412, 83 L. Ed. 2d 841, 105 S. Ct. 844 (1985). In Witherspoon, the United States Supreme Court held “that a sentence of death could not be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” 391 U.S. at 522. Witt clarified the standard for determining when a prospective juror may be excluded for cause because of his or her views on the death penalty. The Court stated that a prospective juror may be excluded for cause because of his or her views on capital punishment where “the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” 469 U.S. at 424. The Court said that “this standard likewise does not require that a juror’s bias be proved with ‘unmistakable clarity.’ ” 469 U.S. at 424.

The Witt decision was grounded in the Sixth and Fourteenth Amendments and the right to an impartial jury. 469 U.S. at 422-23. *992 K.S.A. 22-3410(2)(i) allows a party to challenge any prospective juror for cause when a juror’s “state of mind with reference to the case or any of the parties is such that the court determines there is doubt that he can act impartially and without prejudice to the substantial rights of any party.”

Kleypas argues that the facts in this case are strikingly similar to those in Gray v. Mississippi, 481 U.S. 648, 95 L. Ed. 2d 622, 107 S. Ct. 2045 (1987); Farina v. State, 680 So. 2d 392 (Fla. 1996); and Clark v. State, 929 S.W.2d 5 (Tex. Crim. App. 1996). However, in each of the cases relied upon by Kleypas, the juror, although opposed to the death, unequivocally stated that she would follow the instructions even if it resulted in the imposition of the death penalty. In the case at hand, the State asked whether Molden’s beliefs would substantially impair her ability to follow the instructions. She stated: “Yeah, I guess I would put it like that, yeah.” Her comments following this statement regarding special cases where she might impose the death penalty did not rehabilitate her in this regard. Clearly, from her testimony, Molden’s ability to follow the instructions would have been dependent on whether the case was one of her “very few exceptions,” a standard she was unable to articulate. Thus, the court’s decision that Molden’s views would “ prevent or substantially impair the performance of [her] duties as a juror in accordance with [her] instructions and [her] oath’ ” was not clearly erroneous or an abuse of discretion. See Witt, 469 U.S. at 424.

Issue 18. Removal of Five jurors for Cause — Kansas Constitution

Kleypas next argues about the removal of five prospective jurors, including Molden, for cause. We have already discussed the removal of Molden above, concluding that it was not error under Witt. Kleypas recognizes that the removal of the other four prospective jury members, Ash, Watson, Neal, and Tinder may also have been permissible under the standard in Witt. Kleypas contends, however, that the removal of the five prospective jurors violated § 7 of the Kansas Constitution Bill of Rights, which he claims provides broader protection than the First Amendment to the United States Constitution and should be read to provide a further *993 limitation on the State’s power to exclude prospective jurors based on their religious opposition to the death penalty.

Section 7 of the Kansas Constitution Bill of Rights provides:

"The right to worship God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend or support any form of worship; nor shall any control of or interference with the rights of conscience be permitted, nor any preference be given by law to any religious establishment or mode of worship. No religious test or property qualification shall be required for any office of public trust, nor for any vote at any election, nor shall any person be incompetent to testify on account of religious belief.”

Kleypas contends an “office of public trust” is equivalent to “public office” which would include a juror, citing K.S.A. 21-3110(19)(c) (“public officer” includes a “judicial officer” which in turn includes a juror) and State v. Monahan, 72 Kan. 492, 501, 84 Pac. 130 (1905) (“office of public trust” is equivalent to “public office”). Consequently, Kleypas maintains the trial court cannot require a religious test of an individual holding the office of juror. Thus, according to Kleypas’ theory, excluding a juror for cause on the basis of his or her religious belief concerning the death penalty is an impermissible “religious test,” violating § 7 of the Kansas Constitution Bill of Rights.

K.S.A. 43-156 provides that “[n]o person shall be excluded from service as a grand or petit juror in the district courts of Kansas on account of race, color, religion, sex, national origin, or economic status.” Section 7 of the Kansas Constitution Bill of Rights does not provide any greater hmitation than already provided under K.S.A. 43-156. The trial court excused Ash, Watson, Neal, Tinder, and Molden due to their inability to be impartial and follow their oath as jurors regarding consideration of the death penalty, not on religious grounds. Further, where one of the jurors cited religious beliefs as a basis for objecting to the death penalty, religion did not appear to be the sole basis for the formation of their beliefs as exemplified by juror Ash’s comment that his views on the death penalty “developed as a result of life experiences.”

We conclude that the trial court did not abuse its discretion by excusing Ash, Watson, Neal, Tinder, and Molden for cause.

*994 Issue 19. Denial of a Separate Sentencing lury

Kleypas contends that the trial court erred in denying his request for a separate sentencing juiy. He argues that he was prejudiced because the same jury that heard his guilt phase also heard the penalty phase argument.

K.S.A. 21-4624(b) governs juries in capital cases and provides:

“Except as provided in K.S.A. 21-4622 and 21-4623, and amendments thereto, upon conviction of a defendant of capital murder, the court, upon motion of the county or district attorney, shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to death. The proceeding shall be conducted by the trial judge before the trial jury as soon as practical. If any person who served on the trial jury is unable to serve on the jury for the sentencing proceeding, the court shall substitute an alternate juror who has been impaneled for the trial jury. If there are insufficient alternate jurors to replace trial jurors who are unable to serve at the sentencing proceeding, the trial judge may summon a special jury of 12 persons which shall determine the question of whether a sentence of death shall be imposed. Jury selection procedures, qualifications of jurors and grounds for exemption or challenge of prospective jurors in criminal trials shall be applicable to the selection of such special jury. The jury at the sentencing proceeding may be waived in the manner provided by K.S.A. 22-3403 and amendments thereto for waiver of a trial jury. If the jury at the sentencing proceeding has been waived or the trial jury has been waived, the sentencing proceeding shall be conducted by the court.” (Emphasis added.)

The express provisions of the statute undermine Kleypas’ argument. We are not at liberty to interpret other provisions of the statute to require a separate jury where, as here, express provisions of the statute provide otherwise.

The provisions of K.S.A. 21-4624(b) are constitutionally sound. The United States Supreme Court has repeatedly upheld legislatures’ enactments of unitary or same jury procedures in capital cases. Lockhart v. McCree, 476 U.S. 162, 180, 90 L. Ed. 2d 137, 106 S. Ct. 1758 (1986); Spaziano v. Florida, 468 U.S. 447, 464, 82 L. Ed. 2d 340, 104 S. Ct. 3154 (1984); Gregg v. Georgia, 428 U.S. 153, 168, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976). Lockhart identified several interests in support of a unified jury: (1) The same jurors responsible for deciding guilt should also have the responsibility for deciding punishment, the two questions being intertwined; (2) in some cases the defendant may benefit from the same *995 jury system if the jury has any “residual doubts” concerning the strength of the evidence,- and (3) evidence presented during the guilt phase, having a bearing on the penalty phase, would not have to be presented twice. 476 U.S. at 181. The trial judge in this case specifically identified some of the above advantages in denying the defendant’s motions.

Kleypas argues that the failure to provide for a separate sentencing juiy puts him in the untenable position of being unable to voir dire the jury as to its bias regarding certain aggravating circumstances, such as his prior record, for fear of prejudicing the jury in the guilt phase. He cites authority from Oregon and New Jersey involving a similar issue to the one he now raises. See State v. Biegenwald, 126 N.J. 1, 594 A.2d 172 (1991); State v. Pinnell, 311 Or. 98, 806 P.2d 110 (1991). However, it must be observed that each state interprets its own law and none of the authority cited is controlling in the interpretation of Kansas law.

K.S.A. 21-4624(b) provides a method for the defendant in every capital-murder case to remove biased jurors during the penalty phase. The defendant is entitled to ask questions during voir dire before the sentencing phase of the trial begins. Here, Kleypas chose not to voir dire the jurors concerning the binding effect of his prior murder conviction or any of the aggravating circumstances. However, that procedure existed as a method of removing potentially biased jurors for cause. See Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992). The provisions of K.S.A. 21-4624(b) anticipate that persons who served as jurors during trial may not be available for the sentencing phase of the trial:

“If any person who served on the trial jury is unable to serve on the jury for the sentencing proceeding, the court shall substitute an alternate juror who has been impaneled for the trial jury. If there are insufficient alternate jurors to replace trial jurors who are unable to serve at the sentencing proceeding, the trial judge may summon a special jury of 12 persons which shall determine the question of whether a sentence of death shall be imposed.”

We conclude, based upon the express provision of K.S.A. 21-4624(b), that the trial court correctly denied Kleypas’ motion for a separate sentencing jury.

*996 Issue 20. Alleged Judicial Misconduct During jury Orientation

Kleypas contends that a comment made by the trial court during jury orientation was error and prejudiced his right to a fair trial. During jury orientation, the prospective jurors were separated into two groups. As part of its opening comments before both groups, the trial court provided a brief general overview of the justice system and, in particular, juries and their function. In giving this overview, the trial court stated: “Under certain circumstances, parties are entitled to a jury trial when they are not otherwise able to settle their controversies.”

The next morning, Kleypas filed a motion for mistrial and discharge of panel and/or corrective instruction. Kleypas argued the comment would lead the jury to believe that it was within Kleypas’ power to “settle the controversy” but that he had not done so. Further, the comment suggested to the jury that there had been failed plea negotiations indicating his guilt on charges filed. The proffered curative instruction stated: “Mr. Kleypas has an absolute right to a jury trial under the constitution. The State of Kansas is responsible for the necessity of this case going to trial as the State has refused any attempt to resolve the matter short of a death sentence for Mr. Kleypas.” In chambers before the start of voir dire, the trial court denied the motion, stating that it was the court’s, opinion that nothing untoward was conveyed to the jury by the court’s opening comments. The fact that Kleypas offered to plead and the offer refused by the State was not known to the jury and until this point not known to the trial court. The court stated that in fact the curative instruction would convey to the jury that Kleypas had offered to plea and make a suggestion of guilt.

This court analyzes jury orientation comments under the judicial misconduct standard of review. State v. Gadelkarim, 256 Kan. 671, 676, 887 P.2d 88 (1994). Under that standard:

“Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding such alleged misconduct. In order to warrant or require the granting of a new trial, it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party. A mere possibility of prejudice from a remark of the judge is not sufficient to overturn a verdict or judgment. If a proper and reasonable con *997 struction will render the remark unobjectionable, die remark is not prejudicial. State v. Nguyen, 251 Kan. 69, Syl. ¶¶ 4, 5, 833 P.2d 937 (1992).” 256 Kan. at 677.

Kleypas contends the trial court’s comments were prejudicial and required a mistrial or a curative instruction. As this did not occur, he believes a new trial is warranted. Kleypas argues the comment was prejudicial as it “denigrated” his constitutional right to a juiy trial. He further argues that there was a reasonable likelihood that the jury construed the statement as an indication that Kleypas was responsible for the parties’ inability to settle their controversies and implied there had been unsuccessful plea negotiations and, thus, an acknowledgment of guilt on the defendant’s part, citing State v. Miller, 259 Kan. 478, 485-86, 912 P.2d 722 (1996).

In Miller, before the trial court dismissed those venire members who were not seated on the jury, the court stated:

“ And I just want to tell you that we appreciate the fact you came in, because if we didn’t have persons such as yourselves who were willing to take a day out of their lives to come down here to make up a jury panel for us, we’d never get juries. And the reality is that for every case we try, we end up handling nearly twenty of them without the necessity of a trial because people involved in the process know that citizens such as yourselves are willing to come down here and make up juries for us and that we have a system that will, in fact, work.’ ” 259 Kan. at 485.

Miller claimed that this comment denied him a fair and impartial trial. We held that Miller showed no prejudice from the remark and that the remark, read in context, did not suggest that Miller should have pled guilty, and found no error. 259 Kan. at 486.

The trial court’s brief statement was lifted from prepared general jury orientation comments. We conclude that the remarks of the trial judge in no way referred to, nor could even be inferred as referring to, anything specific in Kleypas’ case. The remark was unobjectionable and not prejudicial. The trial court did not err in refusing to give the corrective instruction suggested by Kleypas.

Issue 21. Alleged Batson Violation for Peremptory Strike of furor Wheeler

Kleypas argues that the State’s peremptory strike of prospective juror Wheeler violated the United States Supreme Court decision *998 in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). He contends that the State struck Wheeler on the basis of gender and that the gender-neutral reasons given for the strike — that Wheeler’s roommate was an alcoholic and that Wheeler had indicated that she was unsure whether the death penalty was a necessary punishment — were unlawful reasons.

Kleypas further argues that striking Wheeler because of her association with an Americans with Disabilities Act (ADA) disability-qualified individual is in itself a Batson violation and cannot be a gender-neutral reason. Alcoholism meets the definition of a disability for ADA purposes. See Miners v. Cargill Communications, Inc., 113 F.3d 820, 823 n.5 (8th Cir. 1997); Senate Sergeant at Arms v. Senate Fair Emp. Pract., 95 F.3d 1102, 1105 (Fed. Cir. 1996).

It is questionable whether Batson applies to ADA disabilities. See U. S. v. Santiago-Martinez, 58 F.3d 422, 423 (9th Cir. 1995). In Santiago-Martinez, the Ninth Circuit Court of Appeals held that a peremptory strike based on obesity did not violate Batson even though obesity was a recognized disability for purposes of the ADA. The Ninth Circuit limited any Batson protection beyond gender and race to those classes to which heightened scrutiny under the Equal Protection Clause would apply. 58 F.3d at 423. In so holding, the Ninth Circuit noted that the United States Supreme Court in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128 L. Ed. 2d 89, 114 S. Ct. 1419 (1994), had stated that “[p]arties may . . . exercise their peremptory challenges to remove from the venire any group . . . subject to ‘rational basis’ review.” 58 F.3d at 423. See J.E.B., 511 U.S. at 143. It has been held that alcoholics are not a suspect or quasi-suspect class for equal protection analysis and are thus subject only to rational basis review. See Mitchell v. Commissioner of the Social Sec. Admin., 182 F.3d 272, 274 (4th Cir. 1999); Gazette v. City of Pontiac, 41 F.3d 1061, 1067 (6th Cir. 1994).

Because alcoholism is subject only to a rational basis review under the Equal Protection Clause, Batson does not prohibit strikes based on alcoholism and Kleypas’ argument in this respect fails.

*999 In State v. Edwards, 264 Kan. 177, 192-94, 955 P.2d 1276 (1998), we summarized the requirements of Batson and its progeny as follows:

“In Batson, the United States Supreme Court set out a framework designed to prevent the discriminatory exclusion of jurors on the basis of race. Under the Batson framework, the defendant must first make a prima facie case showing that the prosecutor has exercised peremptory challenges on the basis of race. Once such a showing has been made, the burden shifts to the prosecutor to articulate a race-neutral reason for striking the juror. The trial court must then determine whether the defendant has carried the burden of proving purposeful discrimination. See Hernandez v. New York, 500 U.S. 352, 358-59, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991).

“The Court in Batson found that in order to establish a prima facie case, the defendant must first show that he or she is a member of a cognizable racial group and that the prosecution has exercised peremptory challenges to remove from the venire members of the defendant’s race. Batson, 476 U.S. at 96. The defendant is entitled to rely on the fact that peremptory challenges constitute a jury selection practice that permits those who are of a mind to discriminate to do so. The defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude jurors from the jury on account of their race. 476 U.S. at 96.

“This framework has been extended beyond the initial set of circumstances in Batson. In Powers v. Ohio, 499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364 (1991), the United States Supreme Court determined that the Batson framework extended to a challenge by a white defendant to the prosecutor’s use of peremptory strikes to exclude prospective black jurors on the basis of race. In reaching this conclusion, the Court determined that the Equal Protection Clause prohibits the use of peremptory challenges to exclude otherwise qualified and unbiased persons from the jury panel solely by reason of their race and that a defendant has standing to raise the juror’s equal protection claims. 499 U.S. at 409-15. Further, in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128 L. Ed. 2d 89, 114 S. Ct. 1419 (1994), the Court extended the Batson framework to prohibit discrimination based on gender. In so doing, the Court stated:

‘[T]he Equal Protection Clause prohibits discrimination in jury selection on the basis of gender, or on tire assumption that an individual will be biased in a particular case for no reason other than the fact that the person happens to be a woman or happens to be a man. As with race, the “core guarantee of equal protection, ensuring citizens that their State will not discriminate . . ., would be meaningless-were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors’ [gender].” [Citation omitted.].’ 511 U.S. at 146.

“These rulings have changed the requirements for the establishment of aprima facie case. The defendant need no longer establish that he or she is a member of *1000 a cognizable minority group since die focus is now on the individual rights of juiy members not to be excluded on die basis of race or sex. See Powers v. Ohio, 499 U.S. at 415; J.E.B. v. Alabama ex rel. T.B., 511 U.S. at 140-41. Thus, in order to establish a prima facie case, the defendant need only show that the prosecution has exercised peremptoiy challenges to remove from the venire members of a certain race or gender and that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude die jurors from the jury on account of their race or gender. Batson, 476 U.S. at 96.”

Kleypas contends that the alternate reason for striking Wheeler, that she was unsure whether the death penalty was an appropriate punishment in society, was insufficient. When asked on the juror questionnaire if the death penalty was a necessary punishment in our society, Wheeler had marked “unsure.” Later, on voir dire, Wheeler indicated that she could impose a sentence of death in an appropriate case. Kleypas contends that other jurors whom the State did not strike demonstrated a greater aversion to the death penalty.

The ultimate question with regard to whether a Batson violation existed is whether the State has purposefully discriminated. State v. Walston, 256 Kan. 372, 381, 886 P.2d 349 (1994). Kleypas objected to the strike against Wheeler on the basis of gender. Certainly, the fact that the State struck Wheeler, a woman, due to her aversion to the death penalty, while leaving prospective male jurors who also indicated such an aversion is circumstantial evidence of discrimination. See Walston 256 Kan. at 381. However, the defendant failed to show at the Batson hearing that similar prospective male jurors were not struck. Therefore, the trial court did not err in finding that there was no discrimination.

Kleypas’ final argument with regard to the strike of Wheeler is that it was improper for the State to use its peremptoiy strike to remove Wheeler from the jury on the basis of her aversion to imposing the death penalty. However, appellate courts addressing this issue have found such a practice not to be improper. See Pitsonbarger v. Gramley, 141 F.3d 728 (7th Cir.), cert. denied 525 U.S. 984 (1998); Brown v. Dixon, 891 F.2d 490 (4th Cir. 1989), cert. denied 495 U.S. 953 (1990); Zuern v. Tate, 101 F. Supp. 2d 948 (S.D. Ohio 2000); State v. Bolton, 182 Ariz. 290, 302, 896 P.2d 830 *1001 (1995); State v. King, 249 Conn. 645, 661-62, 735 A.2d 267 (1999); Manning v. State, 735 So. 2d 323, 339 (Miss. 1999); State v. Bjorklund, 258 Neb. 432, 456, 604 N.W.2d 169 (2000); State v. Clark, 128 N.M. 119, 131, 990 P.2d 793 (1999).

We hold that the trial court did not err in allowing the peremptory strike of prospective juror Wheeler.

Issue 22. Cumulative Error in the Guilt Phase

Kleypas argues that each of the above errors are independent grounds for reversal; however, if this court concludes that no single error requires reversal then the cumulative effect of all the errors requires reversal. ‘We have recognized that cumulative trial errors may be so great as to require reversal of a defendant’s conviction. See State v. Castoreno, 255 Kan. 401, 411, 874 P.2d 1173 (1994). The test is whether the totality of circumstances substantially prejudiced the defendant and denied him or her a fair trial. 255 Kan. at 411.” State v. Carr, 265 Kan. 608, 625-26, 963 P.2d 421 (1998).

Based upon the above analysis of the issues raised by Kleypas regarding the guilt phase, we conclude that under the totality of the circumstances, Kleypas was not denied a fair trial and there was no cumulative error sufficient to require reversal.

Guilt Phase — Conclusion

Based upon our findings above, the defendant’s convictions of capital murder, attempted rape, and aggravated burglary are affirmed.

PART II — CONSTITUTIONAL ISSUES

We turn now to the issues Kleypas raises concerning the constitutionality of the death penalty in Kansas. These issues include:

Constitutionality of the Weighing Equation

Constitutional and Evidentiary Challenge to the Avoid Arrest Aggravating Circumstance

Constitutional Challenge to the Definition of the Heinous, Atrocious, or Cruel Manner Aggravating Circumstance

Proportionality of Sentence

*1002 Constitutionality of Upward Departure for Conviction of Aggravated Burglary

Instruction on Mercy

Standard for Admission of Evidence During the Penalty Phase

Effect of a Guilty Plea Under K.S.A. 21-4624

The Right to Life Under the Kansas Constitution

Failure to Make Written Findings as to Mitigators

Lethal Injection as Cruel and Unusual Punishment

Death Penalty Under International Law

Issue 23. Constitutionality of Weighing Equation

Kleypas argues that the weighing equation set forth in K.S.A. 21-4624(e) violates the state and federal constitutional prohibitions against cruel and unusual punishment and the guarantees of due process because it mandates a sentence of death when aggravating and mitigating circumstances are found to be in equal balance. Under the facts of this case, we agree that the weighing equation violates the Eighth and Fourteenth Amendments to the United States Constitution.

K.S.A. 21-4624(e) provides:

“If, by unanimous vote, the juiy finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S .A. 21-4625 and amendments thereto exist and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced to death; otherwise, the defendant shall be sentenced as provided by law.”

Kleypas argues that mandating death when aggravating and mitigating circumstances are found to be in equal balance produces unrealistic results, creates a presumption of death, shifts the burden of proof to the defendant to prevent imposition of a death sentence, and precludes the jury from giving effect to the mitigating evidence.

The constitutionality of a statute is a question of law over which this court has de novo review. State v. Ponce, 258 Kan. 708, 709, 907 P.2d 876 (1995). We must decide if the weighing equation in the statute violates the Eighth Amendment to the United States Constitution because it mandates a sentence of death if the jury *1003 finds that the mitigating and aggravating circumstances are in equipoise. Equipoise is a result of mandating the death sentence if the mitigating circumstances do not outweigh the aggravating circumstances.

Kleypas contends that the Kansas weighing formula is unique among the 38 death penalty states by mandating a death sentence when there is equipoise. Although no other state statute has identical language to our statute, five states have similar language resulting in the same weighing equation.

Kleypas first raised the equipoise issue by motion filed in the district court. The district court denied the motion, finding that the United States Supreme Court approved such a statutory scheme in Proffitt v. Florida, 428 U.S. 242, 49 L. Ed. 2d 913, 96 S. Ct. 2960 (1976). The district court’s reliance on Proffitt is misplaced. In Proffitt, the Supreme Court noted:

“The jury found the defendant guilty as charged. Subsequently, as provided by Florida law, a separate hearing was held to determine whether the petitioner should be sentenced to death or to life imprisonment. Under the state law that decision turned on whether certain statutory aggravating circumstances surrounding the crime outweighed any statutory mitigating circumstances found to exist.” 242 U.S. at 245-46.

Justice White in concurring also noted: “Under Florida law, the sentencing judge is required to impose the death penalty on all first-degree murderers as to whom the statutory aggravating factors outweigh the mitigating factors.” 242 U.S. at 260 (White, J., concurring). The Florida weighing equation is not the same as ours. Under the Florida weighing equation, a death sentence cannot be imposed if there is a finding that equipoise easts. Proffitt does not support the district court’s decision in the present case. In addition, the Florida jury returns an advisory verdict, and the judge has the ultimate responsibility for sentencing the defendant.

Kleypas cites three cases in support of his constitutional challenge to K.S.A. 21-4624(e). The first is State v. Biegenwald, 106 N.J. 13, 524 A.2d 130 (1987). The New Jersey statute in effect at the time of the crime stated in part: “ Tf the jury or the court finds that any aggravating factor exists and is not outweighed by one or more mitigating factors, the court shall sentence the defendant to *1004 death.’ ” 106 N.J. at 58. The court considered the weighing equation sua sponte, finding it constituted plain error. Thé court stated:

“The error concerns the jury’s function in balancing aggravating factors against mitigating factors, a function that leads directly to its ultimate life or death decision. Its effect was to allow a death sentence without a finding that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt. We hold that such a finding was required by the Act at the time of defendant’s trial as a matter of fundamental fairness and that its absence mandates reversal and retrial of the penalty decision. Legislative policy also mandates this result, as indicated by the 1985 amendments to the Act; those amendments, furthermore, provide an independent basis for this result.” 106 N.J. at 53.

The court made it clear that the former rather than the latter was ultimately the basis for its decision: “If anywhere in the criminal law a defendant is entitled to the benefit of the doubt, it is here. We therefore hold that as a matter of fundamental fairness the jury must find that aggravating factors outweigh mitigating factors, and this balance must be found beyond a reasonable doubt.” 106 N.J. at 62.

In People v. Young, 814 P.2d 834 (Colo. 1991), the Colorado Supreme Court considered the constitutionality of their statutory weighing equation which required the jury return a sentence of death if the jury found insufficient mitigating factors to outweigh the statutory aggravating factors. The court noted that under this formula a death sentence was mandated if the “mitigators and aggravators are equally balanced.” 814 P.2d at 839. The court concluded that the statute violated the state constitution provision against cruel and unusual punishment, stating:

“The result of a decision that the relevant considerations for and against imposition of the death penalty in a particular case are in equipoise is that the jury cannot determine with reliability and certainty that die death sentence is appropriate under the standards established by the legislature. A statute that requires a death penalty to be imposed in such circumstances without the necessity for further deliberations, as does section 16-ll-103(2)(b)(III), is fundamentally at odds with die requirement that the procedure produce a certain and reliable conclusion that die death sentence should be imposed. That such a result is mandated by statute rather than arrived at by a jury adds nothing to the reliability of the death sentence. The legislature has committed the function of weighing aggravators and mitigators to the jury. A jury determination that such factors are in equipoise means nothing more or less than that the moral evaluation of the de *1005 fendant’s character and crime expressed as a process of weighing has yielded inconclusive results. A death sentence imposed in such circumstances violates requirements of certainty and reliability and is arbitrary and capricious in contravention of basic constitutional principles. Accordingly, we conclude that the statute contravenes the prohibition of cruel and unusual punishments under article II, section 20, of the Colorado Constitution, and deprives the defendant of due process of law under article II, section 25, of that constitution.” 814 P.2d at 845.

Although the decision in Young rests upon state constitutional grounds, the court found that the United States Supreme Court had not addressed the equipoise issue, stating:

“Key to the United States Supreme Court rulings is the conclusion that a limitation on the class of persons eligible for the death penalty is constitutionally required and may be accomplished by a finding of at least one aggravating factor, and that a weighing of all relevant mitigating factors is constitutionally required before a sentence of death can be imposed on a particular individual. Walton, 110 S. Ct. at 3056 (plurality opinion); Boyde, 110 S. Ct. at 1196; Blystone, 110 S. Ct. at 1083. The basis for these requirements ‘is the principle that punishment should be directly related to the personal culpability of the criminal defendant.’ Penry, 492 U.S. at 319, 109 S. Ct. at 2947. Thus, the Court in Penry stated

“ ‘ “that it is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence. Only then can we be sure that the sentencer has treated the defendant as a ‘uniquely individual human bein[g]’ and has made a reliable determination that death is the appropriate sentence.” ’ ” Penry, 492 U.S. at 319, 109 S. Ct. at 2947 (quoting Woodson, 428 U.S. at 304, 96 S. Ct. at 2991) (citation omitted).

Constitutional sufficiency is not assured simply because the jury is not limited in the mitigating factors it may hear and consider. The sentencer must also determine whether those mitigating factors are outweighed by the aggravating factors, Boyde, 110 S. Ct. at 1196; Blystone, 110 S. Ct. at 1083, or, stated alternatively, are sufficient to call for leniency, Walton, 110 S. Ct. at 3056. We find nothing in the reasoning in the United States Supreme Court cases cited that casts doubt on our conclusion that the Colorado death penalty statute fails to satisfy our own constitutional standards. We do not believe that the United States Supreme Court cases can be fairly read to contain any suggestion that the death penalty can be imposed when the sentencer finds aggravating and mitigating considerations to be equally balanced. Even if we are wrong in our understanding of federal precedent, however, we hold that to authorize imposition of the death penalty when aggravators and mitigators weigh equally, as does the current version of section 16-11-103, violates fundamental requirements of certainty and reliability under the cruel and unusual punishments and due process clauses of the Colorado Constitution.” 814 P.2d at 846.

*1006 The third case relied on by Kleypas is Hulsey v. Sargent, 868 F. Supp. 1090 (E. D. Ark. 1993). At issue in Hulsey was the Arkansas statute mandating a death sentence if the mitigating circumstances did not outweigh the aggravating circumstances. 868 F. Supp. at 1092. The court noted the problem such an equation created:

“If a jury found the mitigating and aggravating circumstances in equipoise, neither one more probative than the other, or, could not fairly come to a conclusion about what balance existed between them, they would be obliged to impose the death sentence since die mitigating circumstances would not be found to outweigh the aggravating. The requirement that die aggravating circumstances justify the sentence of death, which could easily be (and was probably intended to be) construed as an independent inquiry (satisfied by a single finding of an aggravating circumstance) would not cure the presumption created by the equation.” 868 F. Supp. at 1101.

The court concluded: “Here, it is explicit in the statute that mitigating must outweigh aggravating circumstances and no saving instruction is found. Here too, the strictures of the Eighth and Fourteenth Amendments with their requirements of individualized sentencing and full consideration of evidence in mitigation appear to require relief.” 868 F. Supp. at 1103.

The State does not bother to respond or attempt to distinguish the cases cited by Kleypas. Instead, the State relies completely on Walton v. Arizona, 497 U.S. 639, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990). In Walton, the United States Supreme Court considered the constitutionality of the Arizona statute which provided that the court “ 'shall impose a sentence of death if the court finds one or more of the aggravating circumstances enumerated . . . and that there are no mitigating circumstances sufficiently substantial to call for leniency.’ ” 497 U.S. at 644.

The State argues that the U.S. Supreme Court specifically addressed this issue in Walton and rejected Kleypas’ argument. The State’s argument is premised on its view that the Arizona statute “is functionally indistinguishable from the Kansas statute in this respect.” We disagree and find the two statutes distinguishable. The obvious distinction is the language used in each statute. The Arizona statute does not call for a weighing formula in which the mitigating circumstances must outweigh the aggravating circum *1007 stances, the very essence of the issue before this court. Such a weighing equation results in mandating a death sentence where the jury finds equipoise as to the mitigating and aggravating circumstances.

As previously noted, the Colorado Supreme Court in Young distinguished the language in the Arizona statute from the Colorado statute and found that the issue of equipoise was not raised or decided in Walton. 814 P.2d at 846. We agree.

The failure of the plurality in Walton to address equipoise was noted by Justice Blackmun in his dissent:

“The plurality does not attempt to explain why Arizona may require a capital sentence in a case where aggravating and mitigating circumstances are evenly balanced. Indeed, the plurality does not even acknowledge that this is the dis-positive question. Instead, it offers only a conclusoiy assertion: ‘So long as a State’s method of allocating the burdens of proof does not lessen the State’s burden to prove every element of the offense charged, or in this case to prove the existence of aggravating circumstances, a defendant’s constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency.’ [Citation omitted.]” 497 U.S. at 688 (Blackmun, J., dissenting).

Justice Blackmun, however, addressed the issue:

“If the mitigating and aggravating circumstances are in equipoise, the statute requires that the trial judge impose capital punishment. The assertion that a sentence of death may be imposed in such a case runs directly counter to the Eighth Amendment requirement that a capital sentence must rest upon a ‘determination that death is the appropriate punishment in a specific case.’ Woodson v. North Carolina, 428 U.S., at 305 (plurality opinion).

“The plurality takes a hard-line approach and makes little effort to ground its holding on our Eighth Amendment jurisprudence. In support of its position, the plurality cites only two very recent capital cases, Blystone v. Pennsylvania, 494 U.S., at 305 (1990) and Boyde v. California, 494 U.S. 370 (1990). Reliance even on diese precedents is misplaced. The statutes upheld in those cases provided that the death penalty would be imposed ‘only after a determination that the aggravating circumstances outweigh the mitigating circumstances present in the particular crime committed by the particular defendant, or that there are no such mitigating circumstances.’ Blystone, 494 U.S., at 305. In neither Boyde nor Blystone did the challenged statute require a capital sentence when aggravating and mitigating factors are evenly balanced. Those decisions simply do not speak to the issue posed by the Arizona statute: whether the State permissibly may place upon *1008 the capital defendant the burden of demonstrating that a sentence of death is not appropriate.” 497 U.S. at 687-88 (Blackmun, J., dissenting).

In Montana v. Smith, 261 Mont. 419, 863 P.2d 1000 (1993), the Montana Supreme Court considered the Montana statute which read:

“In determining whether to impose a sentence of death or imprisonment, the court shall take into account aggravating and mitigating circumstances . . . and shall impose a sentence of death if it finds one or more of the aggravating circumstances and finds that there are no mitigating circumstances sufficiently substantial to call for leniency.” Mont. Code Ann. § 46-18-305 (1977).

The Montana Supreme Court rejected the Young rationale on the basis that the Montana weighing equation was much different from that of Colorado. The court held Montana’s statute “requires imposition of the death penalty if the court finds one or more aggravating circumstances and no mitigating circumstances sufficiently substantial to call for leniency. Unlike the Colorado provision, it does not require the death sentence to be imposed if the aggravating and mitigating factors are of equal weight.” 261 Mont. at 438.

The difference between the language in K.S.A. 21-4624(e) and the Arizona statute is expressed in the amicus curiae Cornell Death Penalty Project brief as follows:

“On its face, the Arizona provision operates on a different logic than does section 21-4624(e). Unlike section 21-4624(e), the Arizona statute does not tell the sentencer to impose death if aggravating circumstances are not outweighed by mitigating circumstances. Instead, it requires death only if‘there are not mitigating circumstances sufficiently substantial to call for leniency.’ The key to the Arizona sentencing formula is the idea of ‘sufficiently substantial.’

“That language, unlike section 21-4624(e), does not direct the sentencer to impose death if it finds aggravating and mitigating circumstances are in equipoise. If a sentencer in Arizona thought aggravating and mitigating circumstances were equally balanced, he or she could reasonably conclude that there were mitigating circumstances ‘sufficiently substantial to call for leniency,’ or he or she could reach the opposite conclusion. The law leaves the sentencer free to decide either way. In contrast, a Kansas juror who reached the same conclusion about the relative balance between aggravation and mitigation would have only one option: to impose death. In fact, under the Arizona scheme a sentencer who thought that aggravating circumstances actually outweighed mitigating circumstances couldsiiH conclude that the available mitigating circumstances were ‘sufficiently substantial’ *1009 — i.e., that they crossed some critical threshold of substantiality — to ‘call for leniency.’ A Kansas juror clearly does not have that option.”

This court has addressed this issue in the context of K.S.A. 1999 Supp. 21-4635(c), the hard 40 sentence. In State v. Spain, 269 Kan. 54, 60, 4 P.3d 621 (2000), we held that statute was not unconstitutional. We made it clear that the death penalty cases are not controlling in hard 40 cases. Likewise, hard 40 cases are not controlling when the sentence is death. That distinction is reflected by the State not citing or relying on our decision in Spain. Spain is not controlling here because the death penalty is different from all other punishments:

“[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” Woodson v. North Carolina, 428 U.S. 280, 305, 49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976).

Justice Stevens wrote:

“In the 12 years since Furman v. Georgia, 408 U.S. 238 (1972), every Member of this Court has written or joined at least one opinion endorsing the proposition that because of its severity and irrevocability, the death penalty is qualitatively different from any other punishment, and hence must be accompanied by unique safeguards to ensure that it is a justified response to a given offense.” Spaziano v. Florida, 468 U.S. 447, 468, 82 L. Ed. 2d 340, 104 S. Ct. 3154 (1984) (Stevens, J., concurring in part and dissenting in part).

In Spain, we said:

“In addition, we reaffirm that death penalty cases are not controlling in hard 40 cases. The distinction between the two is obvious. The death penalty as it existed prior to the decision in Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972), was held to be unconstitutional. The unconstrained discretion in imposing the death penalty constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The states were required to provide ‘ “specific and detailed guidance" ’ and ‘ “make rationally reviewable the process for imposing a sentence of death.” ’ Godfrey v. Georgia, 446 U.S. 420, 428, 64 L. Ed. 2d 398, 100 S. Ct. 1759 (1980) (quoting Proffitt v. Florida, 428 U.S. 242, 253, 49 L. Ed. 2d 913, 96 S. Ct. 2960 [1976], and Woodson v. North Carolina, 428 U.S. 280, 303, 49 L. Ed. 2d 944, 96 S. Ct. 2978 [1976], respectively). Not so with a hard 40 sentence. In State v. Bailey, 251 Kan. 156, *1010 171, 834 P.2d 342 (1992), we said: ‘[T]he finality and severity of the imposition of the death penalty, the hurdles the prosecution must clear if the death penalty is to be imposed are higher than in any other area of criminal law.’ The United States Supreme Court, in Rummel v. Estelle, 445 U.S. 263, 272, 63 L. Ed. 2d 382, 100 S. Ct. 1133 (1980), stated: ‘Because a sentence of death differs in kind from any sentence of imprisonment, no matter how long, our decisions applying the prohibition of cruel and unusual punishments to capital cases are of limited assistance in deciding the constitutionality of the punishment meted out to Rummel.’ ” 269 Kan. at 59-60.

No issue is more difficult or divisive than determining to what extent a capital punishment is permitted under the Eighth and Fourteenth Amendments to the United States Constitution. We determined earlier in this opinion that the death penalty in and of itself does not constitute cruel and unusual punishment under the Eighth Amendment. The issue we grapple with here is whether the imposition of the death penalty under our statutory weighing formula constitutes cruel and unusual punishment under the Eighth Amendment. More specifically, is K.S.A. 21-4624(e) applied in an unconstitutional manner by mandating death if the aggravating and mitigating circumstances are in equipoise?

In Furman v. Georgia, 408 U.S. 238, 309-10, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972), the Supreme Court held the death penalty as imposed in Georgia to be cruel and unusual punishment in violation of the Eighth and 14th Amendments. The Supreme Court did so in a one paragraph, per curiam opinion. The rationale of the decision is to be found in the five separate opinions which follow the per curiam opinion. That poses some difficulty since none of the five separate opinions concurred in any of the other opinions. Four justices filed separate dissents.

The opinions of Justices White and Stewart are relied on in subsequent opinions of the Supreme Court. Both made it clear that the death penalty is not in itself cruel and unusual under the Eighth Amendment. Justice Stewart’s view was that the “the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.” 408 U.S. at 310 (Stewart, J., concurring). Justice White wrote: “[T]here is no meaningful basis for distinguishing the few cases in which it is imposed *1011 from the many cases in which it is not.” 408 U.S. at 313 (White, J., concurring).

Four years later, the Supreme Court approved the Georgia death penalty statute as amended in response to the Court’s decision in Furman. In Gregg v. Georgia, 428 U.S. 153, 207, 49 L. Ed. 2d 859, 96 S. Ct. 2909, reh. denied 429 U.S. 875 (1976), the Court found the amended death penalty statutes to be constitutional. That decision was announced by three justices: Stewart, Powell, and Stevens. The three justices focused on the procedure by which the defendant was given the death penalty and not the actual punishment. Justices White and Rehnquist and Chief Justice Burger concurred in the judgment by separate opinion, as did Justice Blackmun. The Georgia statute required that the jury must find beyond a reasonable doubt 1 of 10 statutory aggravating circumstances before it can impose a sentence of death.

“In addition, the jury is authorized to consider any other appropriate aggravating or mitigating circumstances. [Citation omitted.] The jury is not required to find any mitigating circumstance in order to make a recommendation of mercy that is binding on the trial court, [citation omitted], but it must find a statutory aggravating circumstance before recommending a sentence of death.” 428 U.S. at 197.

Stewart went on to write:

“No longer can a Georgia jury do as Furman’s jury did: reach a finding of the defendant’s guilt and then, without guidance or direction, decide whether he should live or die. Instead, the jury’s attention is directed to the specific circumstances of the crime: Was it committed in the course of another capital felony? Was it committed for money? Was it committed upon a peace officer or judicial officer? Was it committed in a particularly heinous way or in a manner that endangered the lives of many persons? In addition, the jury’s attention is focused on the characteristics of the person who committed the crime: Does he have a record of prior convictions for capital offenses? Are there any special facts about this defendant that mitigate against imposing capital punishment (e.g., his youth, the extent of his cooperation with the police, his emotional state at the time of the crime). As a result, while some jury discretion still exists, ‘the discretion to be exercised is controlled by clear and objective standards so as to produce nondiscriminatoiy application.’ Coley v. State, 231 Ga. 829, 834, 204 S.E.2d 612, 615 (1974.)” 428 U.S. at 197-98.

Following the Georgia decision, the Supreme Court invalidated the mandatory death penalty statutes passed in some states in re *1012 sponse to Furman. Woodson v. North Carolina, 428 U.S. at 303. The Supreme Court concluded that the death sentence process must include consideration of the “character and record of the individual offender.” 428 U.S. at 304. In Penry v. Lynaugh, 492 U.S. 302, 316, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989), the Court noted:

“Indeed, as Woodson v. North Carolina, 428 U.S. 280 (1976), made clear, ‘in capital cases the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.’ Id., at 304 (plurality opinion).”

The Court further stated:

“Our decisions subsequent to Jurek have reaffirmed that the Eighth Amendment mandates an individualized assessment of the appropriateness of the death penalty. In Lockett v. Ohio, 438 U.S. 586 (1978), a plurality of this Court held that the Eighth and Fourteenth Amendments require that the sentencer ‘not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.’ ” 492 U.S. at 317.

“Underlying Lockett and Eddings is the principle that punishment should be directly related to the personal culpability of the criminal defendant. If the sentencer is to make an individualized assessment of the appropriateness of the death penalty, ‘evidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.’ California v. Brown, 479 U.S. 538, 545 (1987) (O’Connor, J., concurring). Moreover, Eddings makes clear that it is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence.” 492 U.S. at 319.

Justice O’Connor, concurring in Franklin v. Lynaugh, 487 U.S. 164, 184-85, 101 L. Ed. 2d 155, 108 S. Ct. 2320 (1988), wrote:

“[I]t is clear that a State may not constitutionally prevent the sentencing body from giving effect to evidence relevant to the defendant’s background or character or the circumstances of the offense that mitigates against the death penalty. Indeed, the right to have the sentencer consider and weigh relevant mitigating evidence would be meaningless unless the sentencer was also permitted to give effect to its consideration.”

*1013 In Penry, Justice O’Connor speaking for a majority of the Court wrote:

“But as we made clear in Gregg, so long as the class of murderers subject to capital punishment is narrowed, there is no constitutional infirmity in a procedure that allows a jury to recommend mercy based on the mitigating evidence introduced by a defendant. [428 U.S.] at 197-199, 203.

“ ‘In contrast to the carefully defined standards that must narrow a sentencer’s discretion to impose the death sentence, the Constitution limits a State’s ability to narrow a sentencer’s discretion to consider relevant evidence that might cause it to decline to impose the death sentence.’ McCleskey v. Kemp, 481 U.S. 279, 304 (1987) (emphasis in orginal). Indeed, it is precisely because the punishment should be directly related to the personal culpability of the defendant that the jury must be allowed to consider and give effect to mitigating evidence relevant to a defendant’s character or record or the circumstances of the offense. Rather than creating the risk of an unguided emotional response, full consideration of evidence that mitigates against the death penalty is essential if die jury is to give a ‘ “ ‘reasoned moral response to the defendant’s background, character, and crime.’ ” ’ Franklin, 487 U.S., at 184 (O’Connor, J., concurring in judgment) (quoting California v. Brown, 479 U.S., at 545 [O’Connor, J., concurring]). In order to ensure ‘reliability in the determination that death is the appropriate punishment in a specific case,’ Woodson, 428 U.S., at 305, the jury must be able to consider and give effect to any mitigating evidence relevant to a defendant’s background and character or the circumstances of the crime.” 492 U.S. at 327.

Penry argued that the jury was unable to express its “reasoned moral response” to his mitigation evidence of his mental retardation and childhood abuse in determining if death was an appropriate sentence. The Court agreed, stating:

“In this case, in the absence of instructions informing the jury that it could consider and give effect to the mitigating evidence of Penry’s mental retardation and abused background by declining to impose the death penalty, we conclude that the juiy was not provided with a vehicle for expressing its ‘reasoned moral response’ to that evidence in rendering its sentencing decision. Our reasoning in Lockett and Eddings thus compels a remand for resentencing so that we do not ‘risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.’ Lockett, 438 U.S., at 605; Eddings, 455 U.S., at 119 (O’Connor, J., concurring). “When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.’ Lockett, 438 U.S., at 605.’’ 492 U.S. at 328.

In Woodson, Justice Stewart speaking for the majority wrote:

*1014 “While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trop v. Dulles, 356 U.S., at 100 (plurality opinion), requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.

“[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” 428 U. S. at 304-05 (Brennan, J., concurring).

If we are to give more than lip service to the principles espoused by the Supreme Court, then the weighing equation in K.S.A. 21-4624 cannot be approved. The Eighth Amendment forbids unguided discretion in imposing a sentence of death. Under our statutes, the jury discretion is guided by requiring that it find the existence of one statutory aggravated circumstance. That narrows the class of those eligible for the death penalty. The Supreme Court has made it clear that the process cannot stop there. Of equal importance is the sentencer’s consideration of the mitigating circumstances. Here, the jury as the fact finder must be given discretion in considering and giving effect to the mitigating circumstances. As previously noted, the Georgia capital sentencing statutes, approved in Gregg, did not limit the jury’s consideration of the mitigating circumstances. Here, the weighing equation not only limits the jury’s consideration, it mandates death if the aggravating and mitigating circumstances are equal. As such, it denies what the Eighth Amendment requires: that the jury is to give effect to the mitigating circumstance that it finds exist.

It is important to note that on March 14, 1995, the attorney general analyzed the statute and recommended in the House Judiciary Committee of the Kansas Legislature that the statute be amended to require that aggravating circumstances outweigh mitigating circumstances, stating: “Now if they are equal, ‘tie’ goes to state. We’re proposing ‘tie’ goes to defense . . . .” Unfortunately, *1015 the legislature did not follow the attorney general’s recommendation.

As the New Jersey Supreme Court pointed out in Biegenwald, there is a similarity of the jury’s function in weighing the aggravating and mitigating circumstances to that of determining guilt or innocence of the defendant. The burden is the same. The process is much the same and the outcome as serious, if not more so. The penalty of death is not only unique in its severity, but it is irrevocable. The United States Supreme Court noted the similarity in Spaziano v. Florida, 468 U.S. at 458-59:

“This Court, of course, has recognized that a capital proceeding in many respects resembles a trial on the issue of guilt or innocence. See Bullington v. Missouri, 451 U.S. 430, 444 (1981). Because the ‘ “embarrassment, expense and ordeal” . . . faced by a defendant at the penalty phase of a . . . capital murder trial . . . are at least equivalent to that faced by any defendant at the guilt phase of a criminal trial/ the Court has concluded that the Double Jeopardy Clause bars the State from making repeated efforts to persuade a sentencer to impose the death penalty. Id., at 445, quoting Green v. United States, 355 U.S. 184, 187 (1957); Arizona v. Rumsey, 467 U.S. 203 (1984).”

The legislature cannot mandate a death sentence for any category of murder. The legislature is limited to defining who is eligible, within constitutional limits, to receive the death penalty. It is for the jury, within permissible guidelines, to determine who will live and who will die. The issue is not whether the penalty of death is per se cruel and unusual punishment. Furman did not hold that the death penalty was cruel and unusual punishment per se under the Eighth Amendment. Here the issue, as that before the Furman court, is whether the process used to select which defendant will receive the irrevocable penalty of death “comports with the basic concept of human dignity at the core of the [Eighth] Amendment.” Gregg, 428 U.S. at 183.

Is the weighing equation in K.S.A. 21-4624(e) a unique standard to ensure that the penalty of death is justified? Does it provide a higher hurdle for the prosecution to clear than any other area of criminal law? Does it allow the jury to express its “reasoned moral response” to the mitigating circumstances? We conclude it does not. Nor does it comport with the fundamental respect for hu *1016 inanity underlying the Eighth Amendment. Last, fundamental fairness requires that a “tie goes to the defendant” when life or death is at issue. We see no way that the weighing equation in K.S.A. 21-4624(e), which provides that in doubtful cases the jury must return a sentence of death, is permissible under the Eighth and Fourteenth Amendments. We conclude K.S.A. 21-4624(e) as applied in this case is unconstitutional.

Our decision does not require that we invalidate K.S.A. 21-4624 or the death penalty itself. We do not find K.S.A. 21-4624(e) to be unconstitutional on its face, but rather, we find that the weighing equation impermissibly mandates the death penalty when the jury finds that the mitigating and aggravating circumstances are in equipoise.

In State v. Motion Picture Entitled “The Bet,” 219 Kan. 64, 547 P.2d 760 (1976), the defendant challenged the constitutionality of the definition of obscene material contained in K.S.A. 21-4301(2) (a) and (3) (Weeks). In 1973, the United States Supreme Court in Miller v. California, 413 U.S. 15, 24, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973), revised the test for obscenity. The definition of obscene material in K.S.A. 21-4301 (Weeks) did not conform to the constitutional requirements of Miller. The district court, however, found the films to be obscene by construing the broader definition in our statute to conform to the requirement of the Miller decision. Simply stated, the district court read the Miller standards into K.S.A. 21-4301. This court affirmed the district court on appeal, stating:

“This court has on previous occasions seen fit to construe and limit criminal statutes in such a way as to uphold their constitutionality by reading judicial requirements into statutes which otherwise were overbroad.

“Construction of this sort, moreover, was invited by the United States Supreme Court in Miller in which the Chief Justice speaking for a majority said:

*We do not hold . . . that all States . . . must now enact new obscenity statutes. Other existing state statutes as construed heretofore or hereafter, may well be adequate. [Citation omitted]’ (413 U.S. 24, note 6, 37 L. Ed. 2d 430, 93 S. Ct. 2615.)

“The high court has itself adopted this course of judicial construction of statutes as noted in United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 37 L. Ed. 2d *1017 500, 93 S. Ct. 2665, and in United States v. Thirty-seven Photographs, 402 U.S. 363, 28 L. Ed. 2d 822, 91 S. Ct. 1400, reh. den. 403 U.S. 924, 29 L. Ed. 2d 702, 91 S. Ct. 2221, with respect to federal statutes.

“In at least nine other states the courts have held that their obscenity statutes, though not couched in the language of Miller, should be judicially construed in a manner consistent with Miller and thereby evade constitutional challenge in the future. [Citations omitted.]

“We realize that to construe the statute to meet constitutional standards we may be subject to the accusation that we are invading the province of the legislature. However, after considering the manifest intention of the legislature when it passed K.S.A. 21-4310, etseq., and our past difficulties in this area of regulating obscenity we feel fully justified in construing and limiting the present statute to meet constitutional standards. Such was the original intent of the Kansas legislature.” 219 at 70-71.

This court then “authoritatively” construed K.S.A. 21-4301 (Weeks) to include the Miller test and held a conviction may be had under the statute.

In In re Adoption of Baby Boy L., 231 Kan. 199, 223, 643 P.2d 168 (1982), Justice Holmes, speaking for the court, said:

“In examining the constitutionality of any statute there are certain basic principles which must be adhered to:

“ We start with the proposition that the constitutionality of a statute is presumed; that all doubts must be resolved in favor of its validity, and before the statute may be stricken, it must clearly appear the statute violates the Constitution. It is the court’s duty to uphold the statute under attack, if possible, rather than defeat it. If there is any reasonable way a statute may be construed constitutionally permissible, that should be done.’ Board of Greenwood County Comm’rs v. Nadel, 228 Kan. 469, Syl. ¶ 1, 618 P.2d 778 (1980).

“ ‘A statute, apparently valid upon its face, may be unconstitutional in its application to a particular set of facts, circumstances or classifications.’ Flax v. Kansas Turnpike Authority, 226 Kan. 1, Syl. ¶ 6, 596 P.2d 446 (1979).

“The corollary of Flax, of course, is that a statute apparendy void on its face may be constitutional when limited and construed in such a way as to uphold its constitutionality by reading the necessary judicial requirements into the statute. This has often been done when it is clear that such an interpretation will carry out the intent of the legislature. State v. Motion Picture Entitled ‘The Bet’, 219 Kan. 64, 70, 547 P.2d 760 (1976); State v Gunzelman, 210 Kan. 481, 502 P.2d 705 (1972); State v. Hart, 200 Kan. 153, 434 P.2d 999 (1967).”

In State v. Durrant, 244 Kan. 522, 769 P.2d 1174 (1989), the district court ruled K.S.A. 79-5201 etseq. (Ensley) unconstitutional in violation of the Fifth Amendment to the United States Consti *1018 tution. The district court held K.S.A. 79-5206 (Ensley) did not grant absolute immunity and thus did not prohibit the use of the information in prosecuting for other crimes. In other words, as written, K.S.A. 79-5206 granted use immunity but not derivative-use immunity. This court, relying on In re Adoption of Baby Boy L. and State v. Motion Picture Entitled “The Bet,” reversed the district court:

“This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute. To accomplish this purpose the court may read the necessary judicial requirements into the statute. In re Adoption of Baby Boy L., 231 Kan. 199, Syl. ¶ 13, 643 P.2d 168 (1982); State v. Motion Picture Entitled “The Bet” 219 Kan. 64, 547 P.2d 760 (1976); State v. Gunzelman, 210 Kan. 481, 502 P.2d 705 (1972); State v. Hart, 200 Kan. 153, 434 P.2d 999 (1967). We think it is obvious, and we so hold, that the legislature, by its enactment of 79-5206 as a part of the act, intended to extend not only use immunity but also derivative-use immunity to any person complying with the act. As construed, the immunity granted by the act is at least coextensive with the privilege against self-incrimination provided by the Fifth Amendment of the United States Constitution, and the act as so construed is constitutional.” 244 Kan. at 534-35.

The legislative intent in passing the death penalty act is obvious. K.S.A. 21-4624 provides for a death sentencing scheme by which a sentence of death is imposed for certain offenses. By simply invalidating the weighing equation and construing K.S.A. 21-4624(e) to provide that if the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. 21-4625 exists and, further, that such aggravating circumstance or circumstances outweigh any mitigating circumstance found to exist, the defendant shall be sentenced to death, the intent of the legislature is carried out in a constitutional manner. So construed, we hold that K.S.A. 21-4624 does not violate the Eighth Amendment prohibition against cruel and unusual punishment. Our holding requires that this case be remanded for the jury to reconsider imposition of the death penalty.

We set aside the death sentence for the reasons set out above and remand for resentencing in accordance with K.S.A. 21-4624 as construed herein.

*1019 Because we hold that the provisions of K.S.A. 21-4624 are constitutional as interpreted by this court, it becomes necessary to address Kleypas’ additional constitutional challenges regarding capital murder provisions of Kansas statutory law.

Issue 24. Constitutional and Evidentiary Challenge to the Avoid Arrest Aggravating Circumstance

Kleypas advances two arguments with regard to the Kansas statutory “avoid arrest” aggravating circumstance: (1) The evidence does not support the jury’s finding that he murdered C.W. in order to avoid or prevent a lawful arrest or prosecution after his attempt to rape her, and (2) the “avoid arrest” aggravating circumstance violates the United States Constitution as well as the Kansas Constitution because it fails to narrow the class of persons eligible for the death penalty.

K.S.A. 21-4624(e) requires that aggravating circumstances outlined in K.S.A. 21-4625 be proven beyond a reasonable doubt. K.S.A. 21-4625(5) identifies the following aggravating circumstance: “The defendant committed the crime in order to avoid or prevent a lawful arrest or prosecution.” The standard of review on appeal as to the sufficiency of evidence regarding an aggravating circumstance is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the existence of the aggravating circumstance beyond a reasonable doubt. See State v. Evans, 251 Kan. 132, 135-36, 834 P.2d 335 (1992).

A. The State’s Evidence and Argument

In its opening statement during the penalty phase, the State informed die jury that it would prove Kleypas murdered C.W. in order to avoid arrest and prosecution.

“I will ask you to consider the confession of the defendant and remember he says he was sitting on the bed, [C.W.] is tied to the chair, the defendant stated that [C.W.] knew him, knew him as the guy who lived in the big green house and the defendant knew that if he let [C.W.] live that she could tell the police. So the defendant made a choice and he made a choice to avoid arrest and prosecution.”

In its closing statement, the State argued:

*1020 “The State in this case has proven three aggravating circumstances beyond a reasonable doubt. One of these is that the defendant committed the crime in order to avoid lawful arrest or prosecution. And you remember the evidence on this. The defendant going to the house of [C.W.] undisguised, going to the home of the neighbor who was sure to and, in fact, did recognize him.

“Remember the defendant’s own words about being recognized. She knew me. I knew she knew me. She didn’t recognize me personally but she recognized who I was. She made a comment to me about living in the house I live in. She only lived two houses down from me. These were the defendant’s words about being recognized and he knew when he went there he would be recognized. He also knew that after he attempted to rape her that he got up and walked away he would be arrested and prosecuted.

“So he made a choice and he killed [C.W.] to avoid that. He sat there for several minutes as he told you when he made his choice. And his choice was to kill [C.W.] so that he would have a better chance of getting away. He started tying her up and then he told us he sat on the bed and thought about it. And he made that choice so that just a little bit longer he could prevent a lawful arrest and prosecution. And the evidence of this is clear not only by the defendant’s own actions and words and not only by what he did to [C.W.] that night but what he did afterwards. He loaded up his truck, taking evidence of the murder with him and he fled town. He took off, he ran and he killed [C.W.] so that he could avoid arrest. There is no other conclusion that can be reached from this evidence.”

Kleypas did not object to these comments or address the aggravators in his opening or closing arguments during the penalty phase.

Kleypas contends there are only two pieces of evidence offered by the State to support the avoid arrest aggravating factor: (1) The victim knew Kleypas and could identify him to police, and (2) Kleypas left the state after committing the crime. Kleypas, however, mischaracterizes the State’s evidence.

The State relied heavily on testimony of KBI Agent Williams which recalled Kleypas’ confession during the ride in the patrol car back to Kansas. In it, Kleypas related the following events which occurred on the night of the murder. Kleypas, once inside the house, forced C.W. to her bedroom at knife point. He forced her to undress and attempted to have intercourse with her. When he failed to get an erection, he penetrated her with his fingers. He allowed her to dress. C.W. asked him to leave. She said if he would leave she would give him a head start before she called the police. *1021 He said she recognized him as the man who lived in the green house down the street.

According to Agent Williams, Kleypas confessed that he tied C.W. to a chair and that she started to panic. Kleypas unplugged the phone. After he tied her, he sat on the bed for a period of time thinking about his next action. She got loose from her binding to the chair, and he tried to strangle her. He tried to suffocate her with the sock but was unsuccessful. Kleypas stated that he then stabbed her repeatedly in the chest.

B. Evidence that the Victim Could Identify Kleypas

Kleypas argues that the “simple statement that the victim knew him” provided in his confession "‘hardly constitutes such overwhelming proof of his motive for murder.” He also asserts that “the State’s evidence was no stronger than in the "average’ murder case — the victim could have given the police a description of her attacker.”

Kleypas cites Florida law for the proposition that the mere fact the victim knew and could identify the defendant, without more, is insufficient to prove the avoid arrest aggravator beyond a reasonable doubt. In Geralds v. Florida, 601 So. 2d 1157 (Fla. 1992), the defendant was a carpenter remodeling the victim’s house. He was convicted of capital murder after the victim was found beaten and stabbed and the house robbed. The Florida Supreme Court upheld the conviction but vacated and remanded the sentence based on the prosecutor’s improper introduction of Geralds’ extensive criminal history during the penalty phase. 601 So. 2d at 1161-62. For the benefit of the district court at resentencing, the Florida Supreme Court stated:

“Likewise, we agree with Geralds that the State has failed to prove the existence of the aggravating circumstance of witness elimination beyond a reasonable doubt. The trial court found as follows:

‘The evidence establishes that the defendant had worked around the victim’s home and was known by the victim, the victim’s spouse and her children. The evidence established that the defendant had spoken with the victim and her two children the week prior to the murder and at that time sought out information concerning the family’s time schedule and the fact' that the victim’s husband would be out of town on the date the crime was committed. The *1022 evidence is clear to establish that the victim could have identified the defendant if she had survived the beating she was subjected to and the stabbing that occurred during the course of the robbery and burglary.’

“We have repeatedly held that the avoiding arrest aggravating factor is not applicable unless the evidence proves that the only or dominant motive for the killing was to eliminate a witness. [Citations omitted.] The mere fact that the victim knew and could identify the defendant, without more, is insufficient to prove this aggravating factor beyond a reasonable doubt.” 601 So. 2d at 1164.

Other Florida cases have also recognized that the mere fact that the witness knew and could identify the victim, without more, is not sufficient to prove the “avoid arrest” aggravating factor. See Jackson v. Florida, 599 So. 2d 103, 109 (Fla. 1992); Bruno v. Florida, 574 So. 2d 76, 81-82 (Fla. 1991); Hansbrough v. Florida, 509 So. 2d 1081, 1086 (Fla. 1987).

In State v. Spain, 269 Kan. 54, 60, 4 P.3d 621 (2000), we considered the avoid arrest aggravator in the hard 40 context, specifically rejecting the notion espoused by the Florida cases cited by Kleypas that the avoid arrest aggravator applies only in those cases where witness elimination is the dominant or only motive for the murder. Instead, we held that the State must show that a motive— not the dominant or only motive — for the murder was to avoid prosecution. 263 Kan. at 719.

Here, the evidence at trial showed that C.W. did not see Kleypas for the first time on the night she was murdered. KBI Agent Williams testified that Kleypas said C.W. recognized Kleypas as the man who lived in the green house. She did not, as Kleypas suggests, merely observe him as he attacked her. C.W. had seen Kleypas before and recognized him as a man who lived in a specific house in her neighborhood. C.W. knew her attacker and would have been able to provide a solid identification of Kleypas in a subsequent prosecution. This constitutes substantial evidence that Kleypas murdered C.W. to avoid arrest or prosecution.

C. Evidence that Kleypas Fled the State

Kleypas argues that the State told the jury that it could rely on evidence of his flight from Crawford County as evidence that he killed C.W. in order to avoid arrest or prosecution. He argues that evidence he sought to avoid arrest after the murder may not be *1023 considered as an indicator of his motives at the time of the murder because to do so would unconstitutionally broaden the definition of the avoid arrest aggravator. Kleypas argues that if the avoid arrest aggravator is applied to situations where a defendant flees the scene of a crime, the aggravator would apply in virtually eveiy death penalty case because “[v]ery few capital defendants wait at the crime scene for the authorities to apprehend them.”

To pass constitutional scrutiny, an aggravating circumstance must channel the discretion of the sentencer with clear and objective standards which provide specific guidance and make possible a rational review of the process of sentencing a defendant to death. Lewis v. Jeffers, 497 U.S. 764, 774, 777-78, 111 L. Ed. 2d 606, 110 S. Ct. 3092 (1990). An aggravating circumstance must not apply to every defendant convicted of murder but only to a subclass of that larger group. Tuilaepa v. California, 512 U.S. 967, 972, 129 L. Ed. 2d 750, 114 S. Ct. 2630 (1994). If the sentencer could fairly conclude that an aggravating circumstance applies to every defendant convicted of murder, the circumstance is unconstitutionally broad and thus invalid. Arave v. Creech, 507 U.S. 463, 474, 123 L. Ed. 2d 188, 113 S. Ct. 1534 (1993).

Other courts have determined that the avoid arrest aggravator on its face is not unconstitutionally vague or overbroad. See, e.g., Toles v. Oklahoma, 947 P.2d 180, 192 (Okla. Crim. 1997), cert. denied 524 U.S. 958 (1998); Wike v. Florida, 698 So. 2d 817, 822 (Fla. 1997), cert. denied 522 U.S. 1058 (1998); Whitmore v. Lockhart, 834 F. Supp. 1105, 1118 (E.D. Ark. 1992).

Kleypas advances two cases in support of his assertion that the avoid arrest aggravator is unconstitutionally broad as applied in this case. First, in North Carolina v. Williams, 304 N.C. 394, 424-25, 284 S.E.2d 437, cert. denied 456 U.S. 932 (1981), the North Carolina court held that there was not sufficient evidence to support the avoid arrest aggravator based on the mere fact that defendant told his accomplice that he wanted to leave the scene of the murder at a slow rate of speed in order to avoid arousing suspicion. 304 N.C. at 425. The court concluded:

“This single statement by the defendant occurred after the killing and at that point it was extremely likely that the statement reflected defendant’s wish to avoid *1024 detection for the killing. However, such a statement cannot raise a reasonable inference as to his motivation before or at the time of the killing. It is a post-killing expression evidencing an after-the-fact desire not to be detected or apprehended. In our opinion, it does not raise a reasonable inference that at the time of the killing defendant killed for the purpose of avoiding lawful arrest.” 304 N.C. at 425.

In the second case, Kormondy v. Florida, 703 So. 2d 454 (Fla. 1997), the trial court admitted evidence that Kormondy, while in jail, said he would kill two other people, one of whom witnessed the murder committed by Kormondy. Kormondy argued on appeal that the evidence was prejudicial and not relevant to proving an aggravating circumstance. The State argued that the evidence was relevant to show that Kormondy committed the murder to avoid arrest. The Florida court disagreed, stating:

“In the circumstances attending this case, we cannot find that a statement allegedly made in jail (after the relevant criminal episode) as to a future intent to kill sheds any light on Kormondy’s intent at the time of the crime. . . . His sentiment about future killings seems to have arisen after capture. It is simply too prejudicial to allow such speculative evidence to prove Kormondy’s intent at the time of the shooting.” 703 So. 2d at 462-63.

Unlike Williams, 304 N.C. 394, and Kormondy, 703 So. 2d 454, the State in this case anchored its argument on the evidence that C.W. knew Kleypas and that Kleypas spent time after the attempted rape, in the presence of C.W., considering his options. While the State referenced Kleypas’ flight after the murder, it did so only in the last two sentences of its argument. The State’s argument was based on the evidence that C.W. knew Kleypas and that he spent time after the attempted rape deliberating this fact, considered his options, and stabbed C.W. to death.

Kleypas’ attack on the constitutionality of the statute as applied is nothing more than a rehash of his argument that the State misinformed the jury about the nature of the evidence available to prove the existence of the aggravating circumstance. This question will be addressed in our discussion of prosecutorial misconduct, and we will not further discuss it here.

After a review of all the evidence, viewed in the light most favorable to the prosecution, we determine that a rational factfinder *1025 could have found the existence of the aggravating circumstance beyond a reasonable doubt. Kleypas knew that C.W. recognized him as a neighbor who lived on her street. After he attempted to rape her and tied her to a chair, he paused to consider his next action. He unplugged the telephone. When she attempted to escape he killed her. Based on this evidence, a rational factfinder could have found beyond a reasonable doubt that Kleypas murdered C.W. in order to avoid arrest or prosecution.

Issue 25. Constitutional Challenge to the Definition of the Heinous, Atrocious, or Cruel Manner Aggravating Circumstance

Kleypas contends that the instruction defining the heinous, atrocious, or cruel manner aggravating circumstance as used in Kansas violates the Eighth and Fourteenth Amendments to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights because it is unconstitutionally vague and fails to narrow the class of persons eligible to receive the death penalty.

The Eighth and Fourteenth Amendments of the United States Constitution require that a capital sentencing scheme direct and limit the discretion of the sentence “ ‘so as to minimize the risk of wholly arbitrary and capricious action.’ ” Lewis v. Jeffers, 497 U.S. at 774. The scheme must “channel the sentencer’s discretion by ‘clear and objective standards’ that provide ‘specific and detailed guidance,’ and that ‘make rationally reviewable the process for imposing a sentence of death.’ ” Godfrey v. Georgia, 446 U.S. 420, 428, 64 L. Ed. 2d 398, 100 S. Ct. 1759 (1980).

Where a jury is the final sentencer, as it is in this case, it is essential that the jurors be properly instructed regarding all facets of the sentencing process; it is insufficient to instruct the jury in the bare terms of an aggravating circumstance that is unconstitutionally vague on its face. Walton v. Arizona, 497 U.S. 639, 653, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990). When the statutory language defining an aggravating circumstance is challenged as unconstitutionally vague, this court must first determine whether the statutory language defining the circumstance is too vague to provide any guidance to the sentence. If so, the court must consider *1026 whether the state court has applied a narrowing construction to define the vague terms in a constitutional manner. 497 U.S. at 654.

K.S.A. 21-4625(6) states as an aggravating circumstance that “the defendant committed the crime in an especially heinous, atrocious and cruel manner.” The jury instruction regarding this aggravating circumstance stated that the jury must find

“[tjhat the defendant committed the crime in an especially heinous, atrocious or cruel manner. The term ‘heinous’ means extremely wicked or shockingly evil; ‘atrocious’ means outrageously wicked and vile; and ‘cruel’ means pitiless or designed to inflict a high degree of pain, utter indifference to, or enjoyment of the sufferings of others.

“A crime is committed in an especially heinous, atrocious, or cruel manner where the perpetrator inflicts serious mental anguish or serious physical abuse before the victim’s death. Mental anguish includes a victim’s uncertainty as to his or her ultimate fate.”

This instruction was taken from PIK Crim. 3d 56.00-C.

The United States Supreme Court has found language similar to that used in the first paragraph in the instruction to be unconstitutionally vague. See Maynard v. Cartwright, 486 U.S. 356, 364, 100 L. Ed. 2d 372, 108 S. Ct. 1853 (1988); Shell v. Mississippi, 498 U.S. 1, 112 L. Ed. 2d 1, 111 S. Ct. 313 (1990). In Maynard, the Court found that the phrase “especially heinous, atrocious, or cruel” does not give sufficient guidance because an ordinary person could honestly believe that every unjustified, intentional taking of fife is especially heinous. 486 U.S. at 364. In Shell, the Court found that the addition of the phrase “ ‘[T]he word heinous means extremely wicked or shockingly evil; atrocious means outrageously wicked and vile; and cruel means designed to inflict a high degree of pain with indifference to, or even enjoyment of the suffering of others’ ” failed to cure the constitutional defect. 498 U.S. at 1; 498 U.S. at 2 (Marshall, J., concurring).

This court recognized the problem with vagueness in connection with the first paragraph of our jury instruction in State v. Willis, 254 Kan. 119, 130-31, 864 P.2d 1198 (1993). In order to address this problem, we added the second paragraph to the instruction, adopting the language from that approved by the United States Supreme Court in Walton v. Arizona. Willis, 254 Kan. at 131.

*1027 In Walton, the Arizona Supreme Court had defined the phrase "especially cruel” in its “especially heinous, cruel or depraved” aggravating factor as follows: “ ‘A crime is committed in an especially cruel manner when the perpetrator inflicts mental anguish or physical abuse before the victim’s death’ and that ‘[m]ental anguish includes a victim’s uncertainty as to his ultimate fate.’ ” 497 U.S. at 654. The United States Supreme Court stated:

“Recognizing that the proper degree of definition of an aggravating factor of this nature is not susceptible of mathematical precision, we conclude that the definition given to the especially cruel’ provision by the Arizona Supreme Court is constitutionally sufficient because it give meaningful guidance to the sentencer.” 497 U.S. at 655.

Kleypas argues that this court’s adoption of the Walton language does not solve the vagueness problem because the court failed to adopt the five-factor test allegedly employed by Arizona courts to further define the aggravating factor. Kleypas contends that in Arizona once a crime satisfies die mental anguish or physical abuse requirement, the sentencing judge must then find the existence of one or more of the following factors: (1) the killer’s apparent relishing of the murder; (2) the infliction of gratuitous violence on the victim; (3) the needless mutilation of the victim; (4) the senselessness of the crime; and (5) the helplessness of the victim (citing Arizona v. Gretzler, 135 Ariz. 42, 51-53, 659 P.2d 1 [1983]).

Kleypas’ interpretation of Gretzler and of the Arizona sentencing scheme is incorrect. In Arizona, the three terms “cruel,” “heinous,” and “depraved” are phrased in the disjunctive, so either all or one could constitute an aggravating circumstance. Gretzler, 135 Ariz. at 51. In order to be committed in a cruel manner, the murder must have involved the infliction of physical or mental pain on the victim. 135 Ariz. at 50-51. This was the aggravating circumstance at issue in Walton. See 497 U.S. at 654. In order to be committed in a heinous or depraved manner, the murder must satisfy one or more of the five factors outlined above. Gretzler, 135 Ariz. at 51-53. Thus, the factors cited by Kleypas are not factors which further narrow a finding that the crime involved the infliction of physical or mental abuse but rather alternatives that allow the jury to find the aggravating factor.

*1028 Kansas, unlike Arizona, applies the language of the Arizona definition of cruel to the entirety of the phrase “especially heinous, atrocious or cruel.” Thus, in order to find that a murder is committed in an especially heinous, atrocious, or cruel manner, the jury, must find that the perpetrator inflicted mental anguish or physical abuse before the victim’s death. In that respect, the Kansas scheme is nearly identical to that used by Oklahoma post-Maynard, 486 U.S. 356. In Nuckols v. Oklahoma, 805 P.2d 672, 674-75 (Okla. Crim. 1991), the Oklahoma Court of Criminal Appeals addressed OUJI-CR No. 436, which is virtually identical to PIK Crim. 3d 56.00-C except that the second paragraph states: “The phrase ‘especially heinous, atrocious, or cruel’ is directed to those crimes where the death of the victim was preceded by torture of the victim or serious physical abuse.” In Nuckols the court found that this instruction contemplates a two-step analysis. First, the jury must find that the death was preceded by torture or serious physical abuse, and once that category had been constitutionally narrowed, the jury would then apply the definitions of “heinous,” “atrocious,” or “cruel” to determine if the defendant would receive the death penalty. 805 P.2d at 674. The court concluded that the instruction passed constitutional muster.

Kleypas argues that the second paragraph of the Kansas instruction does not narrow the class of death eligible defendants as does the second paragraph of the Oklahoma statute. Kleypas contends that instead, the second paragraph of the PIK Crim. 3d 56.00-C(6) which states that “[a] crime is committed in an especially heinous, atrocious, or cruel manner where the perpetrator inflicts serious mental anguish or serious physical abuse before the victim’s death” merely gives an example of tire type of conduct that would qualify as heinous, atrocious, or cruel rather than restricting the aggravator to this conduct. Kleypas contrasts this with the Oklahoma instruction which states that the phrase is “directed” to such crimes. See OUJI-CR No. 436. However, a review of the language of the jury instruction in this case leads to the conclusion tíiat the second paragraph is clearly intended to be a narrowing definition rather than an example, and we conclude that the narrow definition is neither confusing nor misleading.

*1029 Kleypas also argues that the second paragraph is vague because it does not instruct the juiy that Kleypas must have intended to cause the physical or mental harm, is not limited to those acts over and above those necessary to cause death, and does not inform the jury that the physical abuse cannot include acts performed after the victim loses consciousness. However, none of these elements are mandated by the Constitution. Instead, the crucial question is whether the definition adequately narrows the class of persons who are death eligible by providing a principled basis for doing so. Arave v. Creech, 507 U.S. at 474.

The Kansas definition of “heinous, atrocious or cruel” is similar to the Arizona definition of “cruel” which was explicitly held to be sufficient under the Eighth and Fourteenth Amendments. Walton, 497 U.S. at 655. We conclude that the Kansas definition of “heinous, atrocious or cruel” narrows the class of persons who are death eligible defendants in a manner which complies with the requirements of the Eighth and Fourteenth Amendments to the United States Constitution.

Issue 26. Proportionality of Sentence

Kleypas argues that our state constitution, our death penalty statute, and Kansas case law require this court to conduct a proportionality analysis of his sentence. This analysis will, according to Kleypas, require this court to set his sentence aside when it is compared with other sentences in Kansas for similar crimes. We do not address the merits of his claim based upon our conclusion that neither the state nor federal Constitution require this court to engage in a proportionality analysis of his sentence. Further, nothing in our state law requires such a review.

Traditionally, “proportionality” has been used to compare the gravity of the offense against the severity of the penalty, to compare a sentence imposed to other sentences for similar crimes, and to evaluate sentencing practices in other jurisdictions. Pulley v. Harris, 465 U.S. 37, 43, 79 L. Ed. 2d 29, 104 S. Ct. 871 (1984). The federal Constitution does not require that this court or any other Kansas court compare a defendant’s sentence with other sentences *1030 imposed in this or any other state for similar crimes. 465 U.S. at 43-44.

Kleypas, however, argues that the following language in the Kansas Constitution compels such a review:

“All persons shall be bailable by sufficient sureties except for capital offenses, where proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.” Kan. Const. Bill of Rights, § 9.

Kleypas emphasizes the difference in language between the Kansas and federal Constitutions. He places great weight upon the disjunctive “or” between “cruel” and “unusual.” He argues that an “unusual” sentence implies a disproportionate sentence. Thus, according to Kleypas, § 9 of the Kansas Constitution Bill of Rights requires this court to conduct a proportionality review in order to determine whether his sentence is “unusual” as compared to those imposed in other cases.

In a similar vein, Kleypas turns to the language of K.S.A. 21-4627(c)(1): “With regard to the sentence, the court shall determine . . . [wjhether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor.” Kleypas focuses on the phrase “or any other arbitrary factor,” claiming that the language alludes to a proportionality review. In support of his contention, Kleypas cites District Attorney for the Suffolk District v. Watson, 381 Mass. 648, 411 N.E.2d 1274 (1980). In Watson, the Massachusetts capital sentencing scheme at issue required in part that the appellate court review a sentence of death to determine whether “ "the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor ” and also required the appellate court to perform a proportionality review — to include in its decision “ ‘a reference to similar cases which it took into consideration’ ” extracted from records of other death penalty cases accumulated by the executive secretary to the justices of the state’s high court. 381 Mass. at 654.

Watson held the Massachusetts death penalty scheme to be cruel or unusual punishment as defined by the state bill of rights because it offended contemporary standards of decency and was, as a his *1031 torical matter, arbitrarily inflicted. 381 Mass, at 660-61, 665. Based on its decision, the court in Watson did not consider the question of whether the statutory scheme required proportionality review. The Massachusetts statute specifically required the court to compare and reference sentences in similar cases and included a mechanism for collection of sentencing information for use by the court. The Kansas statutory scheme has no such provisions. Thus, Watson is of little value to Kleypas’ argument.

Finally, Kleypas argues that Kansas case law suggests this court has been willing to conduct a proportionality review in criminal cases, absent statutory mandate, when the issue is raised on appeal from a sentence. In State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978), Freeman was convicted of second-degree murder in the death of her abusive husband. She received the minimum sentence but was denied probation pursuant to statute. Freeman attacked the operation of the statute as cruel and unusual punishment. 223 Kan. at 363.

This court set forth three criteria for evaluating whether the length of a sentence offends the constitutional prohibition against “cruel punishment.”

“(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;

“(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and

"(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.” (Emphasis added.) 223 Kan. at 367.

While relevant, Freeman fails for several reasons to support Kleypas’ argument for proportionality review. First, the Freeman factors are designed to test whether a sentence constitutes cruel or unusual punishment in violation of § 9 of the Kansas Constitution Bill of Rights. They are clearly not designed as a mechanism for proportionality review. Second, Freeman tested the length— not the nature — of the sentence imposed. Third, the second Free *1032 man factor requires comparison of the punishment with punishments imposed in this state for more serious crimes, not the same or similar crimes, and not the actual punishments imposed on a case-by-case basis but the punishments set forth by statute. Indeed, Freemans application of this second factor consisted of considering whether in Kansas a crime of greater severity level than Freeman’s carried a less severe punishment. 223 Kan. at 368.

Kleypas points out that this court recently applied Freeman in State v. Tyler, 251 Kan. 616, 840 P.2d 413 (1992). However, in Tyler we pointed out that the Eighth Amendment to the federal Constitution does not carry a proportionality guarantee. We considered the Freeman factors in evaluating Tyler’s claim under § 9 of the Kansas Constitution Bill of Rights, and stated:

“After a review of the record and considering the nature of Tyler’s offenses we find his sentence is not grossly disproportionate to his crimes in violation of § 9 of the Kansas Constitution Bill of Rights. The sentence imposed is within the limits proscribed by law and we find it is not a product of partiality or prejudice.” 251 Kan. at 647.

Thus, Tyler limits the application of Freeman and provides little if any support for Kleypas. Tyler involved the issue of proportionality only in the context of whether Tyler’s sentence was proportionate to his crimes. There was no comparison of Tyler’s sentence to those of others convicted of the same or a similar crime. Further, Tyler complained of the length, not the nature, of his sentence.

Finally, this court severely limited the application of the Freeman factors in State v. Scott, 265 Kan. 1, 961 P.2d 667 (1998). Scott claimed the public access provisions of the Kansas Sex Offender Registration Act constituted cruel and unusual punishment. 265 Kan. at 2. The Court of Appeals applied the Freeman factors and held the Act violated the state constitution. On petition for review, this court considered the claim in the context of the federal and state Constitutions, noting that it had the right to interpret the Kansas Constitution differently from the federal Constitution but that it has not traditionally done so. 265 Kan. at 5. We observed in Scott that the proportionality test incorporated in the second Freeman factor had since been discredited by the United States Supreme Court, limiting application of the Freeman test to instances *1033 where the length of a sentence was challenged. 265 Kan. at 8. We stated:

“While there may still be instances where the Freeman test should be applied, we will not apply it precisely here where the method of punishment, rather than the length of a sentence, is challenged as cruel or unusual. Neither this court nor die [United States] Supreme Court has applied such test outside of die length of sentence context. [Citation omitted.] We may look to some of die Freeman factors in our analysis, but our basic question is whether die public access provisions of the KSORA render punishment so barbarous and contrary to human dignity that it shocks our conscience.” 265 Kan. at 9.

Kleypas also points out that the Freeman test has been used by this court in State v. McCloud, 257 Kan. 1, 5-6, 891 P.2d 324, cert. denied 516 U.S. 837 (1995) (length of sentence which was within statutory limits, not cruel or unusual); and State v. McDaniel & Owens, 228 Kan. 172, 185, 612 P.2d 1231 (1980) (Freeman test upheld for state constitutional analysis; sentences held not excessive or disproportionate); and a form of it used in State v. Strauch, 239 Kan. 203, 220, 718 P.2d 613 (1986) (criteria to consider when determining whether punishment is disproportionate to crime are “excessiveness, disproportionality, lack of necessity, unacceptability to society and arbitrariness of infliction”). He also contends that this court engaged in a proportionality review of the sentences of codefendants in State v. Bailey, 251 Kan. 527, 834 P.2d 1353 (1992).

All of the above cases dealt with complaints regarding the length, not the nature, of the sentences. Scott holds that the Freeman factors are to be applied only in evaluating the length of a sentence. Even so, the Freeman factors do not suggest a comparison of Kleypas’ sentence with those imposed on other defendants in this state convicted of the same or similar crimes. Kansas case law simply does not mandate proportionality review as requested by Kleypas.

We hold that neither the Kansas Constitution, the Kansas death penalty statutes, nor Kansas case law requires that a defendant’s sentence be subjected to a proportionality review which compares the defendant’s sentence with those imposed on other Kansas defendants for the same or similar crimes.

*1034 Issue 27. Constitutionality of Upward Departure for Conviction of Aggravated Burglary

Kleypas next argues that the trial court erred in imposing an upward durational departure sentence for his conviction of aggravated burglary. The trial court imposed an upward durational departure sentence of 68 months rather than the presumptive sentence for aggravated burglary of 31 to 34 months indicated by Kleypas’ criminal history. This departure was based on (1) the excessive brutality of the crime and (2) the obsessive pursuit and/or stalking of the victim.

Based on the United States Supreme Court opinion in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and our opinion in State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), it is clear that Kleypas’ departure sentence for aggravated burglary must be vacated and the matter remanded for re-sentencing.

Issue 28. Instruction on Mercy

Kleypas argues that his constitutional rights were violated by the trial court’s failure to properly instruct the jury on the exercise of mercy. The trial court submitted Instruction No. 13 to the jury during the sentencing phase as follows:

“Mitigating circumstances are those which in fairness may be considered as extenuating or reducing the degree of moral culpability or blame or which justified a sentence of less than death, although it does not justify or excuse the offense. The determination of what are mitigating circumstances is for you as jurors to resolve under the facts and circumstances of this case.

“The appropriateness of the exercise of mercy can itself be a mitigatingfactor you may consider in determining whether the State has proved beyond a reasonable doubt that the death penalty is warranted.” (Emphasis added.)

The instruction also lists 31 mitigating factors put forth by Kleypas for the jury’s consideration as well as the general statement that any other mitigators may be considered. The language precisely tracks that contained in PIK Crim. 3d 56.00-D.

During closing, Kleypas’ attorney explained to the jury at length the function and availability of mercy during the sentencing phase:

*1035 “Mitigating circumstances are those facts for you which in fairness and mercy and that is the law, the law of this land in fairness and mercy make you believe that this man should not be killed, that he should be in prison. Look at instruction number 13. Mitigating circumstances are those which in fairness may be considered as extenuating or reducing the degree of moral culpability, that is part of it, or blame or which justify a sentence of less than death, which justified a sentence of less than death although it does not justify or excuse the offense.

“. . . It is something for you to consider in your heart in deciding whether to exercise fairness and mercy in this case and, in fact, you get a specific statement of the law on down in that instruction 13. The appropriateness of the exercise of mercy, mercy can itself be a mitigating factor you may consider in deciding whether this man seated over here should be killed or in prison. That is what the law says, fairness and mercy. ... I looked up the word mercy in the dictionary and there is other places where the word mercy appears. But in the dictionary one of the definitions is compassion or forbearance shown to an offender.

“You know what another actual definition B in Webster’s dictionary is imprisonment rather than death imposed as a penalty for murder. Compassion or forbearance for an offender. That is what the law says. The law says that is a valid mitigator. If you decide that your heart telk you to exercise mercy, compassion or forbearance, fairness, then that is right. If you believe that that is a reason for you not to kill Gary Kleypas, not to vote for the execution of Gary Kleypas, then you have found that a mitigator outweighs the aggravators.” (Emphasis added.)

If the challenged instruction properly and fairly states the law as applied to the facts in the case, and if the jury could not reasonably have been misled by it, the instruction does not constitute reversible error. State v. Alexander, 268 Kan. 610, 613, 1 P.3d 875 (2000).

“The use of PIK instructions is not mandatory but is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction, or the addition of some instruction not included in PIK, the trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed. [Citation omitted.].” State v. Franklin, 264 Kan. 496, 505, 958 P.2d 611 (1998).

Kleypas argues that while the instruction introduces the concept of exercising mercy to the jury, it does so in a legally insufficient manner. Kleypas argues that mercy, if it is to be exercised, must be exercised only after the jury has weighed aggravating and mit *1036 igating circumstances and determined that a sentence of death is warranted. According to Kleypas, only after the jury has decided that Kleypas should be put to death can it truly exercise mercy and instead impose a nondeath sentence, thus mercy itself should not be characterized as a mitigator.

Kleypas’ arguments are unfocused. He supports them by citing cases upholding the right to trial by jury under the state constitution, treatises expounding upon the common-law tradition of the exercise of mercy by juries, and out-of-state cases purporting to recognize “the fallibility of legal rules designed to guide the jury’s discretion in deciding a capital defendant’s punishment.” The cases cited stand for no such thing and are not helpful to Kleypas’ argument.

As noted above, the United States Supreme Court has held that the Eighth Amendment requires two things of a death sentence: (1) The sentencer must not have unbridled discretion in determining the fate of the defendant, and (2) the defendant must be allowed to introduce any relevant mitigating evidence of his character or record or circumstances of the offense. California v. Brown, 479 U.S. 538, 541, 93 L. Ed. 2d 934, 107 S. Ct. 837 (1987). A mercy instruction per se is simply not required as part of this equation by federal or state law, nor is a specific type of mercy instruction.

The trial court provided the PIK instruction which incorporated the concept of mercy into the jury’s consideration of mitigating factors. Kleypas fails to show how the instruction was not adequate to inform the juiy of its option to exercise mercy or how the trial court otherwise failed to permit the jury to exercise mercy. We conclude that Instruction No. 13 properly and fairly stated the law as applied to the facts and that the jury could not have been misled by the instruction given.

Issue 29. Standard for Admission of Evidence During the Penalty Phase

Kleypas argues that the standard for admission of evidence during the sentencing phase set forth in K.S.A. 21-4624(c) violates the heightened reliability requirements for capital sentencing as guar *1037 anteed by various provisions of the state and federal Constitutions. We reject this argument and find that the standard for admission satisfies the Eighth Amendment.

K.S.A. 21-4624(c) states:

“In the sentencing proceeding, evidence may be presented concerning any matter that the court deems relevant to the question of sentence and shall include matters relating to any of the aggravating circumstances enumerated in K.S.A. 21-4625 and amendments thereto and any mitigating circumstances. Any such evidence which the court deems to have probative value may be received regardless of its admissibility under the rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements. Only such evidence of aggravating circumstances as the state made known to the defendant prior to the sentencing proceeding shall be admissible, and no evidence secured in violation of the constitution of the United States or of the state of Kansas shall be admissible. No testimony by the defendant at the sentencing proceeding shall be admissible against the defendant at any subsequent criminal proceeding. At the conclusion of the evidentiary presentation, the court shall allow the parties a reasonable period of time in which to present oral argument.”

With regard to this standard, Kleypas raises two arguments: (1) Relaxation of the rules of evidence at the penalty phase of a capital trial may apply only to evidence offered in support of mitigating, not aggravating, circumstances; and (2) the absence of a requirement that the court weigh the probative value of the evidence sought to be admitted against its prejudicial effect is a fatal flaw which renders the statute unconstitutional. Kleypas relies heavily on a pair of related cases to support his arguments: Washington v. Bartholomew (Bartholomew I), 98 Wash. 2d 173, 654 P.2d 1170 (1982); Washington v. Bartholomew (Bartholomew II), 101 Wash. 2d 631, 683 P.2d 1079 (1984).

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