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Date: 01-19-2024

Case Style:

State of Kansas v. KYLE TREVOR FLACK

Case Number: No. 115,964



Plaintiff's Attorney: Kristafer R. Ailslieger, deputy solicitor general, and Natalie Chalmers, assistant solicitor general,
argued the cause, and Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, were with them on the briefs for appellee

Defendant's Attorney: Alice Craig, of Lawrence, was on the brief for amici curiae Midwest Innocence Project, joined by Witness to Innocence and Floyd Bledsoe

Clayton J. Perkins, of Capital Appellate Defender Office, argued the cause, and Meryl CarverAllmond, of the same office, and Debra J. Wilson and Reid T. Nelson, of Capital Appeals and Conflicts
Office, were with him on the briefs for appellant.

Description: Ottawa, Kansas, criminal defense lawyer presented the Defendant charged with first-degree murder, second-degree murder and felony possession of a firearm.

In 2013, Andrew Stout and two friends, including Steven White, lived at Stout's
house in rural Franklin County. Flack, another friend of Stout's, occasionally spent time
there. Flack brought a shotgun with him everywhere, usually keeping it in a black duffel
bag, and even slept with it nearby. Stout was dating K.B. and intended for the friends to
move out by May 1, so she and her 18-month-old daughter, L.B., could move in.
After not hearing from Stout, on May 6, some concerned friends went to his home
to look for him. While checking an outbuilding near the house, they discovered a body
under a tarp, later identified as White. They called 911. Investigators found two more
bodies in the house, later identified as Stout and K.B. The investigators suspected Flack,
who they located in Emporia at a friend's apartment. Officers arrested him shortly after
midnight on May 8, and read him his Miranda rights. They searched the Emporia
apartment, finding a black duffel bag. It contained a shotgun cleaning kit, a roll of duct
tape, and zip ties.
Flack provided his versions of events to detectives twice after his arrest. His story
evolved during those interviews. The first started around 3:30 a.m. on May 8 in Emporia.
By that time, officers had identified White's body in the outbuilding but not the two in the
master bedroom. They considered L.B., the child, to be missing.
First interview
In what the State depicts as Flack's first of eight versions of events, he claimed to
last see Stout, K.B., and L.B. on April 27 at Stout's house. He said Stout and K.B.
planned to go bowling after Flack and Stout bought cigarettes. Flack claimed they
separated in Pomona, where his friend, Kenneth Douglas, picked him up and drove him
to Emporia.
As details emerged, so did inconsistencies. Flack said he and Stout went to Ottawa
before Pomona. Stout dropped him off at the Pomona Dollar General, and Flack then
went to a nearby cemetery with two women, who later took him to Ottawa. From there,
his stepbrother picked him up, and he slept on the stepbrother's couch that night. He did
nothing the next day, April 28, other than walk around Pomona.
Then, Flack said he went to Emporia on April 29. But before going, his stepfather
dropped him off at Stout's house, where he played video games for a half hour. At that
time, some people stopped by looking for Stout. The stepfather returned and took him to
the Pomona Dollar General, where Douglas picked him up to go to Emporia. Flack said
he stayed with Douglas while there, and he bought a new cellphone after Douglas' kids
broke his old one. He later changed that story, saying he broke the phone himself. He
acknowledged speaking to Stout's mother by both phone and text during this time.
Without prompting, Flack mentioned his shotgun, claiming Stout kept Flack's
1300 Remington in his bedroom closet. He also mentioned buying "PDX Defender"
shotgun shells from Wal-Mart a few months earlier.
Flack also claimed Stout sold marijuana, and every resident at Stout's house used
drugs. When describing White, he said White brought "tweakers" (methamphetamine
users) to Stout's and that made Stout nervous. The last time Flack saw him, White "was
fuckin' out of his mind, like been up too long, like you could see his eyes all fucking
black and sunk in." Flack got along with White, but he would not call him his "best
Flack's second version began after Detective Tammy Alexander confronted him
with other witness statements. She told Flack that Douglas denied his kids broke the
phone and said he picked up Flack in Emporia, not Pomona. Alexander told Flack the
victims were shot with a shotgun, and that "Defender" shotgun shells were at the scene;
she noted K.B.'s car was found in Emporia, where Flack had been.
Flack eventually said he was in Emporia to sell drugs. He sold "dope"
(methamphetamine) to a group of Mexicans known as the South Side Lobos. He also
claimed to work for "Omar," a bald-headed Mexican with a 13 tattooed on his chest,
whom he had met in prison. Omar, in turn, introduced Stout to "Chewie," so Chewie
could supply Stout with marijuana for dealing. Omar drove him to Emporia, and from
there Douglas picked him up. Flack appeared to be explaining why he lied about the
place where he met Douglas and attempting to align his story with Douglas'.
Flack then mentioned going to Stout's on April 29 or 30. Finding the door locked
and no one home, he walked to the outbuilding, where he noticed something unnatural
because the dog's bowl was outside and windows left open. In the outbuilding, he saw a
foot hanging out from a tarp. Not knowing what to do, he left the residence.
The conversation returned to Omar, Chewie, and Flack's Emporia business. He
described delivering drugs for Omar right after being dropped off in Emporia. He said
Omar gave him a car, telling him he could use it if needed. Seeing the car's license plate,
Flack told Alexander that in "[t]hat moment I knew it was my ass," because he realized it
was K.B.'s car. Even though he did not think it could be proven and did not know why
Omar would want to kill Stout, he said, "I guess they did it, but I don't know."
During questioning, Alexander showed Flack a mugshot and asked if he knew the
person. His answer was unclear. Alexander later testified the photo was of a longdeceased person named Omar who had been arrested in Emporia but had never been in
the Hutchison prison while Flack was there. At the end of the Emporia interview,
Alexander asked what happened to L.B. Flack told her "they . . . took the kid," and "the
dude could be a child molester." Officers then transported Flack to Ottawa, where he
rested and ate.
Second interview
The next day in Ottawa, Flack's interview began his third version. In this iteration,
he claimed Omar and Chewie killed Stout and K.B. while Flack was at the house. He did
not see L.B. that day. The murders happened a day or two before the people stopped by
Stout's and found Flack at the house alone.
On the day of the murders, Flack went to Stout's with Omar and Chewie, who
went in, while he stayed outside. Upon hearing a gunshot, he became frightened and fled.
Flack saw Omar and Chewie carry duffel bags from the house. Flack contacted his
stepfather for transportation. Flack spent time in Ottawa and Pomona before going back
to Stout's, getting K.B.'s car, and driving it to Emporia.
Later in the interview, Flack's fourth version emerged, placing himself inside the
house during the murders. According to this account, Omar, Chewie, and Flack were at
Stout's because Stout owed Omar money. All three went into the house, and, once inside,
Omar and Chewie entered Stout's bedroom with Stout and shut the door. Flack heard two
gunshots and ran out. Outside, he heard additional gunfire. Seeking cover under the front
porch, he witnessed Omar leaving with drugs and a shotgun. After Omar and Chewie left,
Flack discovered Stout's lifeless body in the bedroom under a pile of clothes. He then
took K.B.'s keys from her purse, walked to the outbuilding, and noticed another body
under a tarp. He took K.B.'s car to Ottawa, called Douglas to plan to visit Emporia, and
drove K.B.'s car to Emporia a day or two later.
Up to this point, Flack had not described White's death. That changed with his
fifth version, in which he claimed a "skinny Mexican" killed White. Based on this
version, the day White died, he met with Omar, Chewie, and the Mexican in Ottawa and
they all drove to Stout's. Omar and the Mexican went inside where Stout, K.B., and
White were. Flack and Chewie stayed outside. When Omar and the other man came back
outside, everything seemed fine. Flack thought they would leave, but Omar asked about
guns. Flack brought his shotgun outside, and the group took turns shooting it. White
came out and joined in.
After White fired the gun, he handed it to the Mexican. While the others chatted,
White and the Mexican went to the outbuilding. Flack heard a gunshot. The Mexican
came out and went into the house with Chewie. Three more gunshots were fired. The two
men came back out with a duffel bag, keys, and a wallet. They then drove back to
Ottawa, leaving Flack with K.B.'s car. Omar told him to get rid of the car.
In his sixth version, Flack told detectives he and Stout shot White in mid-April. He
claimed Stout and White argued one day about White living there rent-free. Later that
evening, Stout told Flack he did not know what to do about White. Flack told him, "[J]ust
shoot him." Stout replied, "[I]f I do that[,] I'll have to bury him." Flack told Detective
Jeremi Thompson, "[T]hat's when the joking stopped." The next day, Flack and Stout
discussed the situation again. Responding to Stout's worry, Flack told him to "just do
whatever you need to do" and that he had Stout's "back."
Not long after that, Stout asked White if he had gotten a job yet, which led to more
bickering. White went outside. Stout grabbed Flack's shotgun, and he and Flack followed
White. Stout shot White, who was in front of a car in the outbuilding. Stout gave Flack
the shotgun. Flack shot White again, which killed him. After hiding the body under a
tarp, the two went inside the house and pondered next steps while smoking marijuana.
Flack's seventh version addressed Stout's murder. Flack said after White's murder,
he got paranoid. He called Omar to see if Omar could help him leave the area. Omar
agreed but insisted on Stout returning the fronted drugs and money first. As a result,
Omar and Chewie came to Stout's to settle up. Once there, Omar and Stout began
arguing. Eventually, Omar shot Stout twice in the back. Flack claimed Omar shot Stout
two more times and then beat him with the shotgun. During the shooting, K.B. laid on the
bed with her hands tied behind her back.
Either Omar or Chewie—Flack could not remember who—thought Flack looked
stressed by what had happened, so they gave him money to buy marijuana. When he
came back, Flack found Stout dead under the clothing pile. He told the detectives Omar
gave him the shotgun and said to get rid of it. He said he broke it down and threw it into a
dumpster in Emporia.
In his eighth version, Flack described what happened to K.B. and L.B. When
Omar killed Stout, K.B. tried to run out of the room. Chewie told Flack to grab her, so he
did. Flack found zip ties in his bag, and Chewie gave him a bandana to silence K.B.
Meanwhile, L.B. entered the room. Chewie took K.B. to the living room, where he raped
Afterward, Chewie brought K.B. back to the bedroom and forced her to lie face
down on the floor. He shot K.B. with the shotgun. Chewie rolled her over next to Stout.
He and Omar started throwing clothes on the bodies. Then L.B. walked toward her
mother. Chewie shot L.B. in the back and put her into a small suitcase he found in the
bedroom. Omar and Chewie took the suitcase, drugs, and money to the car and left. They
told Flack it was "his problem" to get rid of K.B.'s car and the shotgun. Sitting on the
porch, he called his brother to figure out whether to call the police or run. He drove to
Emporia and stayed with Douglas for a few days.
The interview ended when Flack requested an attorney.
Post-interview investigation
Investigators followed up on Flack's claims he met "Omar" in prison. They
reviewed lists of inmates overlapping his time in prison, producing a few leads, but none
were "Omar." They also reviewed his phone records, identifying most calls and who was
on the other end. No calls were connected to "Omar" or "Chewie."
Emporia's city recycling center found a shotgun receiver and magazine in the trash
and notified police. Forensic testing showed they were from the same gun that fired the
shotgun shells discovered at Stout's.
On May 11, an Osage County sheriff's deputy found debris on a creek bank that
led to locating L.B.'s body, which was contained in a partially submerged black suitcase.
Cell tower data for Flack's phone established that from May 1 until the morning of
May 3, his phone did not move from the general area of Stout's house. Around 10:40
a.m., May 3, there was a single call attributed to his phone that registered on two towers,
showing Flack was about a mile-and-a-half from where police found L.B.'s body. Later
on May 3, the phone began using towers around Emporia. While there, Flack bought a
new phone, and the data showed him moving around Emporia on May 6 and May 7.
In mid-August, Flack's mother met him in jail, and the visit was recorded. Flack
told his mother, "I'm gonna end up gettin' a lotta time outta this" and "I'm not guilty of all
of it but I'm guilty." Flack also revealed he lied to police: "[D]own the line they're gonna
ask me questions like . . . who else was involved . . . . And unfortunately . . . they didn't
believe my fuckin' story. I tried tellin' 'em . . . some bullshit but they didn't—uh, they
already had so much evidence I guess."
Criminal proceedings
The State charged Flack with the capital murder of K.B. and L.B. in the same
course of conduct, first-degree murder of Stout, first-degree murder of White, criminal
possession of a firearm, and misdemeanor sexual battery of K.B. At arraignment, the
State filed notice of its intent to seek the death penalty based on five aggravators: (1)
Flack was previously convicted of attempted second-degree murder; (2) he knowingly or
purposefully killed more than one person; (3) he committed the crime to avoid or prevent
lawful arrest or prosecution; (4) he killed K.B. in an especially heinous, atrocious, or
cruel manner; and (5) he killed K.B. as a potential witness against him.
During the trial's guilt phase, the State's evidence included what is outlined above.
Its theory was that the murders occurred in large part as Flack described, but it was he,
rather than "Omar" or "Chewie," who performed the acts. Flack did not testify. The jury
found him guilty on all counts except misdemeanor sexual battery. The court accepted the
verdicts, and the State moved for a separate sentencing proceeding for the jury to
determine whether to impose a death sentence.
During the penalty phase, the State relied on its guilt-phase evidence, as well as
additional evidence. To show K.B. suffered additional mental anguish from being unable
to see, as she was not wearing her glasses at the time of her murder, the State presented
testimony—showing K.B. always needed glasses to see—and surveillance footage of
K.B. wearing glasses on the presumed date of her death. The State also introduced
evidence demonstrating Flack's previous conviction for attempted second-degree murder,
along with the journal entry for his previous conviction.
In mitigation, Flack again did not testify, instead presenting several witnesses,
including an expert on how prisoners might acclimate to prison life; a prison work
supervisor whom Flack successfully worked with in prison; Flack's parole officer, who
knew of no violations he committed since being paroled; and a supervisor at Ottawa
Sanitation, who described Flack as a good employee. He also presented evidence
showing Flack's horrific childhood of neglect and abuse. His friends and family testified
how their lives would be affected if Flack were to receive a death sentence.
Other witnesses—many of whom were experts in mental illness and its
treatment—testified about Flack's mental health struggles, including depression, anxiety,
and hallucinations. His diagnoses include major depressive disorder, schizoaffective
disorder, anxiety disorder, and antisocial personality disorder. His mental health struggles
plagued him in various ways, even to the date of trial, and would likely continue, though
less so in a structured prison environment.
The jury found the second and fourth aggravating factors existed: Flack
knowingly or purposefully murdered K.B. and L.B, and he killed K.B. in an especially
heinous, atrocious, or cruel manner. It unanimously sentenced him to death. The judge
found "that the aggravating factors totally outweighed any mitigating factors that were
provided and the evidence supports the imposition of the death penalty in this particular
case." See K.S.A. 2012 Supp. 21-6617(f). The court imposed the death penalty.
Flack directly appeals to this court. Jurisdiction is proper. K.S.A. 2022 Supp. 21-
6619(a) (permitting a death sentence to automatic review by and appeal to Supreme
Before both the preliminary hearing and trial, the State sought to admit Flack's
custodial statements to police. The defense argued against admission, claiming he
invoked his right to counsel. The court overruled his objections. Flack now argues he
invoked his right to silence through his repeated requests to be taken to jail, requiring
suppression of anything that followed.
Additional facts
When the State moved to admit Flack's custodial statements for the preliminary
hearing, it submitted testimony from the detectives who interviewed Flack. The court
found the statements voluntary. It also found his alleged requests for counsel were
equivocal and did not require the detectives to end the interview. It underscored the point
by noting Flack knew what he had to do to end the Ottawa interview by plainly stating he
wanted to talk to his attorney. This, the court held, was a clear communication the
detectives "honored."
At trial, a newly assigned judge took up the renewed motion to admit the custodial
statements for trial purposes. The State presented its witnesses again. Detective
Alexander testified she advised Flack of his Miranda rights at the first interview in
Emporia and had him sign a Miranda form. The transcript reflects his agreement to speak
to the officers:
"[Alexander]: . . . Before you're asked any questions you must be advised and
understand your rights. Number one, you have the right to remain silent. Number two,
anything you say may be used against you in a court of law. Number three, you have the
right to talk to a lawyer and have him with you while you've being questioned. Number
four, if you cannot afford to hire a lawyer, one will be appointed to represent you before
questioning if you wish. Number five, you can decide at any time to exercise these rights
and . . . not answer any questions or make any statements. . . .
"[Flack]: I have read or had read to me a statement of the rights listed above. I
understand what the rights are and I am willing to answer questions before talking to a
lawyer. I do not want a lawyer present during questioning. I understand and know what I
am doing. No promises nor threats of any kind have been made to me and no pressure or
coercion of any kind has been used against me and this statement has been made by me
"[Alexander]: If you agree to that, I'll have you sign it. All right, Kyle, you said
. . . that you were pissed off. You wanna talk to me about that?
"[Flack]: Yeah.
"[Alexander]: What are you pissed off about?
"[Flack]: 'Cause I wanna know what happened to my friend.'" (Emphases
Alexander testified she did not perceive any of his statements during the Emporia
interview as invoking his rights. She agreed that a suspect saying, "[T]ake me to jail[.]
I'm done, I'm tired of you asking the same questions," was different from asking for a
Detective Thompson testified he did not perceive Flack's statement—"'Should I
get a lawyer honestly?'"—as a request for an attorney. Instead, he took it as asking
Thompson's "opinion on what he should do." Thompson told Flack he "could not give
him legal advice." And when Flack told Thompson, "I can't tell you no more, so either do
whatever you do or I need an attorney or something because I can't tell you what I don't
fucking know," the detective took it as an "ultimatum" when Flack became frustrated
with questioning. He testified that was a consistent pattern throughout questioning:
"[A]nytime we began asking questions in regard to [L.B.], he became upset. Visibly his
face would turn red. He would clinch his fists, a couple times he hit the table."
Thompson noted the Ottawa interview ended when Flack said he could not talk to
the detective anymore and wanted his attorney. This remark, Thompson viewed, was
different because Flack's earlier mentions of an attorney were followed up by him quickly
saying he wanted to help and wanted to talk to the detectives.
The court admitted the custodial statements over the defense objection, finding
them voluntary. It also determined Flack's statements, "'[s]hould I get a lawyer
honestly?'" and "either do whatever you do or I need an attorney . . . because I can't tell
you what I don't know," were equivocal and did not invoke the right to counsel.
Flack now frames his remarks—i.e., demanding to be taken to jail—as an
invocation of his right to remain silent rather than the right to counsel. Generally, "[a]
party may not object to the introduction of testimony on one ground at trial and assert
another ground on appeal." State v. Green, 315 Kan. 178, 183, 505 P.3d 377 (2022). But
in death penalty cases, K.S.A. 2022 Supp. 21-6619(b) mandates that "we consider any
errors the parties raise on appeal, whether preserved for review or not." State v. Cheever,
295 Kan. 229, 241, 284 P.3d 1007 (2012), vacated and remanded on other grounds 571
U.S. 87, 134 S. Ct. 596, 187 L. Ed. 2d 519 (2013).
Standard of review
We are at a bit of a disadvantage in this appeal. Had Flack argued the right-toremain-silent issue before the district court, we would apply a bifurcated standard of
review. See State v. Aguirre, 301 Kan. 950, 954-55, 349 P.3d 1245 (2015) (district court's
factual finding reviewed for substantial competent evidence and its legal conclusion de
novo). But he did not, and the district court's factual findings about voluntariness and
invocation of his right to counsel minimally assist our appellate review. Regardless, the
record includes the interviews' video clips and transcripts, so we can proceed. See State v.
Kleypas, 272 Kan. 894, Syl. ¶ 5, 40 P.3d 139 (2001) (Kleypas I) ("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. An appellate court's scope of
review on questions of law is unlimited."), overruled in part on other grounds by State v.
Marsh, 278 Kan. 520, 102 P.3d 445 (2004), rev'd on other grounds by 548 U.S. 163, 169-
73, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006); see also State v. Hanke, 307 Kan. 823,
827, 415 P.3d 966 (2018) (When the material facts supporting a district court's decision
on a motion to suppress evidence are not in dispute, the ultimate question of whether to
suppress is a question of law over which an appellate court has unlimited review.).
An accused's right to remain silent during a custodial police interview arises under
both the Fifth Amendment to the United States Constitution and section 10 of the Kansas
Constitution Bill of Rights. Aguirre, 301 Kan. at 954. A suspect's invocation of the "'right
to remain silent must be scrupulously honored and cuts off further interrogation.'" 301
Kan. at 954. But law enforcement officers' duty to "scrupulously honor" a suspect's
decision to invoke their right requires the suspect's clear communication without any
ambiguity or equivocation. 301 Kan. at 957. Such an invocation requires context, as "an
invocation that is ambiguous by itself may be unambiguous when considered in
conjunction with the statements or events preceding it." United States v. Cordier, 224 F.
Supp. 3d 835, 840 (D.S.D. 2016) (relying on Smith v. Illinois, 469 U.S. 91, 105 S. Ct.
490, 83 L. Ed. 2d 488 [1984]).
Another difficulty arises because Flack does not rely on any single statement as
the invocation of his right. Instead, he argues various statements to take him to jail
aggregated unambiguously to invoke his right to remain silent. He says his "intention to
end the questioning was equally clear as he became progressively more insistent that the
questioning stop and that he be taken to jail." But "it is not his intent that matters; it is
whether his statement would have been unambiguous to a reasonable officer." Lopez v.
Janda, 742 Fed. Appx. 211, 214 (9th Cir. 2018) (unpublished opinion). In other words,
the issue is whether his communication was unambiguous to a reasonable officer, not just
him. See Aguirre, 301 Kan. at 957 (a reasonable officer's understanding matters).
Going back to the record, Flack made his remarks over about 45 minutes, with
most falling during an 18-minute span, when he grew increasingly agitated as detectives
were hesitant to believe him and countered his story with other evidence. He grew
particularly angry when they pressed him about the child's location, despite him denying
he knew anything. We address each comment below with its relevant context.
His first remark expresses his frustration at the detectives' refusal to believe him.
"[Alexander]: . . . We have your dad who's sayin' something totally different
than what you did.
"[Flack]: . . . What did he supposedly say that's different than me?
. . . .
"[Alexander]: That all the times you're sayin' you were with him is not the case.
"[Flack]: All right, whatever, so apparently we're at a stalemate so do I put these
back on and you take me somewhere or what's the deal?" (Emphasis added.)
This plainly fails to invoke a right to remain silent. Flack merely acknowledges his
version differed from his father's, and the detectives were free to not believe him. His
second comment was no different.
"I didn't do it at all. Think I'd kill my fuckin' friends? Kidnapping some fuckin'
baby, take me to jail. . . . Put these motherfuckers on me, take me where you need to do
. . . . But I didn't kill my fuckin' friends. I didn't kill them fuckin' people and I didn't
fuckin' take no baby." (Emphasis added.)
Like the first statement, Flack simply told Alexander she could believe he killed
the victims, claiming his innocence. His requests to be taken to jail after an impasse in
questioning were too ambiguous to invoke the right to silence. See, e.g., State v. Speed,
265 Kan. 26, 37, 961 P.2d 13 (1998) ("'And since we're not getting anywhere I just ask
you guys to go ahead and get this over with and go ahead and lock me up and let me go
and deal with Sedgwick County, I'm ready to go to Sedgwick County, let's go.'"); Bullitt
v. Commonwealth, 595 S.W.3d 106, 116-17 (Ky. 2019) (holding the defendant's
statement—"[I]f I'm going to jail, I'm saying, let's go, you know, that's all I'm saying, sir.
I'm innocent, I'm innocent."—did not invoke the right to silence).
His next three comments followed that same pattern, and all convey he lacked an
answer for the detective.
"[Alexander]: Where would we go to find [L.B.]?
"[Flack]: How the fuck should I know?
"[Alexander]: 'Cause you're the only one that does.
"[Flack]: You know what? [Third comment] Put these on.
"[Alexander]: You're the only—
"[Flack]: Hey—no—
"[Alexander]: —one that knows.
"[Flack]: —I ain't. I keep fuckin' tellin' you I don't know where the fuckin' baby
. . . .
"[Alexander]: Who do we talk to?
. . . .
"[Flack]: How the—I do not know. . . . I only speak one fuckin' language here. I
don't know where that baby is. I don't know what happened at that fuckin' house. But
apparently you guys got it all sewed up. So do whatever we're doin'. Because I can keep
tellin' ya the same fuckin' thing and you're gonna keep fuckin' the same thing. . . .
"[Alexander]: Where was she left?
"[Flack]: I don't fuckin' know. [Fourth comment] Goddamn, quit—
. . . .
"[Alexander]: . . . Who the fuck do we talk to, Kyle?
"[Flack]: I don't fuckin' know. You know what? [Fifth comment] Wrap these up,
take me to fuckin' jail because obviously you're just gonna keep fuckin' goin' so I can't
give ya information I don't fuckin' have so do what you do." (Emphases added.)
Flack got heated and made these comments as Alexander asked about the child's
whereabouts. The third remark was a dramatic gesture, not a substantive cutting off of
questioning. The fourth was so brief; it was inscrutable. And the fifth appears to be
another "take me to jail" statement, "because . . . I can't give ya information I don't
fuckin' have so do what you do." (Emphases added.) Flack was communicating if the
officers keep asking questions he could not answer, they should just charge him. But,
taken together or separately, he does not unambiguously invoke his right to remain silent.
A few minutes later, the detectives encountered strong resistance when asking
Flack why he was in Emporia. In this context, Flack made his sixth alleged invocation:
"You wanna . . . fuckin' take me to jail, charge me, whatever, I—we done sat here and
fuckin' talked about it, okay? It's that simple." But again, he did not clearly state to stop
the interview. Instead, he expressed frustration the officers were unwilling to trust him.
The final four remarks occurred when Alexander asked for detail about his
Emporia business involving "some Mexicans."
"[Alexander]: Who were you selling dope to?
"[Flack]: Some Mexicans.
"[Alexander]: What are their names?
"[Flack]: I don't know their fuckin' names.
"[Alexander]: Where do they live?
"[Flack]: I don't know where they live. I meet 'em on the fuckin' south side, at
fuckin' at Saint Pablo Park.
"[Alexander]: Okay what do they drive?
"[Flack]: [Seventh comment] Take me to jail.
"[Alexander]: What do they drive?
"[Flack]: Drive—[Eighth comment] take me to jail man. . . .
"[Alexander]: What are their phone numbers?
"[Flack]: [Ninth comment] Take me to jail.
"[Alexander]: Kyle, this is your opportunity to help yourself.
"[Flack]: How am I helpin' myself? You made your mind up.
"[Detective Bob Moews]: No we haven't. That's why we're tryin' to ask you
about these people.
"[Flack]: What do you want me to tell you? A bunch of fuckin' Mexicans.
They're called SSLs, South Side Lobos. . . .
"[Alexander]: What do you sell them?
"[Flack]: Meth. . . .
"[Alexander]: How much was this time?
"[Flack]: Two pounds.
. . . .
"[Alexander]: Who do you deliver for?
"[Flack]: [Tenth comment] Take me to jail. . . .
"[Alexander]: Okay, Kyle let's help yourself, okay?
"[Flack]: There is no help myself. . . .
. . . .
"[Alexander]: All right, then let's—help out, okay?
"[Flack]: I don't know the fuckin' people. . . . [T]hey just contact me, tell me to
pick it up." (Emphases added.)
Flack's comments here—"What do you want me to tell you?"—and his
statement—"I don't know the fuckin' people"—lead to a reasonable inference Flack
meant "I don't know," rather than invoking his right to remain silent. As the State
correctly argues, his claimed invocations were "amenable to a variety of interpretations"
or "an expression of frustration and anger," "a recognition of his difficult predicament,"
"a hyperbolic effort to bolster his own credibility and convince the detectives that he was
telling the truth," and "a negotiating tactic . . . intended to shape the investigator's
interrogation more favorably to him." In context, these comments show Flack believed
the questioning about what happened at Stout's house was irrelevant, rather than
exercising a constitutional right. He simply claimed the detectives had already made up
their minds about his involvement in these deaths, including their belief he could help
them find the child.
Under the circumstances, Flack's "take me to jail" comments lead to multiple
interpretations—rendering his communication unclear. Flack had experience with police
interviews; read the Miranda form, which stated with particularity "you have the right to
remain silent," and "you can decide at any time to exercise these rights and . . . not
answer any questions or make any statements"; affirmatively stated he understood his
rights; and told the detectives he would answer their questions.
We hold Flack did not invoke his right to remain silent by repeatedly suggesting
he be taken to jail. Isolated or combined, his statements did not unambiguously and
unequivocally assert his right to silence. See People v. Davis, 46 Cal. 4th 539, 587-88, 94
Cal. Rptr. 3d 322, 208 P.3d 78 (2009) (holding defendant's statement—"'Well then book
me and let's get a lawyer and let's go for it, you know'"—was a challenge to interrogators
that defendant employed as interrogation technique, not a means to invoke right to
counsel or silence; contrasting these comments with statements later in interrogation,
"'get me a lawyer'" and "'it's over and [he was] done'" answering questions, that
constituted a valid invocation); Ridley v. State, 290 Ga. 798, 801-02, 725 S.E.2d 223
(2012) (holding "take me on to jail" did not unequivocally invoke the right to silence);
State v. Waloke, 835 N.W.2d 105, 112 (S.D. 2013) (rejecting the defendant invoked her
right to silence by stating, "officers should just take her to jail" as she did not explicitly
say she wanted to remain silent or did not want to speak with police anymore); State v.
Cummings, 357 Wis. 2d 1, 24, 850 N.W.2d 915 (2014) (holding "'take me to my cell.
Why waste your time?'" in context not unequivocal invocation); Kirk v. Carroll, 243 F.
Supp. 2d 125, 132 (D. Del. 2003) (denying habeas relief, reasoning Delaware state court
conclusions that, "'Just take me away, please. Take me away,'" and "'Just take me the
fuck away,'" were not clear invocations of right to silence was not contrary to clearly
established federal law); Bird v. Brigano, 295 Fed. Appx. 36, 38 (6th Cir. 2008)
(unpublished opinion) (analyzing two exchanges during interview, first Bird said "'there's
no sense me sitting here trying to say what happened with me . . . because as usual, when
it comes to Derrick Bird, he's guilty'" and then stood up and said, "'You take me in; get
booked, man,'" and second in response to detective explaining this is your chance to talk
Bird said, "'Everything's right there in the paper. I'm done talking about it'"; holding
neither were unequivocal invocations of right to remain silent when viewed in context).
The district court properly admitted his custodial statements.
Throughout Flack's case, defense counsel expressed concern they would not be
prepared for trial. That concern became especially acute after his original counsel
withdrew in 2015. In response, the court continued the proceedings until the following
spring. Despite that, the defense requested another continuance and repeated such
requests through the pretrial proceedings.
Now, on appeal, Flack asserts the district court's scheduling orders violated his
Sixth Amendment due process right to present a defense, his corresponding rights under
sections 5 and 10 of the Kansas Constitution Bill of Rights, and finally his statutory rights
under K.S.A. 22-3406 (reasonable time to prepare for trial) and K.S.A. 22-3401
(continuances for good cause). From this, we discern two lines for analysis. First, he
statutorily argues the district court abused its discretion by denying persistent
continuance requests. Second, he constitutionally asserts a due process denial under the
federal and state Constitutions. We reject these claims.
Additional facts
Flack's court-appointed defense team changed during pretrial when his initial lead
attorney withdrew in July 2015 and had to be replaced. Flack moved to continue the trial,
claiming the defense will not be prepared for a September trial and asked to postpone
until next year. The court granted the motion and continued the trial to February 22,
In November 2015, defense counsel filed a second motion to continue trial.
Counsel argued the team's difficulty replacing the original attorney created a deficiency
that could compromise Flack's right to counsel. The team further noted it lacked
sufficient time to review discovery and the complete investigation based on ABA
Guidelines. See American Bar Association, American Bar Association Guidelines for the
Appointment and Performance of Defense Counsel in Death Penalty Cases, 31 Hofstra L.
Rev. 913, 920 (2003). The team indicated it was still developing its mitigation case. It
had identified family members central to Flack's "social history" but had not yet
interviewed them; some were out of state, while others were unwilling to meet with
defense counsel. It had hired experts in childhood development, forensic psychiatry, and
prison adjustment, but the interviews were pending. And it was still collecting school,
medical, and psychiatric records. Finally, the team said its heavy caseloads were already
hard to manage and would be compounded by the holidays.
The court heard the motion in late November ex parte and in camera. It
acknowledged the team's difficulties but pointed out the case had been pending for about
two years. Expressing frustration with the apparent lack of progress, it denied the request
without the State's input as it was skeptical more time would materially aid the defense.
In January 2016, the defense renewed its motion, which was again heard by the
court ex parte, in camera. Defense counsel reiterated the same concerns but highlighted
the need for a neuropsychologist to examine Flack and testify during the penalty phase.
The court denied the motion and pushed the defense to retain an expert. It asked the
defense to file a new continuance motion "to clarify a little more succinctly the particular
issues that prohibit you in proceeding." It said it would revisit the issue the next week.
When voir dire began the following week, the defense filed its third continuance
motion. The court heard the motion in camera after that day's questioning. Defense
counsel reiterated their concerns and noted the defense team had lost its administrative
support. The court systematically worked through the concerns, focusing especially on
the efforts to retain experts. It said, "[C]ertain issues . . . should have been taken care of
quite [some time] ago." It perceived the defense's concerns as mainly being mitigation
preparation and asked the defense to push forward over the two weeks remaining before
the scheduled opening statements. It also advised the defense to continue preparing its
mitigation case during the guilt phase.
Toward the end of the week, the court returned to the continuance motion. By that
time, the defense had retained a neuropsychologist to begin work within a few weeks and
would take about a week to finish. The parties discussed a plan to push back the guilt
phase to accommodate the expert and proposed the court complete voir dire and conduct
jury selection by February 17. The guilt phase would be pushed back to March 7, and the
penalty phase to March 28. The court agreed, and the trial proceeded on that schedule.
But when the trial began, defense counsel asked for further postponement, saying only
"[w]e believe we've litigated this issue thoroughly." The court denied the request.
Statutory challenge—a reasonable time to prepare for trial
We review continuance denials for abuse of discretion. A court abuses its
discretion when its action is unreasonable or based on an error of law or fact. The party
asserting an abuse of discretion must demonstrate it. State v. Hillard, 315 Kan. 732, 760,
511 P.3d 883 (2022). Here, Flack does not claim the district court erred based on an error
of law or fact; our focus is whether the district court erred by acting unreasonably.
K.S.A. 22-3401 requires all persons charged with a crime to be tried without
unnecessary delay and, at the same time, allows a district court to continue proceedings
when good cause is shown. In addition, K.S.A. 22-3406 entitles a defendant to "a
reasonable time to prepare for trial." Flack alleges he was denied a reasonable time to
prepare his case.
The ABA Guidelines thoroughly outline recommendations for defense counsel's
duties in all aspects of death penalty cases. Flack relies almost exclusively on the
guidelines and argues those obligations made his case especially time consuming,
justifying his requested continuances. Generally, capital cases have "extraordinary
complexity and demands" compared to noncapital cases. ABA Guidelines, 31 Hofstra L.
Rev. at 921. For example, capital cases increase defense counsel's obligations to
investigate mitigators. See generally 31 Hofstra L. Rev. at 924-28. In addition, counsel
should "at all stages of the case . . . make every appropriate effort to establish a
relationship of trust with the client, and should maintain close contact with the client."
ABA Guideline 10.5. Counsel also must "conduct thorough and independent
investigations relating to the issues of both guilt and penalty." ABA Guideline 10.7(A).
And counsel must consider and assert all potential legal claims at both the guilt and
penalty phases and each claim's costs and benefits. ABA Guideline 10.8.
The ABA Guidelines are a relevant guidepost for evaluating an ineffective
assistance of counsel claim in a capital case, but they are not "coextensive with
constitutional requirements." State v. Cheatham, 296 Kan. 417, 433, 292 P.3d 318
(2013). The guidelines and their comments are useful to gauge what is "a reasonable time
to prepare for trial" under K.S.A. 22-3406, and how a district court should exercise
discretion when deciding whether to grant a continuance. The concern is not whether
counsel satisfied the guidelines, but rather whether, in considering various circumstances
presented in a particular case, including the guidelines, the district court gave the defense
reasonable time to prepare for trial. Granted, the guidelines can contextualize the
problems facing capital defense counsel, but caselaw ultimately governs whether a
continuance denial rises to an abuse of discretion.
In State v. Robinson, 303 Kan. 11, 363 P.3d 875 (2015), disapproved of on other
grounds by State v. Cheever, 306 Kan. 760, 402 P.3d 1126 (2017), for example, we found
no abuse of discretion in a district court's denial of continuances in a capital murder case
after comparing it to other similar cases. See 303 Kan. at 92-93 (listing cases). There, we
acknowledged retained counsel's withdrawal "certainly increased appointed counsel's
workload and responsibility" but noted "they were not starting from scratch." 303 Kan. at
92. At the time of the withdrawal, counsel had been working for seven months. And the
district judge granted Robinson a continuance, giving newly appointed counsel another
seven months to prepare. "Appointed counsel also had the benefit of the preparation
[prior counsel] had done over the course of nearly 2 years." 303 Kan. at 92. The Robinson
court held "the district judge properly exercised his lawful discretion by refusing requests
for a second continuance to prepare the guilt phase defense," reasoning a reasonable factfinder could have agreed with that ruling. 303 Kan. at 93; see also State v. Green, 315
Kan. 178, 179-80, 505 P.3d 377 (2022) ("A court abuses its discretion if its action . . . 'is
. . . unreasonable, i.e., if no reasonable person would have taken the view adopted by the
trial court.'").
In Flack's case, almost two years and 10 months elapsed between his initial
counsel entering an appearance and trial. Nearly two years passed between his second
counsel entering an appearance and trial, and almost a full year passed between his third
counsel entering her appearance and trial. Initial and second counsel worked together for
about one year and three months, and the remaining counsel worked together for about
250 days before trial after initial counsel retired in July 2015.
The first continuance request relied on the ABA Guidelines and focused on initial
counsel's withdrawal, remaining counsel's other caseload and inexperience in capital
cases, the volume of discovery to review, and the need to retain expert witnesses. The
court granted the continuance, mostly based on the original counsel's withdrawal.
Flack requested a second continuance so counsel could provide Flack "with the
high-quality legal representation contemplated under prevailing Constitutional and
professional standards." The motion again cited the ABA Guidelines and highlighted
defense counsel's independent duty to investigate. The defense noted it had recently
received "20,000 pages and 500 discs" of discovery and "more than 100 scientific
reports" from the State. They were also waiting on their own experts' reports. The court
deferred ruling and asked the defense to push forward and keep it apprised of problems as
they arose.
The third continuance remained much the same as the second. The defense filed it
at the court's request during voir dire to reflect the previously raised issues' status. The
defense was still reviewing and synthesizing discovery and conducting its investigation.
But the most pressing issue was securing a neuropsychologist, which the defense did on
February 4. The court, with the State's agreement, pushed the trial's start date from
February 22 to March 7 to allow the expert to evaluate Flack.
We discern no abuse of discretion in denying the second and third continuance
requests. As in Robinson, Flack's initial counsel was a single member of a three-counsel
team. He left second counsel with over a year on the case and a third counsel who joined
the team a few months earlier. Similarly, original counsel's withdrawal did not require the
team to start from scratch. Recognizing second counsel could not just pick up where
original counsel left off, the court granted a continuance of several months. As to the
second request, the court pushed the defense to make progress and pointedly questioned
what aspects were challenging. Over the next months, the outstanding tasks narrowed,
even as the defense continued to press for postponement. The largest obstacle, needing a
neuropsychologist, became clear as trial approached, and the court granted a short
Throughout this process, the record reflects the court seriously considered the
defense's concerns and worked to address them as they arose. It reasonably handled the
case and did not abuse its discretion.
Constitutional challenge—right to present a defense
Flack argues the denial of his second and third continuance requests violated his
right to present a defense under the Sixth Amendment to the United States Constitution
and under sections 5 and 10 of the Kansas Constitution Bill of Rights. We reject these
The Sixth Amendment states: "[T]he accused shall enjoy the right to a speedy and
public trial, by an impartial jury . . . ; to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in his favor, and to have the Assistance
of Counsel for his defence." Section 5 declares: "The right of trial by jury shall be
inviolate." And section 10 "allow[s]" the accused to
"appear and defend in person, or by counsel; to demand the nature and cause of the
accusation against him; to meet the witness face to face, and to have compulsory process
to compel the attendance of the witnesses in his behalf, and a speedy public trial by an
impartial jury . . . . No person shall be a witness against himself, or be twice put in
jeopardy for the same offense."
The phrase "right to present a defense" is a blanket term for a collection of a
defendant's rights, including a right to present evidence on his or her own behalf. See
State v. Carr, 300 Kan. 1, 207-08, 331 P.3d 544 (2014) (R. Carr I) (discussing nature of
"right to present a defense," focusing on rules for excluding evidence and right to present
theory of defense), rev'd and remanded on other grounds 577 U.S. 108, 136 S. Ct. 633,
193 L. Ed. 2d 535 (2016); United States v. Markey, 393 F.3d 1132, 1135 (10th Cir. 2004)
(a defendant's "right to present a defense" refers to the collective rights "to testify, present
witnesses in his own defense, and to cross-examine witnesses against him" rooted in the
Fifth and Sixth Amendments). In some contexts, a continuance denial may implicate
rights under the umbrella of "right to present a defense." See Morris v. Slappy, 461 U.S.
1, 11-12, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983) ("[A]rbitrary 'insistence upon
expeditiousness in the face of a justifiable request for delay' violates the right to the
assistance of counsel.").
The United States Supreme Court provides a "continuance is traditionally within
the discretion of the trial judge." Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 11
L. Ed. 2d 921 (1964). When a request is reasonable, a continuance denial may
"myopic[ally] insist[] upon expeditiousness . . . render[ing] the right to defend with
counsel an empty formality." 376 U.S. at 589. The Court conceded, "There are no
mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate
[the accused's constitutional rights]," but it noted, "The answer must be found in the
circumstances present in every case, particularly in the reasons presented to the trial
judge at the time the request is denied." 376 U.S. at 589.
We review a continuance denial's possible interference with the right to present a
defense de novo. See Robinson, 303 Kan. at 85. Like the Ungar Court found the answer
in the circumstances, we examine various factors present in a particular case. In State v.
Anthony, 257 Kan. 1003, 898 P.2d 1109 (1995), a defendant contended the trial court
denied him his right to retain chosen counsel by failing to grant a continuance so that his
retained counsel could prepare for his case. When rejecting his constitutional claim, the
Anthony court considered several factors, including whether other continuances have
been granted; whether legitimate reasons were shown to postpone trial; and whether
denial of the continuance would prejudice the defendant. The Anthony court held the trial
court did not abuse its discretion in denying a continuance in which the sole reason for
the continuance was to permit new counsel to enter his appearance. 257 Kan. at 1019.
Here, the trial began some eight months after his original counsel withdrew, and Flack
proceeded with the same appointed counsel team he had all along. Moreover, the district
court gave counsel reasonable time to prepare a capital case given the defense team's
relative continuity and the total time available.
We hold the district court's handling of continuance requests did not violate
Flack's Sixth Amendment right to present a defense or his rights under sections 5 and 10
of the Kansas Constitution Bill of Rights.
Throughout voir dire, the district court denied several defense for-cause challenges
to selected jury members. These challenges questioned prospective jurors' predisposition
to the death penalty. Some challenged members joined the 20 jurors and alternates who
heard the case, and some of those joined the 12 who convicted Flack and sentenced him
to death. On appeal, Flack argues the district court committed reversible error by denying
his challenges. Again, we disagree.
Additional facts
When voir dire began, the court separated prospective jurors into six panels. It
questioned two panels per day over nine days to reduce the initial group from which the
parties could exercise peremptory challenges. Each party received 20 peremptory
challenges to produce a final jury of 20, including eight alternates.
During peremptory challenges, defense counsel asked for "extra strikes" because
the court denied so many of the defense's for-cause challenges. The court ruled this was
premature since the defense had not yet exhausted all of its peremptory strikes. After
exercising its seventeenth peremptory challenge, the defense renewed its request for more
strikes. The State opposed this for two reasons. First, the defense still had some
peremptory strikes. Second, procedurally it was unclear where the new strikes would
come from because alternate jurors were necessary. The court denied the request,
reasoning the defense had already struck the only juror who was arguably "automatic
death." The defense then formally objected to the 20 selected jurors' composition. The
court randomly selected alternate jurors but did not disclose to the jury who it selected
until deliberations.
When trial began, the court released three jurors after each raised an issue,
bringing the jury down to 17. Before deliberations, the court named the alternates, and
the 12 primary jurors deliberated and ultimately entered guilty verdicts.
Prior to the penalty phase, the court conducted a second voir dire at the defense's
pretrial request to determine whether any jurors, including the alternates, had reached an
opinion on a death sentence. The jurors were questioned individually, outside the
presence of the others. The court asked five questions and then allowed follow-up
questions by the State and defense.
Juror J.B.'s responses during questioning raised concerns when he expressed
reluctance to change his mind about imposing the death penalty. While claiming he
would follow the law and consider all mitigating circumstances, his skepticism persisted.
After questioning the other jurors, the defense asked to remove two potential jurors,
including J.B. Given J.B.'s role as part of the 12-member jury that convicted Flack, the
court removed J.B. But it retained the other juror as being an alternate.
On appeal, Flack lists 18 potential jurors denied a for-cause challenge. But Flack
used peremptory challenges to remove 16 of those 18.
Standard of review
We review for-cause juror challenges for an abuse of discretion because the trial
judge is better positioned to make the ruling. Robinson, 303 Kan. at 154. "Appellate
courts have traditionally accorded a great deal of deference to a trial court's ruling on a
juror challenge for cause." State v. Miller, 308 Kan. 1119, 1138, 427 P.3d 907 (2018).
K.S.A. 22-3410(1) permits a party to "challenge any prospective juror for cause."
Among the nine grounds listed in K.S.A. 22-3410(2) is: "(i) His 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." In
death penalty cases, prospective jurors may be excluded when their views on the death
penalty "would 'prevent or substantially impair the performance of his duties as a juror.'"
Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985). This
applies whether the challenge is directed at death-leaning or life-leaning jurors. R. Carr I,
300 Kan. 1, Syl. ¶ 20. The pertinent question for our appellate review is not whether we
agree with the district judge's ruling but, instead, whether the record fairly supports its
ruling. Robinson, 303 Kan. at 155.
Of the 18 jurors Flack discusses, only M.F. and J.H. ended up as jurors. And as the
State correctly notes, the relevant question is whether the seated jurors prejudiced Flack.
See Miller, 308 Kan. at 1138 (failing to excuse a juror for cause requires conviction
reversal only when the defendant demonstrates he or she was prejudiced as a result).
Even if a defendant was compelled to use peremptory challenges "to correct erroneous
for-cause rulings," it is a nonissue absent the defendant showing the sitting jury was
prejudiced. 308 Kan. at 1139. Flack, as the party asserting the error, bears the burden of
establishing the denial of a for-cause challenge constituted an abuse of discretion and
resulted in prejudice. 308 Kan. at 1138.
Juror M.F.
During the State's initial voir dire, the prosecutor asked M.F. about her general
views on the death penalty. In the past, M.F. strongly supported the death penalty without
much knowledge. But after working for a judge who opposed it, she reevaluated her
stance. She said the judge told her that "many people are in prison that later they're found
not guilty." She then noted, "I need to be open to hearing all of the information and
understanding the whole story before I can say strongly one way or the other."
During defense questioning, M.F. said she would consider factors such as the
degree of the childhood abuse or the mental illness, as well as a person's adaptability to
prison, as potential mitigating circumstances. But she "need[ed] more information to
make a decision." Counsel further asked about her shifting death penalty views. She
reiterated, "I don't feel strongly one way or the other about the death penalty. But it
definitely is going to have to be very clear [that the defendant is guilty.]"
In her questionnaire, M.F. suggested childhood experience "plays a huge role" but
should not affect capital sentencing. She believed individuals must take responsibility for
their choices and must not blame others. M.F. noted she would consider factors "more
serious than [abuse or unloved]" necessary to warrant capital punishment.
The defense challenged M.F. for cause, focusing on her questionnaire response
suggesting the death penalty was appropriate in a multiple victim case "if there's
absolutely no question about [the] person's guilt." She "equivocate[d]" in her written
responses about her beliefs and opinions on the death penalty, which defense counsel
claimed made it "hard to draw out any information what her thoughts are." The defense
characterized her responses as "it depends." Counsel argued M.F. conveyed believing
people must take personal responsibility for their actions created a "mitigation
impairment with her." Ultimately, "there's a doubt that she could be impartial."
The court rejected this, reasoning M.F. appeared to be more favorable to the
defense than some jurors the defense previously challenged. M.F. affirmed she had not
formed an opinion on Flack's guilt from media or pretrial sources. The court emphasized
her evolving beliefs about the death penalty and her "conscientious" approach, expressing
faith in her ability to be fair, impartial, and law-abiding at sentencing.
In his brief, Flack argues M.F. dismissed the importance of extreme childhood
experiences and said mercy would play no role in her penalty decision. He contends her
stance, even after agreeing to follow the law, is "devastating" to a fair penalty trial, as her
"willingness to follow the law does not prevent long held biases from affecting a
But contrary to Flack's contention, during voir dire, M.F. consistently expressed
she could not definitively answer how various factors would weigh in her decisionmaking process without knowing more. She clarified her questionnaire response,
explaining that while she would not be swayed by typical childhood traumas, she would
consider more serious circumstances. The record shows M.F. was open to mitigation
evidence, and her reservation about childhood experiences pertains more to their abstract
persuasiveness rather than a complete rejection.
Finally, Flack seemingly argues a juror is biased if he or she is unwilling to rely on
the nebulous concept of mercy alone for mitigation. But he cites no support for this. As
Justice Scalia once noted, "what one juror might consider mitigating another might not.
And of course the ultimate question whether mitigating circumstances outweigh
aggravating circumstances is mostly a question of mercy—the quality of which, as we
know, is not strained." Kansas v. Carr, 577 U.S. 108, 119, 136 S. Ct. 633, 193 L. Ed. 2d
535 (2016). So even if M.F. said "mercy"—a concept she equated with "pity" during voir
dire—should not be considered on her questionnaire, she remained willing to consider the
various circumstances in Flack's case before reaching a decision.
Rather than showing a preformed bias favoring the death penalty, M.F.'s voir dire
responses consistently reflected a willingness to wait and see the evidence before
deciding, which is exactly what a juror should do. The court scrutinized her qualifications
and outlined its reasons why she was a qualified juror. As it pointed out, given her
hesitation about the death penalty, if anything, M.F. was a favorable defense juror. It was
neither error nor an abuse of discretion for the court to deny this challenge.
Juror J.H.
During voir dire, J.H. reiterated a neutral view on the death penalty, expressing a
commitment to base his decision on the case's facts and the court's instructions. He
acknowledged "there's no rehabilitation" for some people but noted sometimes "people
get into situations" and there are "so many hypothetical situations out there." J.H.
recognized the weighty responsibility of imposing the death penalty, underscoring the
need for certainty in such decisions.
On his questionnaire, J.H. indicated a belief that mercy should not play a role in
sentencing. And when asked whether he believed in an "eye for an eye," his answer was,
"Let the punishment fit the crime." During voir dire, when questioned about his "eye for
an eye" response, he explained he could envision "a hypothetical situation" in which a
crime is "so horrific" that he could support the death penalty. But he acknowledged the
death penalty is not suitable for every murder case, although it is "there for a reason" and
there are situations in which it can be used. J.H. admitted that until he learned the juror's
role during this process, he had not deeply considered his stance on the death penalty.
Following the conclusion of J.H.'s panel, defense counsel challenged him for cause
based on his questionnaire responses. Counsel interpreted J.H.'s "eye for an eye" response
as potentially shifting the burden to the defense to "prove . . . that life without the
possibility of parole was deserved." The court rejected this challenge, finding J.H.'s
responses indicated he has not yet made up his mind one way or the other and
characterizing him as "middle of the road" on the death penalty. The court found no
reason to doubt his fairness and impartiality during the guilt phase, and that he conveyed
a willingness to consider the mitigating circumstances if the case reached the penalty
On appeal, Flack claims the district court abused its discretion by denying his forcause challenge to J.H., because of his questionnaire responses: "Let the punishment fit
the crime," and mercy should not be a factor in his decision-making. Flack continues that
J.H. "harbor[ed] an unacceptable bias on a matter crucial for a fair proceeding," even if
he agreed to follow the law.
Nevertheless, like M.F., the record establishes J.H. would listen to the evidence
and decide the case on the facts and law. And we hold the district court did not abuse its
discretion in denying these challenges.
Jurors not challenged for cause
Besides M.F. and J.H., Flack argues three other seated jurors were similarly
biased: J.S., C.C., and G.B. He asserts both J.S. and C.C. expressed their belief that
childhood experiences and mercy were irrelevant considerations for determining
punishment, citing only their questionnaire responses. For J.S. and C.C., Flack adds that
although each agreed to consider childhood experiences during voir dire, the prosecution
led them to agree only to "consider" mitigators, without committing to "meaningful
consideration," potentially prejudicing the defense.
As for J.S., the defense questioning was cursory. When asked about his thoughts
on the death penalty, he replied he could impose it in some cases depending on the
evidence. Similarly, when asked about his starting position for or against the death
penalty, he stated he did not have an opinion until he considered the evidence. Defense
counsel asked each juror if they could "consider mercy for that guilty murder"; J.S.
simply replied, "Yes." Counsel did not follow up. In fact, his response to most questions
was a simple yes or no. And he said he would follow and apply the law. When asked
about mitigating factors, he answered he would consider the evidence whether "the
person really . . . [was] aware of what he was doing."
The State asked C.C. to elaborate on her questionnaire responses about the effect
of childhood experiences. She elucidated upbringing may not always determine the
outcome, but "a loving, caring home" increases the likelihood of the individuals "turning
out to be better people." Despite this, she acknowledged she had written that "people are
responsible for their actions." The State followed by asking whether she could consider
childhood experiences as mitigating factors, C.C. replied people "have to be accountable
for [their actions]" but she "would consider aggravating and mitigating" factors and
"weigh them up" in her decision-making process.
When questioned by defense counsel, C.C. acknowledged she placed greater
importance on the circumstances of killing in the context of aggravating and mitigating
considerations. She confirmed "the background of a person" would not matter to her. But
she clarified a commitment to fairness and honesty in weighing these factors. After
further questioning, C.C. agreed she would give the defense's mitigators weight, consider
them, and "truly give [them] meaningful consideration."
As for G.B., Flack contends he "expressed strong biases in favor of the death
penalty, writing that he definitely favored the death penalty, if the murder of a mother
and child were proven beyond a reasonable doubt." G.B. did not think childhood
experiences were relevant to capital punishment, as there was "'no excuse for capital
murder.'" Flack claims the "upshot" of G.B.'s agreement to "consider" childhood
experiences after saying they were not "relevant" on his questionnaire was "that he would
consider them but not give them relevance."
On his questionnaire, G.B. acknowledged the role of upbringing in adult behavior
but maintained it did not excuse capital murder. The State asked whether his position
changed after he understood the process for imposing the death penalty; G.B. said he
would consider any mitigating circumstances he was instructed to consider. Defense
counsel gave G.B. a hypothetical of a conviction with various aggravators. Counsel asked
how jurors should view the death penalty before factoring in any mitigators. G.B.
answered, "You have to look at the mitigators to get it on the scale and the aggravators
would have to outweigh the mitigators." Counsel characterized his questionnaire response
about the likelihood of imposing the death penalty for the premeditated capital murder of
a woman and child as "almost automatic." But G.B. clarified that was not what he had
meant, "[i]t depends on all the evidence presented." G.B. also noted that after he learned
"how the system works," he could consider childhood experiences as a mitigating
The State, of course, did not have a chance to rehabilitate the jurors because Flack
did not challenge them during the trial. Likewise, the court could not make a record for
appellate review on each juror's ability to be fair and impartial. Thus, Flack's failure
burdens our analysis.
Flack's cursory argument about these jurors' prejudices focuses on their limited
responses and matter-of-course agreement to apply the law as instructed. But the record
establishes trial counsel never probed deeper into the concerns appellate counsel now
raises. Nothing shows these jurors were improperly prejudiced or biased against Flack.
The district court conducted voir dire carefully and cautiously, addressing the defense's
concerns seriously. The follow-up voir dire questioning either clarified or rehabilitated
each juror's positions, so the court could reasonably conclude these jurors would be fair
and impartial. We find no error.
Flack asserts three instances of guilt-phase prosecutorial error that, individually
and collectively, warrant conviction reversal. First, he claims the State's repeated use of
the expression "level[ing] the scales" during voir dire to describe the jury's role at
sentencing negated the presumption of life in Kansas. Second, he argues the State's
mention of Mother's Day during opening statements to describe the discovery of L.B.'s
body was inflammatory and meant to provoke juror sympathy. Third, he claims a
baseball analogy during the State's closing rebuttal argument gave an incorrect reasonable
doubt definition. We disagree.
Standard of review
We review prosecutorial error claims in two steps: error and prejudice. First, we
determine whether the alleged acts "'fall outside the wide latitude afforded prosecutors to
conduct the State's case.'" State v. Blansett, 309 Kan. 401, 412, 435 P.3d 1136 (2019).
Second, if we find error, we then "'determine whether the error prejudiced the defendant's
due process rights to a fair trial.'" 309 Kan. at 412. In the second step, we apply the
constitutional harmlessness standard laid out in Chapman v. California, 386 U.S. 18, 87
S. Ct. 824, 17 L. Ed. 2d 705 (1967), which demands the State show beyond a reasonable
doubt that the prosecutorial error did not affect the trial's outcome in light of the entire
record. In other words, the question is whether there is no reasonable possibility that the
error contributed to the verdict. Blansett, 309 Kan. at 412.
Leveling the scales
Before each voir dire panel, the State consistently described the transition from the
guilt phase to the penalty phase by using the colloquialism "level[ing] the scales." In one
panel, for example, the prosecutor told jurors they would once again hear the evidence
and follow the judge's instructions. And based on the evidence and the law, the jury
would determine whether the sentence should be life without the possibility of parole or
the death penalty. The prosecutor illustrated the "concept of the process" as: "You have a
scale, you level the scale. . . . Then you consider the circumstances."
These included the statutory aggravating circumstances the State had to prove
beyond a reasonable doubt on one side and the mitigating circumstances, which need not
be proved beyond a reasonable doubt, on the other. The prosecutor told the panel, "The
weighing of circumstance is an individual determination" "based upon your own life
experiences, and your values." The prosecutor concluded if "[t]he aggravators outweigh
the mitigators, imposition of the death penalty. If the mitigators outweigh the
aggravators, life without the possibility of parole. If they're equal, imposition of the death
penalty." The prosecutor used a similar description with each panel.
In Kansas, our statutory scheme for imposing the death penalty requires a
sentencing jury to find beyond a reasonable doubt at least one statutory aggravating
circumstance and, "further, that the existence of such aggravating circumstances is not
outweighed by any mitigating circumstances which are found to exist." K.S.A. 2022
Supp. 21-6617(e). Under this scheme, if the aggravating circumstances and mitigating
circumstances are in "equipoise," as we have termed it, the sentence is death. Kansas v.
Marsh, 548 U.S. 163, 179, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006).
In Marsh, the defendant argued the equipoise provision "establishes an
unconstitutional presumption in favor of death." 548 U.S. at 166-67. But the Court
rejected that argument and held it was constitutionally permissible for an equipoise
weighing to result in a death sentence. In reaching that conclusion, the Court stated our
"sentencing system is dominated by the presumption that life imprisonment is the
appropriate sentence for a capital conviction" because it requires a life sentence if the
State fails to meet its burden to prove an aggravating circumstance. 548 U.S. at 178.
Flack argues the presumption of life the Court found "dominated" our system means the
"jury does not start with level scales." He asserts that because "'level scales' is a more
colloquial term for equipoise," the prosecutor's language "with every jury panel, and thus
with every seated juror," "primed the jury to start from equipoise rather than the proper
presumption of life."
We agree with Flack's premise that our capital sentencing scheme includes a
presumption of life. But we do not agree with his conclusion that the prosecutor's
"level[ing] the scales" phrasing contradicted that presumption or misstated the law. The
"default" sentence after a capital conviction is a life sentence without the possibility of
parole. And that default continues until the State proves, and the jury finds, an
aggravating circumstance beyond a reasonable doubt. It is only at that point the weighing
process or "scales" come into play. The prosecutor's analogy did not misinform the jury
and imply a presumption of death. Rather, it conveyed just the opposite: that the guilty
verdict itself carried no weight in sentencing deliberations.
We hold the prosecutor's description of the deliberative process accurately
explained the State's burden to prove an aggravating circumstance and the weighing
process that follows. The prosecutor's comments were not error.
Prosecutor's reference to Mother's Day
The State's opening statement made a single reference to Mother's Day before
describing law enforcement's discovery of L.B.'s body: "In just a few hours it will be
Mother's Day. It's May 11th, 2013. And at this point in the evening the sun has set,
darkness has fallen, and there's a group of officers and they're huddled together on a
bridge." Flack argues the fact it was almost Mother's Day was immaterial and meant to
inflame the jurors' sympathies. We disagree.
Prosecutors have wide latitude when crafting opening and closing statements, so
long as their statements "'accurately reflect the evidence, accurately state the law, and
cannot be "intended to inflame the passions or prejudices of the jury or to divert the jury
from its duty to decide the case based on the evidence and the controlling law."'" State v.
Bodine, 313 Kan. 378, 406, 486 P.3d 551 (2021). When deciding whether a prosecutor's
statement falls outside the wide latitude given, we consider "'the context in which the
statement was made, rather than analyzing the statement in isolation.'" 313 Kan. at 407.
In State v. Henry, 273 Kan. 608, 640, 44 P.3d 466 (2002), the court determined a
prosecutor's comment to "'think about Mother's Day yesterday, and her mom how she
must have felt. Now [the victim] will never have a chance to be a mother, this young
professional sharp, security conscious woman . . . .'" The Henry court noted, "The
prosecutor's reference to the mother's grief and the introduction of the mother's testimony
was not relevant to whether the defendant was afflicted by mental disease or defect at the
time of the alleged crimes. The prosecutor clearly intended to inflame the passion and
prejudice of the jury." 273 Kan. at 641; cf. State v. Chandler, 307 Kan. 657, 690, 414
P.3d 713 (2018) (prosecutor stated defendant "'robbed her own children of their father'"
and elicited sympathy for the children).
But the prosecutor's reference to Mother's Day here is distinguishable from Henry.
The prosecutor was painting a scene describing law enforcement's discovery of L.B.'s
body that included many details not necessary to the case, such as describing the cool
spring evening and use of flashlights. The only reference to Mother's Day was followed
by 11 days of testimony and evidence, so its alleged appeal to passion seems overblown.
The State never mentioned it again. Nor did it ever imply finding L.B.'s body just before
Mother's Day was any worse or more tragic than any other day. The comment was within
the wide latitude given to prosecutors in crafting an opening statement and not error.
Baseball analogy
Flack's final guilt-phase prosecutorial error challenge is to a Chicago Cubs
analogy the prosecutor used in rebuttal closing argument. The prosecutor stated:
"We've not asked you to ignore anything. What we've asked you to do is look at
the totality, look at all of it. When you consider the defendant's actions before the crime,
during the crime, after the crime. When you consider the defendant's words, his
statements about what happened. And then you take that and you consider other witness
observations, the physical and scientific evidence, when you look at all of that, all of that
leads to one conclusion. It's him. It's no one else. It's simply him. No matter how many
times, no matter how many ways, the defendant's version that there were other people
involved is simply not supported by evidence.
"You know in terms of possibility, every February I'm a happy man. I'm a happy
man because on February 15th it's the start of spring training and as a lifelong Chicago
Cubs fan, I am filled with hope because it is possible, it is possible that this could be the
Cubs year. But inevitably, inevitably sometimes by June, sometimes late August, it is no
longer possible that it's going to be the Cubs year. I'll keep my fingers crossed in terms of
the season. I'll keep superstitions and I'll have to go spit in the river now or something.
But there's always possibilities, but there comes a point, just like in baseball that at some
point in the season it's no longer possible that our team is going to win the pennant or our
team is going to go to the World Series.
"There comes a point when it is not possible and it's not possible because it's not
supported by hard evidence. And the hard evidence, the circumstantial evidence here, all
overwhelmingly points to one person and one person alone."
Flack argues this analogy improperly sought to define reasonable doubt akin to the
puzzle analogy disapproved of in State v. Sherman, 305 Kan. 88, 115-18, 378 P.3d 1060
(2016). Again, we disagree.
In Sherman, the State showed a PowerPoint slide depicting Mount Rushmore with
Theodore Roosevelt's face removed. The slide contained the question, "'Do you have a
REASONABLE DOUBT this is Mt. Rushmore??'" and, "'Even though you can't see all
four figures!!'" 305 Kan. at 96. We disapproved because this analogy "improperly
equated a juror's prior knowledge about the picture being displayed to his or her 'life
experience.'" 305 Kan. at 116. It inappropriately "foster[ed] the illusion that the jurors
already know the full picture of the case they are hearing and are simply looking for
pieces of evidence to match it." 305 Kan. at 116. Contrary to that implication, "we insist
that jurors have minimal to no prior knowledge of a case precisely to prevent them from
seeking evidence to confirm a preconceived narrative and conclusion." 305 Kan. at 116.
Flack argues the baseball analogy just substitutes baseball wins and losses for
pieces of a puzzle. He argues the prosecutor was telling the jury it did not need to see the
full season play out and could turn off the TV and assume the worst "based on their
knowledge of how such things usually go." But one obvious problem with his argument
is that the analogy does not attempt to describe reasonable doubt, let alone define it. The
prosecution does not mention reasonable doubt until later, when it still does not try to
define it.
Based on the context, this permissibly appealed to the jury's common sense to
evaluate the weaknesses in Flack's case. See State v. Butler, 307 Kan. 831, 867-68, 416
P.3d 116 (2018) (permissible for prosecution to say the defendant's version of events was
ridiculous, not believable). The prosecutor specifically mentioned Flack's claim that more
people were involved and used baseball to argue the evidence does not support that. He
seems to have been saying that at some point, based on how a baseball season works, a
team might have so many losses it simply cannot win the season—it is not possible to get
to the World Series. By analogy, the prosecutor pointed out there was more than enough
contrary evidence to show Flack's version was impossible. We hold this was not error.
We find no prosecutorial error during the trial's guilt phase.
Flack alleges three prosecutorial errors that occurred in the penalty-phase closing
arguments. He claims the prosecutor erred by (1) repeatedly asking the jury to consider,
"What is justice?" (2) stating facts not in evidence when he implied Flack could access
mental health treatment in prison and stated Flack's family would be "healed" regardless
of the sentence, and (3) improperly interjecting opinion into the case by suggesting as a
"seasoned prosecutor" he knew the death penalty was appropriate here. We hold no error
Standard of review
Our standard of review for prosecutorial error claims in the penalty phase largely
remains unchanged from the guilt phase, although, in a capital murder trial, a prosecutor
has a "'heightened duty'" to refrain from committing error due to "'the life and death
nature of the proceedings.'" State v. Kleypas, 305 Kan. 224, 315, 382 P.3d 373 (2016)
(Kleypas II). If there are multiple prosecutorial errors, the inquiry "'is whether the total
effect of the cumulative [errors] found to exist, viewed in light of the record as a whole,
had little, if any, likelihood [or any reasonable possibility] of changing the jury's ultimate
conclusion regarding the weight of the aggravating and mitigating circumstances.'" 305
Kan. at 315.
"What is justice?"
Flack challenges the prosecutor repeatedly asking, "What is justice?" during
opening and closing statements. His opening statement began and ended with this theme:
"The penalty phase, it's a narrow band of cases in Kansas that require this
litigation. There has been a capital murder conviction. The elected law enforcement
official from this county, Mr. [Prosecutor], has decided that twelve well-vetted jurors
from the county where the crime occurred should decide this: What is justice? What is
. . . .
"The core issue comes down to this: Once the arguments are over, you're in the
jury room, deliberations have begun, the foreperson receives the instructions.
"The question will become: Abiding by the instructions that you're given,
considering the facts and the circumstances that you have found to exist, each of you will
have to ask yourself, what is appropriate justice?
"The evidence will show . . . a twenty-one year old mother that before the trigger
was pulled, and the contents of a PDX round tore through her brain, the evidence will
show that she was stripped from the waist down. The evidence will show that she's
unable to hold those who are around her because her hands are tied, bound behind her
"The evidence will show that she is unable to verbalize to those who are around
her because her mouth is gagged. The evidence will show that she is unable to clearly see
what is around her because her glasses have been taken off.
"The evidence will show that all she's left with is this: She can feel, smell, and
hear. She can feel the carpet on her face. She can feel the air on her naked legs and
buttocks. She is breathing the air in that master bedroom. And she is hearing the
footsteps, the footsteps of those around her. The words and the sounds of those around
her. What is appropriate justice? What is appropriate justice?
"The evidence will show that [K.B.'s] eighteen month old child, [L.B.], standing
by her dead mother's body. The evidence will show that the trigger was pulled and the
contents of that PDX round tore through her small torso. What is appropriate justice?
What is appropriate justice?
"Life without the possibility of parole, imposition of the death penalty? It is for
you to decide." (Emphases added.)
At the end of the State's pre-rebuttal closing, the prosecutor briefly returned to this
"The core issue in this case, abiding by the instructions given to you, considering
the facts and the circumstance that you have found to exist. Each of you will have to ask
. . . yourself this: What is appropriate justice? What is appropriate justice? A 21 year
old mother shot in the back of the head, followed by her 18 month old child shot in the
back. You have to make a decision, what is appropriate justice? What is appropriate
justice? Imposition of the death penalty? Life without the possibility of parole? That
decision is for you to make." (Emphases added.)
Flack compares these comments to disapproved prosecutorial appeals to justice
and sympathy. See, e.g., State v. Holt, 300 Kan. 985, 996-99, 336 P.3d 312 (2014). Flack
argues "the prosecutor was clearly asking, 'What is justice for them?'" The State counters
he takes the comments out of context—the prosecutor correctly set forth the penalty
phase procedures, and he never asked the jury to return a death verdict or argued it would
be appropriate. Even so, Flack asserts the comments "distracted the jury" from its duty to
decide the case on the facts and the law, as given by the judge.
We disagree. In Holt, we determined a prosecutor erred by "stating that the jury
has the 'privilege . . . to right a wrong,' and '[y]ou and only you can right the wrong that
the defendant has committed in taking a young man's life.'" Holt, 300 Kan. at 999. The
remarks were "akin to asking the jury to administer justice for the victim" rather than "a
general appeal for justice." 300 Kan. at 999. And we noted the prosecutor "'divert[ed] the
jury from the evidence so as to obtain a conviction based upon sympathy for the victim.'"
300 Kan. at 998.
Our pre-Holt caselaw similarly distinguished between a general appeal for justice
and an appeal for a jury to do justice for the criminal victims, although these cases
generally declined to draw a bright line. See, e.g., State v. Britt, 295 Kan. 1018, 1030-31,
287 P.3d 905 (2012) (prosecutor's request for the jury to "'do the right thing, here, find
him guilty'" was "more aptly characterized as a general appeal for justice that was not
explicitly tied to the community or the victim"); State v. Simmons, 292 Kan. 406, 419,
254 P.3d 97 (2011) ("[A] prosecutor commits misconduct during closing argument when,
in effect, he or she asks the jury to base its deliberations on sympathy for the victim or
victim's family or to otherwise argue the impact of a crime on a victim or victim's
family."); State v. Martinez, 290 Kan. 992, 1015, 236 P.3d 481 (2010) (prosecutor's
"comment urging the jury to tell A.G. 'she did the right thing' by reporting the incident"
was improper "because it appealed to the jurors' parental instincts and diverted their
attention from the evidence and the law"); State v. Nguyen, 285 Kan. 418, 425-26, 172
P.3d 1165 (2007) (noting a possible "distinction when the argument is asking for justice
for the specific victim" but speculating that "[p]erhaps the touchstone is whether the
argument seeks to divert the jury from the evidence" with "sympathy for the victim"; in
any event, a prosecutorial request for justice is permissible where "the prosecutor's
argument was largely evidence based, notwithstanding an underlying promotion of
awareness for the victim" "coupled with the admonition against sympathy and
prejudice"); State v. Ruff, 252 Kan. 625, 631-36, 847 P.2d 1258 (1993) (prosecutorial
exhortation for the jury to "'not allow this conduct to be tolerated in our county'"
constituted reversible prosecutorial misconduct).
Likewise, the post-Holt cases continue to recognize potential prosecutorial error
by improperly eliciting sympathy. See, e.g., State v. Gallegos, 313 Kan. 262, 276, 485
P.3d 622 (2021) (prosecutor's statements permissible because they did not appeal to jury's
sympathy, did not ask the jury to place itself in the victim's position, and did not ask for
justice for the victim); Chandler, 307 Kan. at 690 (comment urging for conviction
because "'she robbed her own children of their father and his fianc[ée]'" erroneous). But
here, the prosecutor was not arguing for a conviction; the jury already returned a guilty
verdict. Nor did the prosecutor ever directly ask the jury to return a death sentence or
suggest that such a sentence was appropriate.
Indeed, the prosecutor began opening arguments with the facially neutral
statement that "twelve well-vetted jurors from the county where the crime occurred
should decide this: What is justice?" And the prosecutor concluded his pre-rebuttal
closing on a similar open-ended note: "You have to make a decision, what is appropriate
justice? What is appropriate justice? Imposition of the death penalty? Life without the
possibility of parole? That decision is for you to make." Flack's prosecutor did not ask for
justice for the victims—he acceptably told the jurors their job was to determine a just
Mental health treatment and family healing
Flack next argues the prosecutor erred by commenting on facts outside the
evidence when he "implied to the jury" Flack would receive mental health treatment and
his family "would be 'healed' if he were sentenced to death." Flack asserts no evidence
shows that. But these characterizations are not entirely accurate:
"Over this time you've seen the sadness. Sadness can also be healing, healing.
Because there's something about a case like this that when you expose bad things to the
light, there's healing. There's healing.
"You know, for the healing for the Flack family, that can occur whether there's
the long journey towards execution or the long journey towards natural death. That
healing doesn't stop with whatever your decision is. And during that journey hopefully
Mr. Flack will get the treatment that he needs to address his mental health issues."
"A prosecutor is prohibited from arguing facts not in evidence, but generally has
wide latitude to make arguments based on reasonable inferences from the evidence
presented at trial." State v. Novotny, 297 Kan. 1174, 1189, 307 P.3d 1278 (2013). Here,
Flack advances little argument beyond pointing to the statements themselves and offering
conclusions, and he cites just one case, Chandler, 307 Kan. 657. But in Chandler, a
prosecutor committed reversible error when she told the jury a nonexistent protection
from abuse order had been filed against the defendant and repeatedly hammered that
fabricated fact during her closing. 307 Kan. at 678-84. That case hardly supports Flack.
Flack's characterizations are overstated. First, the prosecutor's mental health
comments presented only hope and desire, not fact, when he said, "[H]opefully Mr. Flack
will get the treatment that he needs to address his mental health." (Emphasis added.) He
did not tell the jury Flack would receive mental health treatment, nor did he even suggest
it was likely. And as the State points out, the record supports a reasonable inference that
mental health treatment might be available based on testimony Flack previously received
it in jail and prison. Second, the prosecutor's statements about Flack's family did not
promise healing, just that whatever healing they may experience would happen during
"the long journey towards execution or . . . natural death" and that "healing doesn't stop"
no matter the jury's decision. At most, this statement tried to convince the jury that
sympathy for Flack's family should not weigh heavily in its deliberations.
We hold neither statement was erroneous. The prosecutor did not impermissibly
state facts outside of evidence during closing.
Self-reference as "seasoned prosecutor" and suggesting, "If not this case, what case?"
Finally, Flack claims the prosecutor improperly bolstered himself as a "seasoned
prosecutor" and offered his opinion that this case warranted the death penalty. The State
counters the prosecutor properly requested jurors determine an appropriate sentence
given the facts, instructions, and weight of mitigating and aggravating circumstances. The
prosecutor said:
"I ask you to take [Defense]'s argument into consideration. And I hope after all
this that the attorneys in this case have represented our professional best.
"At the end of it, it comes down to what is justice? What is justice? Taking into
account all of the instructions, abiding by those instructions, looking at all the facts and
circumstances you found to exist.
"There is a dead 21 year old mother shot in the back of the head, bound and
gagged with her 18 month old daughter in that room. Then there's that 18 month old
daughter that is shot in the back. These cases are difficult on everyone. The question is,
what is justice for that scenario? For the facts and circumstances that you've seen here,
what is justice?
"The State of Kansas, the death penalty. If not this case, what case?"
Our law is clear: In the context of witness credibility, a prosecutor expressing an
opinion is a form of unsworn, unchecked testimony rather than commentary on the
evidence. State v. Pabst, 268 Kan. 501, 510, 996 P.2d 321 (2000). This tracks Rule 3.4(e)
of the Kansas Rules of Professional Conduct: "A lawyer shall not . . . state a personal
opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil
litigant or the guilt or innocence of an accused." KRPC 3.4(e) (2023 Kan. S. Ct. R. at
Flack mischaracterizes the nature and intent of the prosecutor's words. First, while
the prosecutor mentioned his experience as a "seasoned prosecutor," he did so during voir
dire and penalty-phase closing. During voir dire, the prosecutor asked one of the panels if
anyone was nervous. When three of the six raised their hands, he said, "[A]s you can tell
by the color of my hair, I'm a seasoned prosecutor and I've handled capital murder death
penalty cases before, also homicide cases, but I still get nervous." This statement's
purpose was simply to relax nervous jurors.
Second, the prosecutor used the phrase "seasoned prosecutor" during the penaltyphase closing colloquially to remark on his age, not to tell jurors to trust his judgment
over their own. After discussing the weighing process instruction, he said, "So you know,
at this point as a prosecutor and as you can see I'm a seasoned prosecutor, been around
awhile. I usually . . . zoom back in to the key place." Here, the "key place" was the master
bedroom where the bodies were found. But the prosecutor really wanted "to zoom in on
the courtroom," calling for the jurors to consider the presented facts and law.
Neither statement related to his separate query, "If not this case, what case?"
during penalty-phase closing. The logical leap is too large to conclude combining these
unrelated statements told the jury the prosecutor had seen a lot of cases and felt this one
was deathworthy. His comments were made far apart and separately. Their combined
effect was not error.
That said, it is possible the "if not this case" comment alone is error. As Flack
points out, at least two other jurisdictions have held similar comments to be error. The
Oklahoma Court of Criminal Appeals disapproved of a problematic prosecutor who had
run afoul of the court:
"[T]he prosecutor improperly pleaded with the jury to do justice 'and the only way you
can do that is bring back a sentence of death.' He also told the jury 'If this isn't a death
penalty case, what is?' It is error for a prosecutor . . . state his personal opinion as to the
appropriateness of the death penalty." (Emphasis added.) Torres v. State, 962 P.2d 3, 18
(Okla. Crim. App. 1998).
Although Torres does not give more context for the nearly identical statement, the
court ultimately ruled the statement along with the prosecutor's other errors were
harmless. 962 P.2d at 18.
Flack's second case, stemming from a Missouri habeas corpus petition, required
vacating the defendant's death sentence. There, the prosecutor spoke his opinion:
"I've been a prosecutor for ten years and I've never asked a jury for a death penalty, but I
can tell you in all candor, I've never seen a man who deserved it more than [the
defendant]. By returning your verdict in this case . . . that either means that you believe
beyond a reasonable doubt that he pulled the trigger, or that he had the frame of mind
that's consistent with pulling the trigger, and I submit to you, that [the defendant] did pull
the trigger, and didn't pull it once, but pulled it twice—executed an innocent man in cold
"So, where do we go from there? I say to you that I never saw a man who
deserved it more and I say that to you in complete sincerity, and it's my job, as I see it, to
tell you that." Newlon v. Armontrout, 693 F. Supp. 799, 804 (W.D. Mo. 1988), aff'd 885
F.2d 1328 (8th Cir. 1989).
The Newlon court held the prosecutor discussing declining to seek the death
penalty until this case was improper, especially when the death penalty statutes were
unconstitutional for much of that period. Newlon, 693 F. Supp. at 804-05. The Newlon
prosecutor continued that theme but added several more erroneous statements. He
emphasized he was the "'top law enforcement officer of the [c]ounty,'" compared the
defendant to infamous mass-murderers, personalized analogies to jurors defending their
own children, referenced war and courage, insinuated all murder should be punished with
death, and reassured jurors appellate review follows any death sentence. 693 F. Supp. at
808. In combination, the jury faced a "relentless, focused, uncorrected argument based on
fear, premised on facts not in evidence, and calculated to remove reason and
responsibility from the sentencing process." 693 F. Supp. at 808.
By contrast, the prosecutorial remark here, taken in context, permissibly and
simply requested jurors to accurately perform their jobs by following their instructions.
The prosecutor did not commit error.
The State charged Flack with capital murder based on the "intentional and
premeditated killing of more than one person as a part of the same act or transaction or in
two or more acts or transactions connected together or constituting parts of a common
scheme or course of conduct." K.S.A. 2012 Supp. 21-5401(a)(6). The instruction for
capital murder required the jury to find Flack "purposefully killed [K.B.] and L.B." The
State's notice of intent to seek the death penalty included the aggravator: "The defendant,
as to [K.B.], committed the crime in an especially heinous, atrocious, or cruel manner"
following K.S.A. 2012 Supp. 21-6624(f)'s exact language. (Emphasis added.)
Flack argues the heinous manner aggravator is limited to "the crime," while the
version of capital murder he was convicted of required multiple killings, so the State had
to allege and prove he killed both K.B. and L.B. in a heinous manner. We disagree. The
statutory scheme does not require this.
Standard of review
To the extent this issue requires statutory interpretation, it presents a question of
law subject to unlimited review. If the statutory language is plain and unambiguous, we
apply the language as written. State v. Dinkel, 314 Kan. 146, 155, 495 P.3d 402 (2021).
Flack equates the State's notice of intent to seek the death penalty with a charging
document. He cites State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016), to support his
claim the State needed to "charge" the heinous aggravator as to both K.B. and L.B. In
Dunn, we identified "three possible types of charging document insufficiency a criminal
defendant may challenge." 304 Kan. at 815. First, a charging document must meet "the
Kansas constitutional minimums of correct court and correct territory." 304 Kan. at
815. Second, it must allege "facts about the intent and action on the part of the defendant
that, if proved beyond a reasonable doubt, would constitute violation of a Kansas
criminal statute." 304 Kan. at 815. Third, it must satisfy "federal and state constitutional
standards for due process and notice, such that the defendant has an opportunity to meet
and answer the State's evidence and prevent double jeopardy." 304 Kan. at 815. The type
of deficiency determines the available remedies for each. 304 Kan. at 816-17.
Flack argues his claim falls within the second and third categories: The State
"failed to state facts that constitute a Kansas crime" and "the defective charge denied
[him] due process." Before discussing Dunn, and what it means here, we note the process
for pursuing the death penalty differs from charging the underlying crime of capital
murder. That distinction is critical to understanding Dunn's limitations.
In setting the second category's framework—charging the underlying crime of
capital murder—the Dunn court noted K.S.A. 22-3201(b) requires a charging document
to "state 'essential facts' constituting the crime charged." 304 Kan. at 811. The statute
emphasizes "'facts' rather than 'elements.'" 304 Kan. at 811. "A Kansas charging
document should be regarded as sufficient . . . when it has alleged facts that would
establish the defendant's commission of a crime recognized in Kansas." 304 Kan. at 811-
To determine whether the alleged facts constitute a Kansas crime, we use the
crime's statutory definition to determine if the factual allegations, if proved beyond a
reasonable doubt, would justify a guilty verdict. 304 Kan. at 812. The State charged Flack
under K.S.A. 2012 Supp. 21-5401(a)(6) with the "intentional and premeditated killing of
more than one person as a part of the same act or transaction or in two or more acts or
transactions connected together or constituting parts of a common scheme or course of
conduct." The capital murder's definition does not include aggravating circumstances.
Those are instead set forth in the death sentence procedure statutes, applicable only after
the State obtains a conviction for capital murder.
K.S.A. 2022 Supp. 21-6617(a) governs the State's requirements to give a written
notice of its intent to seek the death penalty. If the prosecutor fails to give the notice and
the defendant is convicted of capital murder, the sentence will be life imprisonment
without the possibility of parole, and death penalty cannot be imposed. K.S.A. 2022
Supp. 21-6617(a).
But the notice of intent is not the State's only obligation. The State must also
provide the defendant notice of all aggravating factor evidence it plans to use. See K.S.A.
2022 Supp. 21-6617(c). Notably, the subsection (c) notice does not need to be provided at
the same time as the subsection (a) notice. Kleypas I, 272 Kan. at 979. The Kleypas I
court distinguished between the two notice requirements. The notice of intent allows the
defendant to begin their preparation for trial as it serves notice that the case will indeed
be a death penalty case, thus allowing them to make choices regarding the retention of
counsel, plea bargaining, and preparation of mitigating factors. 272 Kan. at 979-80. On
the other hand, the subsection (c) notice permits, but does not require, the State to give
notice of aggravating circumstances. See K.S.A. 2022 Supp. 21-6617(c) ("Only such
evidence of aggravating circumstances as the state has made known to the defendant
prior to the sentencing proceeding shall be admissible."). The State need only give such
notice "within a reasonable time prior to trial to allow the defendant an opportunity to
prepare to defend against the aggravating circumstances." Kleypas I, 272 Kan. at 980.
Flack's claim the State must prove he killed both K.B. and L.B. in a heinous
manner does not neatly fit the charging deficiency paradigm under Dunn; it more closely
resembles an evidence sufficiency claim. The State met both statutory notice
requirements about its intent to seek the death penalty and its intended aggravating factor
evidence. Neither statutes nor caselaw supports such a claim.
K.S.A. 2022 Supp. 21-6624 sets out the aggravating circumstances available for
capital murder:
"(a) The defendant was previously convicted of a felony in which the defendant
inflicted great bodily harm, disfigurement, dismemberment or death on another.
"(b) The defendant knowingly or purposely killed or created a great risk of death
to more than one person.
"(c) The defendant committed the crime for the defendant's self or another for the
purpose of receiving money or any other thing of monetary value.
"(d) The defendant authorized or employed another person to commit the crime.
"(e) The defendant committed the crime in order to avoid or prevent a lawful
arrest or prosecution.
"(f) The defendant committed the crime in an especially heinous, atrocious or
cruel manner. A finding that the victim was aware of such victim's fate or had conscious
pain and suffering as a result of the physical trauma that resulted in the victim's death is
not necessary to find that the manner in which the defendant killed the victim was
especially heinous, atrocious or cruel. Conduct which is heinous, atrocious or cruel may
include, but is not limited to:
(1) Prior stalking of or criminal threats to the victim;
(2) preparation or planning, indicating an intention that the killing was meant to
be especially heinous, atrocious or cruel;
(3) infliction of mental anguish or physical abuse before the victim's death;
(4) torture of the victim;
(5) continuous acts of violence begun before or continuing after the killing;
(6) desecration of the victim's body in a manner indicating a particular depravity
of mind, either during or following the killing; or
(7) any other conduct the trier of fact expressly finds is especially heinous.
"(g) The defendant committed the crime while serving a sentence of
imprisonment on conviction of a felony.
"(h) The victim was killed while engaging in, or because of the victim's
performance or prospective performance of, the victim's duties as a witness in a criminal
Flack correctly states the heinous manner aggravator applies to "the crime," not
the crime's elements, but his conclusion that each killing in a multiple-killing capital
murder must have been committed heinously does not necessarily follow.
As readily seen, the aggravating circumstances apply to various subjects—such as
"the defendant," "the crime," and "the victim"—between subsections. Subsection (f)
defines the heinous manner aggravator with both "the crime" and "the victim." It provides
a nonexhaustive list of circumstances a jury may find heinous including conduct
concurrent with the act of killing or conduct not necessarily concurrent with a killing,
such as prior stalking and planning or preparation. K.S.A. 2022 Supp. 21-6624(f)(1)-(2).
Finally, subsection (f) encompasses a catchall provision of "any other conduct" the jury
"expressly finds is especially heinous." K.S.A. 2022 Supp. 21-6624(f)(7).
So, rather than requiring the heinous manner aggravator apply to each killing, the
statute instead focuses on whether "the crime" in total was committed in a heinous
manner. Nothing in the statute supports Flack's reading. Under our death penalty scheme,
any finding of an aggravating circumstance, not outweighed by mitigating circumstances,
is sufficient to sentence the defendant to death. K.S.A. 2022 Supp. 21-6617(e). The
scheme does not assign weight to the number of aggravating circumstances; the finding
of such a circumstance merely triggers the weighing process.
The State alleged the heinous manner circumstance and gave Flack notice about its
intended evidence to prove the circumstance specifically related to Flack killing K.B.
Imposing a death sentence here did not deprive Flack of due process.
Flack challenges two jury instructions from the penalty phase. He argues the first
penalty-phase instruction that informed jurors a guilty verdict would be followed by a
separate sentencing proceeding erroneously implied the jury would not be responsible for
sentencing. He also contests the verdict form alleging it told jurors they had to reach a
unanimous decision to give him a life sentence.
Standard of review
We review jury instructions under a three-step framework. First, we determine if
the issue was properly preserved below. Second, we consider the claim's merits to decide
whether error occurred below. At this step, we consider if the challenged instruction was
legally and factually appropriate. We exercise unlimited review of the entire record and
view the evidence in the light most favorable to the requesting party. Finally, if there was
error, we examine if the error was harmless. State v. Gleason, 305 Kan. 794, 800-01, 388
P.3d 101 (2017); Kleypas II, 305 Kan. at 305-06.
The first instruction told the jury that "when a defendant has been found guilty of
capital murder, a separate sentencing proceeding shall be conducted to determine whether
the defendant shall be sentenced to death." (Emphasis added.) At trial, Flack requested to
replace "shall" with "may" because it implies "the jury was not ultimately responsible
for" sentencing. The court declined, and before us Flack raises the argument again.
There may be a grain of truth to Flack's claim in that a penalty phase is not needed
if the State does not seek the death penalty. See K.S.A. 2022 Supp. 21-6617(a) (requiring
the State give written notice within seven days of arraignment it intends to seek the death
penalty). Otherwise, a person convicted of capital murder receives a life sentence. But his
desired language misstates the law because a person can only be sentenced to death if a
jury makes the necessary findings. Changing "shall" to "may" could lead the jury to
believe the State had another procedural option to obtain a death sentence, and "the
uncorrected suggestion that the responsibility for any ultimate determination of death will
rest with others presents an intolerable danger." Caldwell v. Mississippi, 472 U.S. 320,
333, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985).
Whether a separate sentencing proceeding happens in every capital case or only
after the State decides to pursue that option, the given instruction here fairly stated the
law and did not mislead the jury.
Next, at the penalty phase's conclusion, the court instructed the jury on completing
the verdict form, explaining, "[I]f one or more jurors are not persuaded beyond a
reasonable doubt that aggravating circumstances are not outweighed by mitigating
circumstances, then you shall sign the appropriate alternative verdict form indicating the
jury is unable to reach a unanimous verdict sentencing the defendant to death."
(Emphasis added.) The verdict form provided two options: (1) the standard and
necessary findings to impose a death sentence with space to note applicable aggravating
factors, and (2) "We, the jury . . . state that we are unable to reach a unanimous verdict
sentencing the defendant to death." (Emphasis added.) Over Flack's objection the "unable
to" language implied jurors must reach a unanimous verdict for or against the death
sentence, the court declined to replace "unable" with "did not."
His suggested language advances a novel reading of the death penalty sentencing
statutes. K.S.A. 2022 Supp. 21-6617(e) provides:
"If, by unanimous vote, the jury finds beyond a reasonable doubt that one or
more of the aggravating circumstances . . . 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 to life without the possibility of parole. The jury, if its verdict is a
unanimous recommendation of a sentence of death, shall designate in writing, signed by
the foreman of the jury, the statutory aggravating circumstances which it found beyond a
reasonable doubt. If, after a reasonable time for deliberation, the jury is unable to reach
a verdict, the judge shall dismiss the jury and impose a sentence of life without the
possibility of parole." (Emphases added.)
According to Flack, the third sentence conflicts with the first. He argues,
"Sentence one says that the inability to agree is a life verdict; sentence three seems to say
the inability to agree is not a verdict at all." But even if Flack's suggested conflict exists,
his preferred interpretation does not materially differ from the Kleypas I court's
understanding of the statute. In Kleypas I, the court held a sentencing verdict form
stating, "'We, the jury . . . unanimously determine that a sentence as provided by law be
imposed by the Court,'" misled the jury it must reach a unanimous verdict. Kleypas I, 272
Kan. at 1062. K.S.A. 2022 Supp. 21-6617's predecessor "does not require the jury to
unanimously conclude that a death sentence is unwarranted in order to sentence the
defendant to a punishment other than death; rather, the jury must only fail to unanimously
conclude beyond a reasonable doubt that a death sentence is warranted." 272 Kan. at
Flack correctly notes the jury is not under a duty to reach a unanimous verdict, but
he fails to establish the given instruction might lead jurors to believe such a duty existed.
The instruction and verdict form accurately state the law and could not have misled the
jury. See State v. Sims, 308 Kan. 1488, 1505, 431 P.3d 288 (2018) (jury instructions
reviewed "together as a whole," not in isolation). The instruction informed the jury the
sentence would be life without parole if it could not reach a verdict, and the verdict form
provided an option to state it could not reach a unanimous verdict of death. Nothing
implied it must reach a unanimous decision to impose a life sentence.
Flack raises a categorical Eighth Amendment challenge to his death sentence, even
though he acknowledges we recently addressed and rejected nearly identical claims in
Kleypas II, 305 Kan. at 328, 337, and State v. Kahler, 307 Kan. 374, 406, 409, 410 P.3d
105 (2018). In both cases, counsel compared the mentally ill to intellectually disabled
people to establish they are less culpable for their crimes. Flack reiterates those
arguments without adding anything materially different from prior cases, so Kleypas II
controls. We see no reason to revisit its holding.
Flack challenges the death penalty's constitutionality under section 1 of the Kansas
Constitution Bill of Rights. We addressed the same issue in State v. Carr, 314 Kan. 615,
625-26, 502 P.3d 546 (2022) (R. Carr II), and State v. Carr, 314 Kan. 744, 753, 502 P.3d
511 (2022). In those cases, we characterized the argument as contending "section 1
protects the right to life, and Kansas' capital sentencing scheme unconstitutionally
infringes upon this right." R. Carr II, 314 Kan. at 627. We rejected that argument,
"The historical record reflects the framers did not intend the term 'inalienable' in
section 1 of the Kansas Constitution Bill of Rights to be construed as 'absolute' and
'nonforfeitable.' Instead, a careful reading of section 1, coupled with the transcripts of the
convention debate, demonstrates that the term 'inalienable' refers only to one's ability to
transfer his or her right or interest to another person. Though inalienable, the framers
viewed the natural rights guaranteed within this section to be forfeitable in civil society.
So construed, the framers did not intend for section 1 to impede or limit the State's
authority to punish individuals for their criminal conduct." 314 Kan. 615, Syl. ¶ 4.
Additionally, Flack attacked the death penalty under section 5 of the Kansas
Constitution Bill of Rights. R. Carr II also addressed that issue, as a "constitutional
challenge to the practice of 'death qualifying' juries in Kansas—the process of removing
prospective jurors for cause . . . when their conscientious objection to capital punishment
substantially impairs their ability to fulfill the oath and obligations of a juror." 314 Kan.
at 645. We rejected that argument, holding:
"[B]oth the plain meaning and historical record confirm that a 'jury' is defined as a group
comprised of persons who will determine issues of fact and return a decision based on the
evidence and in accordance with the law as instructed. Death qualification . . . removes
only those prospective jurors who cannot fulfill these obligations due to conscientious
objection to the death penalty, i.e., the statute authorizes removal of those prospective
jurors excluded from the constitutional definition of a 'jury.' Thus, death qualification
facilitates the very jury trial right guaranteed by section 5. Moreover, when the Kansas
Constitution was adopted in 1859, the common law did not preclude, and in fact
authorized, this procedure. For these reasons, we hold that death qualification under
K.S.A. 22-3410 does not violate section 5." 314 Kan. at 653.
Flack offers no new authority or argument warranting revisiting of R. Carr II.
Based on our rulings, the cumulative error doctrine has no application. State v.
Sieg, 315 Kan. 526, 536, 509 P.3d 535 (2022).

Outcome: We affirm Flack's convictions and sentence. No errors warrant reversal of his
convictions or sentence. We conclude "the evidence supports the findings that" one or more aggravating circumstances "existed and that any mitigating circumstances were insufficient to outweigh the aggravating circumstances." See K.S.A. 2022 Supp. 21-
6619(c)(2). We also conclude the jury imposed the death sentence without "the influence of passion, prejudice or any other arbitrary factor." See K.S.A. 2022 Supp. 21-6619(c)(1

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