Kansas Supreme Court, Exercises of Law

Download Kansas Supreme Court and more Exercises Law in PDF only on Docsity! 1 IN THE SUPREME COURT OF THE STATE OF KANSAS No. 90,044 STATE OF KANSAS, Appellee, v. REGINALD DEXTER CARR, JR., Appellant. SYLLABUS BY THE COURT 1. The Sixth Amendment to the United States Constitution guarantees an accused in all serious criminal prosecutions the right to trial by an impartial jury. This protection is incorporated into and made applicable to the states through the due process provision of the Fourteenth Amendment. The Kansas Constitution includes a similarly worded guarantee for its citizens in Section 10 of the Bill of Rights, which recognizes a defendant's right to a speedy and public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. We have analyzed the state constitutional provision in the same way as the federal constitutional provision. 2. K.S.A. 22-2616(1) gives Kansans a vehicle to obtain a change of venue to prevent a local community's hostility or preconceived opinion on a defendant's guilt from hijacking his or her criminal trial. 2 3. Seven factors are considered relevant to evaluate whether the existence of presumed prejudice demands a change of venue: (1) media interference with courtroom proceedings; (2) the magnitude and tone of the coverage; (3) the size and characteristics of the community in which the crime occurred; (4) the amount of time that elapsed between the crime and the trial; (5) the jury's verdict; (6) the impact of the crime on the community; and (7) the effect, if any, of a codefendant's publicized decision to plead guilty. 4. On appeal, a claim of presumed prejudice is judged by a mixed standard of review. A district judge's findings of fact on the seven relevant factors considered in determining whether presumed prejudice demands a change of venue are examined to determine whether they are supported by substantial competent evidence in the record. The district court's weighing of the factors and ultimate legal conclusion on whether presumed prejudice has been established is reviewed de novo. 5. In this case, the district judge did not err by refusing defendant's motions to transfer venue out of Sedgwick County on the basis of presumed prejudice. 6. In reviewing for actual prejudice from refusal to change venue, an appellate court examines whether the district judge had a reasonable basis for concluding that the jurors selected could be impartial. The crucible for determination of actual prejudice is voir dire. The judge must review the media coverage and the substance of the jurors' statements at voir dire to determine whether a community-wide sentiment exists against 5 evidence for the whole or some of the other defendants would become a competent and compellable witness on the separate trials of such other defendants. 14. A party moving for severance has the burden to demonstrate actual prejudice to the district court judge, who has a continuing duty at all stages of a trial to grant severance if prejudice does appear. 15. On appeal from a denial of severance, the party claiming error has the burden to establish a clear abuse of discretion by the trial judge. Once abuse of discretion is established, the party benefitting from the error bears the burden of demonstrating harmlessness. 16. The district judge abused his discretion in this case by repeatedly refusing to sever the defendant's trial from that of his codefendant brother. However, because of the overwhelming independent evidence presented by the State, the judge's failure to sever the guilt phase of the trial was harmless error. 17. The district judge in this case did not abuse his discretion by denying defendant's motion to sever noncapital counts from capital counts. Similarity of punishment is not an indispensable attribute of crimes of same or similar character under K.S.A. 22-3202(1). 18. K.S.A. 22-3410(2)(i) permits a district judge to remove a prospective juror for cause when his or her "state of mind with reference to the case or any of the parties" 6 persuades the judge that there is doubt he or she can act impartially. A criminal defendant has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause. But this right is balanced against the State's strong interest in seating jurors who are able to apply the sentence of capital punishment within the framework provided for by the federal Constitution and state law. 19. In this case, the district judge's excuse of prospective juror M.W. for cause was fairly supported by the record and not an abuse of discretion under K.S.A. 22-3410(2)(i). Eleven other prospective jurors to whom defendant and his codefendant brother compare M.W. expressed a willingness to follow the law, while M.W. did not. 20. The same standard of review and legal framework applicable to a district judge's decision to excuse a prospective juror who cannot set aside his or her objection to the death penalty applies equally to decisions not to excuse prospective jurors challenged for cause based on their inability to consider a sentence other than death. 21. The district judge's refusal to excuse four prospective jurors for cause was fairly supported by the record and not an abuse of discretion under K.S.A. 22-3410(2)(i). These four prospective jurors expressed a willingness to consider and give effect to mitigating evidence. 22. Section 7 of the Kansas Constitution Bill of Rights provides that "[n]o religious test or property qualification shall be required for any office of public trust." This section 7 does not provide any greater limitation than already provided under K.S.A. 43-156, which provides that "[n]o person shall be excluded from service as a grand or petit juror in the district courts of Kansas on account of . . . religion . . . ." 23. K.S.A. 43-156 is in some tension with K.S.A. 22-3410(2)(i)—which provides that a prospective juror may be challenged for cause as unqualified to serve when he or she is partial or biased—because K.S.A. 22-3410(2)(i) requires a prospective juror who can never participate in imposition of the death penalty to be excused for cause as partial, even though his or her scruples have a basis in a religious code. Jurors cannot be discriminated against on the basis of their religious belief or lack of belief, but they can be excluded from jury service when their belief or nonbelief makes it impossible for them to act in conformance with the signature requirement of that service: impartiality under the rule of law. 24. In this case, the district judge did not violate Section 7 of the Kansas Constitution Bill of Rights or K.S.A. 43-156 when he excused prospective jurors for cause because they had said their religious beliefs would prevent them from behaving impartially. 25. A district judge's handling of a challenge to a criminal defendant's peremptory strike under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), involves three steps, each subject to its own standard of review on appeal. Under the first step, the party challenging the strike must make a prima facie showing that the other party exercised a peremptory challenge on the basis of race. Appellate courts utilize plenary or unlimited review over this step. If a prima facie case is established, the burden shifts to the party exercising the strike to articulate a race-neutral reason for striking the 10 32. In this case, the jury instructions on capital murder under K.S.A. 21-3439(a)(4) failed to state the elements of the crime because they relied on sex-crime instructions defining the underlying sex crime for a victim other than the victim of the capital murder. In addition, three of the four counts of capital murder under K.S.A. 21-3439(a)(6) were multiplicitous with the first count. Under Stromberg v. California, 283 U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117 (1931), and Yates v. United States, 354 U.S. 298, 77 S. Ct. 1064, 1 L. Ed. 2d 1356 (1957), the combination of these errors requires reversal of three of the defendant's four convictions of capital murder. 33. The defendant's appellate claim that a special unanimity instruction was required because of a multiple acts problem on the capital murders charged under K.S.A. 21- 3439(a)(4) is moot. 34. The defendant's appellate claim that he is entitled to reversal of his convictions for sex offenses on which capital charges under K.S.A. 21-3439(a)(4) were based is moot. 35. In this case, the State's evidence against the defendant on aggravated burglary, viewed in the light most favorable to the prosecution, was sufficient to support a reasonable factfinder's verdict of guilty. 36. Although it is possible to prosecute a male as a principal or an aider or abettor for causing a rape or attempted rape under Kansas law, the State did not succeed in charging those crimes here; and the defendant's convictions based on coerced victim-on-victim sex 11 acts are void because the amended complaint failed to endow the district court with subject matter jurisdiction. 37. The State's evidence against the defendant as an aider and abettor of a victim's digital penetration of herself, viewed in the light most favorable to the prosecution, was sufficient to support a reasonable factfinder's guilty verdict on rape. 38. In this case, the defendant's conviction as an aider and abettor of penile rape of a victim immediately after digital rape of the same victim rests on unitary conduct and must be reversed as multiplicitous. 39. In this case, abundant evidence supported the defendant's conviction as an aider and abettor of his codefendant's sex crimes. It is not necessary that an aider and abettor be contemporaneously aware that his or her principal is committing a crime that the aider and abettor has encouraged or facilitated. It also is not necessary that an aider and abettor be in the immediate vicinity of the principal and the victim during commission of the crime. 40. Although omission of a defendant's name from a charging document may pose a subject matter jurisdiction problem, the defendant's name was included in Count 43 charging attempted rape in this case. Any technical defect in this charge did not deprive the district court of subject matter jurisdiction. 12 41. Kansas' third-party evidence rule does not prevent a criminal defendant from introducing circumstantial evidence of an uncharged person's guilt simply because the State's case against the defendant includes direct evidence. The district judge abused his discretion in excluding relevant evidence of a third party's guilt proffered by the defendant in the form of the defendant's own testimony about observations of the third party, including the third party's possession of victims' stolen property. 42. The hearsay rule is subject to a K.S.A. 60-460(j) exception for out-of-court statements against the declarant's interest. The district judge abused his discretion in excluding the defendant's testimony about statements made by his codefendant brother that, based on the record before this court, qualified as declarations against interest. 43. A criminal defendant is entitled to a meaningful opportunity to present a complete defense, but protection of this fundamental right is tempered by sensible control of the criminal trial process, including procedural rules and evidentiary rulings that serve legitimate interests. When a district judge excludes relevant, admissible, and noncumulative evidence integral to a defendant's theory of defense, without furthering a legitimate interest, the right to present a defense is violated. 44. The district judge abused his discretion by excluding evidence to support the defendant's defense under a misinterpretation of the third-party evidence rule and by refusing to apply a K.S.A. 60-460(j) hearsay exception, which violated the defendant's right to present a defense. However, such a constitutional error, even when it implicates a defendant's right to testify, is subject to evaluation for harmlessness. 15 intent crimes demanding proof of premeditation. The error does not merit reversal as clear error because of the strength of the State's premeditation case. 54. A jury instruction stating "[a] person who, either before or during its commission, intentionally aids, abets, advises, or counsels another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the person's participation, if any, in the actual commission of the crime" is adequate to communicate that the aider and abettor must personally possess the same specific intent as the principal. There was no error in this case attributable to the district judge's failure to tell the jury explicitly that the State must prove an aider and abettor's premeditation in order to convict him of capital murder or attempted first-degree premeditated murder. 55. Omission of "by such person as a probable consequence of committing or attempting to commit the crime intended" from the end of PIK Crim. 3d 54.06 does not result in clear error because of a failure to communicate a need for causation and a measurement of probability. 56. A prosecutor is permitted wide latitude in discussing the evidence. The prosecutor's first few dramatic sentences in her closing argument on this 58-count case did not exceed the wide latitude by inviting jurors to put themselves in the position of the victims. 16 57. Cumulative error can require reversal of all of a criminal defendant's convictions even when one error standing alone does not. Cumulative error does not require reversal of all of the defendant's convictions in this case. 58. The Eighth Amendment to the United States Constitution requires a jury to make an individualized capital sentencing determination. It does not categorically mandate separate penalty phase proceedings for each codefendant in a death penalty case. The Eighth Amendment was violated in this capital case when the district judge refused to sever the penalty phase of the proceedings; because the codefendants' mitigation cases were at least partially antagonistic; because evidence admitted in the joint penalty phase may not have been admitted in a severed proceeding; and because mitigating evidence as to one codefendant was prone to be used by the jury as improper, nonstatutory aggravating evidence against the other. 59. The standard of review and the ultimate question that must be answered with regard to whether error in the penalty phase of a capital trial was harmless is whether the court is able to find beyond a reasonable doubt that the error, viewed in the light of the record as a whole, had little, if any, likelihood of changing the jury's ultimate conclusion regarding the weight of the aggravating and mitigating circumstances. The test is not whether a death penalty sentence would have been imposed but for the error; instead the inquiry is whether the death verdict actually rendered in this trial was surely unattributable to the error. In this case, the judge committed reversible error by refusing to sever the penalty phase of the codefendants' trial. 17 60. The State's compliance with K.S.A. 21-4624(a) provides a capital murder defendant with constitutionally sufficient notice of aggravating factors. 61. K.S.A. 2013 Supp. 21-6624's aggravators—that the defendants knowingly or purposely killed or created a great risk of death to more than one person; that they committed the crime for themselves or for another for the purpose of receiving money or any other thing of monetary value; that they committed the crime in order to avoid or prevent a lawful arrest or prosecution; and that they committed the crime in an especially heinous, atrocious, or cruel manner—are adequate to channel the jury's discretion in the penalty phase of a capital case. 62. Due process requires a reasonably accurate and complete record of the trial proceeding in order to allow meaningful and effective appellate review. And, when a claim appears to have a substantial foundation based on the available record but the claim cannot be reviewed because of the incomplete or inaccurate transcript, the proper remedy is reversal. Still, a defendant does not have a constitutionally protected right to a totally accurate transcript of the criminal proceedings. A record that is incomplete but that involves no substantial or significant omissions does not require reversal. Appellants seeking reversal on the grounds that they are denied due process because of an inaccurate or incomplete transcript must make the best feasible showing possible that a complete and accurate transcript might have changed the outcome of the appeal. If no such showing is made, no relief is appropriate. 20 includes not only testimony that contradicts the witnesses on the opposite side, but also corroborates previous testimony. There is no inflexible legal requirement that rebuttal or surrebuttal evidence be new. A district judge who excludes surrebuttal testimony because he or she believes it will not be new abuses his or her discretion. 70. In the absence of a request, the trial court has no duty to inform the jury in a capital murder case of the term of imprisonment to which a defendant would be sentenced if death were not imposed. Where such an instruction is requested, the trial court must provide the jury with the alternative number of years that a defendant would be required to serve in prison if not sentenced to death. Additionally, where a defendant has been found guilty of charges in addition to capital murder, the trial court upon request must provide the jury with the possible terms of imprisonment for each additional charge and advise the jury that the determination of whether such other sentences shall be served consecutive to or concurrent with each other and the sentence for the murder conviction is a matter committed to the sound discretion of the trial court. 71. A district judge must instruct a penalty phase jury in a capital case not only that it need not be unanimous on the existence of a mitigating circumstance but also that a mitigating circumstance need not be proved beyond a reasonable doubt. 72. It is inadvisable for an aggravating circumstances instruction in the penalty phase of a capital case to reference a generic crime rather than capital murder. 21 73. An instruction to a jury in a penalty phase of a capital case that reads: "Mitigating circumstances are those which in fairness may be considered as extenuating or reducing the degree of moral culpability or blame or which justify a sentence of less than death, even though they do not justify or excuse the offense. In this proceeding, you may consider sympathy for a defendant. The appropriateness of exercising mercy can itself be a mitigating factor in determining whether the State has proved beyond a reasonable doubt that the death penalty should be imposed," is not erroneous because it equates mercy to a mitigating factor. 74. The aggravating circumstances instruction for a penalty phase in a capital case must be corrected to be consistent with the verdict form designed to cover the situation when the jury agrees unanimously on the existence of an aggravating circumstance but cannot agree unanimously on how it weighs against any mitigation. Appeal from Sedgwick District Court; PAUL W. CLARK, judge. Opinion filed July 25, 2014. Affirmed in part, reversed in part, sentence of death vacated, and case remanded. Debra J. Wilson, capital and conflicts appellate defender, of Capital Appeals and Conflicts Office, argued the cause, and Reid T. Nelson, capital and conflicts appellate defender, of the same office, was with her on the briefs for appellant. Kim T. Parker, deputy district attorney, argued the cause, and Debra S. Peterson, special prosecutor, David Lowden, chief attorney, Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, former district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the briefs for appellee. 22 The opinion of the court was delivered by Per Curiam: Defendant Reginald Dexter Carr, Jr., and his brother, Jonathan D. Carr, were jointly charged, tried, convicted, and sentenced for crimes committed in a series of three incidents in December 2000 in Wichita. This is R. Carr's direct appeal from his 50 convictions and 4 death sentences. In the first incident on December 7 and 8, Andrew Schreiber was the victim. The State charged R. Carr and J. Carr with one count of kidnapping, one count of aggravated robbery, one count of aggravated battery, and one count of criminal damage to property. The jury convicted R. Carr on all counts and acquitted J. Carr on all counts. In the second incident on December 11, Linda Ann Walenta was the victim. The State charged R. Carr and J. Carr with one count of first-degree felony murder. The jury convicted both men. In the third incident on December 14 and 15, Heather M., Aaron S., Brad H., Jason B., and Holly G. were the victims of an invasion at the men's Birchwood Drive home that led to sex crimes, kidnappings, robberies, and, eventually, murder and attempted murder. The State charged R. Carr and J. Carr with eight alternative counts of capital murder, four based on a related sex crime under K.S.A. 21-3439(a)(4) and four based on multiple first- degree premeditated murders under K.S.A. 21-3439(a)(6); one count of attempted first- degree murder; five counts of aggravated kidnapping; nine counts of aggravated robbery, eight of which were alternatives, four based on use of a dangerous weapon and four based on infliction of bodily harm; one count of aggravated burglary; 13 counts of rape, eight of which were based on coerced victim-on-victim sexual intercourse and one of which was based on a victim's coerced self-penetration; three counts of aggravated criminal sodomy, two of which were based on coerced victim-on-victim oral sex; seven counts of attempted 25 The Schreiber Incident and Investigation The first incident began when Schreiber went to a convenience store at 21st and Woodlawn at 10:45 p.m. on December 7, 2000. He parked his 1998 Ford Expedition on the side of the building and went inside to make a purchase. Just after he returned to his car and sat down in the driver's seat, a man holding a small, black, semi-automatic handgun palm down approached and placed the gun's barrel against the glass of the window in the driver's door. The man ordered Schreiber to move over to the front passenger seat. As Schreiber followed the order and the man climbed into the driver's seat, the man hit Schreiber in the back of the head with the gun and told him to hurry up. Once both were situated, the man backed the Expedition out of the parking lot and drove away. As he was driving, he asked Schreiber if he had any money. Schreiber said yes and handed over his wallet. The man pulled into a nearby alley, and a second man came up to the front passenger window and pointed another gun at Schreiber. The driver ordered Schreiber to let the other man into the front passenger seat and then get into a middle seat behind the front seat of the Expedition. As the second man got into the car, he hit Schreiber in the head with his gun and told Schreiber not to look at him. The two men asked Schreiber if he had an ATM card, remarking that someone who drove a car like the Expedition must have money. When Schreiber said he had an ATM card, the driver gave Schreiber his wallet and had him get his ATM card out. Schreiber then handed the wallet back to the driver. 26 The driver went to a nearby ATM, pulling up beside it so that Schreiber could access the machine through the rear passenger window. Schreiber told the men that he could withdraw only $300 at a time. They instructed him to withdraw $300, and, as the machine dispensed the money, the men told Schreiber to hand it over his shoulder without looking at them, which he did. The passenger grabbed the money. The two men then told Schreiber to hand them the receipt, which he did in the same way. When the passenger determined from the receipt that Schreiber still had money, he said they were not done yet. The driver went to a second ATM, where Schreiber again withdrew the maximum of $300. Again, the men asked for the receipt, and, after determining that Schreiber still had money in his account, they again said they were not done. At a third ATM, Schreiber tried to withdraw $300, but there were insufficient funds to cover that amount. The men told Schreiber to try to get $200, and the transaction processed successfully. Schreiber handed the passenger the money and the receipt in the same way that he did at the first and second ATMs. When the passenger looked at the third receipt, he said they were going to leave Schreiber with 8 dollars and some change, which the two men appeared to find funny. During the entire time the two men took Schreiber from ATM to ATM, the second man held a gun to Schreiber's head. Schreiber described the passenger's gun as a dark semi-automatic handgun. During the episode, including a stretch of driving when the Expedition moved north of the convenience store and then west on Kansas Highway 96, the men demanded that Schreiber remove any jewelry and give it to them. Schreiber handed over a silver Guess watch with a blue face. While he was removing the watch, he turned his head and was again hit on the head and told not to look at the two men. 27 The men also discussed what they were going to do with Schreiber, including the possibility of dropping him off on a dirt road. After driving on several dirt roads bordered by open fields, however, the men determined that the locations were not remote enough for their purposes. The men also discussed the Expedition, the driver commenting on how much he liked it and wanted one. The passenger said at one point that he planned to take Schreiber's pants and shoes when they dropped him off, because it was so cold outside. The passenger appeared to be amused by his own remark. Eventually, the men took Schreiber back into town and stopped at a car wash near Windsor at Woodgate Apartments on East 21st Street. There, after two switches between the positions of the passenger and Schreiber, they told Schreiber to lie face down on the floor in front of the middle seat. They also discussed dropping the second man off at their car. After leaving the car wash, the driver stopped the Expedition again and the passenger got out of the car. As he left, he reminded the driver to be sure to wipe down the Expedition. The driver told the passenger to follow him. Schreiber heard another vehicle. Both cars were driven for several more minutes and then stopped. The driver told the other man that they had not arrived at the right spot and that the second man should continue to follow. The two cars were driven for another 5 to 10 minutes before they were stopped again. Schreiber could tell that this time the cars had left the paved road. Schreiber heard the driver turn off the ignition and then wipe the surfaces in the Expedition. The driver then got out of the Expedition and had a discussion with the second man about whether they were going to leave Schreiber's keys behind. The second man then told Schreiber that the two men were going to put the keys in the street. The driver 30 Once transported to the hospital, Walenta provided somewhat more detailed descriptions of the gunman, although they varied in certain respects from one another. She described the gunman as a black male in his 30s with a medium build. She said his hair was long, straight, and wiry, and described it as shoulder-length with corkscrews. At different points, she estimated his height at between 5 feet 7 inches and 6 feet; as between 5 feet 9 inches and more than 6 feet; and as approximately 6 feet. The only description she was able to give of the gunman's clothing was that he might have been wearing a beige trench coat. Walenta suffered three gunshot wounds, and one of the bullets severed her spinal cord, rendering her paraplegic. But she began recovering during her stay in the hospital and was scheduled to be transferred to a rehabilitation facility on January 2, 2001. That day, however, Walenta suffered a pulmonary embolus—a complication of her paralysis— and died. The Quadruple Homicide and Crimes Leading to It The third incident began on December 14, 2000, at a home shared by Aaron S., Brad H., and Jason B. at 12727 Birchwood, the middle unit of a triplex at the intersection of 127th and Birchwood. Holly G., who was the girlfriend of Jason B., was with Jason B. at the home. Holly G. had her dog with her as well. Aaron S. and his friend, Heather M., also were at the home, as was Brad H. As Holly G. and Jason B. began getting ready for bed at about 10:30 p.m., Holly G. pulled her hair back and fastened it with a plastic clip. Jason B. turned off the front 31 porch light, made sure the front door was locked, and then came to bed. Holly G.'s dog was in Jason B.'s bedroom with Holly G. and Jason B. A few minutes later, the porch light came on again. Holly G. heard Aaron S. talking to someone whose voice she did not recognize. Then Jason B.'s bedroom door burst open, and a tall black man with a gun came through the doorway. Jason B. screamed as the gunman yanked the covers off of the bed. A second black man, holding onto Aaron S. by the shirt, came into the room and pushed Aaron S. onto the bed with Holly G. and Jason B. The man also was armed. The two intruders asked if anyone else was in the house and were told Brad H. was downstairs. One of the intruders went downstairs to get Brad H. while the other stayed in the bedroom. The intruder who stayed upstairs kept demanding to know if there was anyone else in the house, saying, "[D]on't lie, don't lie." Aaron S. eventually told him that Heather M. was in the other upstairs bedroom. When the intruder who had gone downstairs returned to the bedroom with Brad H., he was carrying a golf club, and he ordered Brad H. onto the floor at the foot of the bed. One of the intruders retrieved Heather M. from the other bedroom and told her to get on the floor in Jason B.'s bedroom as well. The intruders demanded to know where the phones in the house were and whether there was a safe. One of them was shouting, "Where's the safe? A house this fucking nice[,] there's got to be a safe!" One looked around the house while the other stood guard over the five friends. At one point, the intruders also said that someone needed to "shut . . . up" Holly G.'s dog or they would shoot it. Eventually the dog was muzzled. The intruders also demanded to know who among Heather M., Aaron S., Brad H., Jason B., and Holly G. had money. When none had any cash, the intruders asked who had 32 ATM cards. Each raised his or her hand, and the intruders asked each how much money he or she had in the bank. After obtaining this information, the intruders had a whispered discussion. They then ordered the five victims to remove their clothes. The intruders then pulled all of the clothes out of the closet in Jason B.'s bedroom, ordered the five into the closet, and told them to sit down. They were threatened not to speak to each other. The intruders then conversed about wanting to watch two women engage in sex acts and ordered Holly G. and Heather M. to go to the bar area outside of Jason B.'s bedroom. They told the women to "suck that pussy." Holly G. and Heather M. complied; Holly G. performed oral sex on Heather M., and then Heather M. performed oral sex on Holly G. The intruders also demanded that the two women use their fingers to penetrate each other's vaginas; again, the women complied. During these acts, both intruders watched and made further demands, telling the women again to "suck that pussy" and "do it deeper." When Heather M. was performing oral sex on Holly G., one of the intruders hit Holly G.'s knee so that he could get a better view of what was happening. Next, the intruders brought each of the three male victims out to the bar area one at a time and ordered each to have sexual intercourse with Holly G. Although one of the intruders had thrown a shirt or other piece of clothing over Holly G.'s face, she remained able to see her feet and distinguish between the three male victims during these acts. The first was Brad H.; the second, Jason B.; the third, Aaron S. At some point during these acts, Heather was moved from beside Holly G. to the closet. Neither Brad H. nor Jason B. was able to achieve an erection, but penetration of Holly G. nevertheless occurred. The intruders made comments about "popping" someone's "ass," if the absence of an erection prevented fulfillment of their demands. Aaron S. initially defied the intruders, saying, "[N]o, I don't want to do this." One of the intruders then became angry and hit Aaron S. in the back of the head with something 35 At one point during this trip, Holly G. asked the stockier intruder if he was going to shoot her and the other victims. He said no. She then asked him if he promised not to shoot them, and he said, "Yeah, I'm not going to shoot you." Also during the trip to the ATM, the stockier intruder asked Holly G. if the other intruder had had intercourse with her. When Holly G. said that he had, the stockier intruder wanted to know if she had enjoyed it. To appease him, Holly G. said yes. She had seen what she believed to be a gun in his lap. The stockier intruder also asked if she had ever had sex with a black person and if it was better with the taller, thinner intruder than with her boyfriend. When Holly G. and the stockier intruder were walking back into the house, he told her it was too bad they had not met under other circumstances because she was kind of cute and they could have dated. She replied, "[K]ind of, yeah." He then asked, "[W]hat does that mean?" Holly G. responded that she wasn't really having a good time. When Holly G. returned to the closet, she told Aaron S., Brad H., and Jason B.: "I think we're all going to be okay. I asked him, he said he's not going to shoot us." Aaron S. was the next to leave the home with the stockier intruder. Holly G. thought Aaron S. put on pants and a shirt before they left. While Aaron S. was gone, the taller, thinner intruder opened the closet door and offered the remaining victims a glass of whiskey, which they refused. Holly G. then heard someone handling a popcorn tin and a change jar. She heard the taller, thinner intruder ask Heather M., who was outside of the closet at the time: "[W]hose is this?" Heather M. said she did not know, but it was probably Holly G.'s. He then asked which of 36 the male victims was Holly G.'s boyfriend, and Heather M. said Jason B. The taller, thinner intruder then opened the closet door and asked for Jason B. When Jason B. identified himself, the intruder asked him if the item that had been found was the only one of its kind. Jason B. said yes. The item was an engagement ring Jason B. had purchased for but not yet given to Holly G. When Aaron S. returned, the stockier intruder told Holly G. to leave the closet and pushed her into the dining room by jabbing her in the back with something she assumed was a gun. He said, "Don’t worry[.] I'm not going to shoot you yet." The stockier intruder then made Holly G. get down onto all fours and vaginally raped her from behind. He then grabbed her, turned her around, ejaculated into her mouth, and ordered her to swallow. Holly G. was able to see the stockier intruder's face at this point. Holly G. went to the bathroom, but, when she opened the bathroom door, she saw the taller, thinner intruder raping Heather M. from behind. Heather M. was on all fours, and the taller intruder was on his knees. The bathroom light was on, and the second intruder was only 2 feet to 3 feet in front of Holly G.; so she was able to see his face. The taller intruder shut the door, telling Holly G. he was not finished yet. Holly G. waited outside the bathroom door for a few minutes and then opened it again. The taller intruder then directed Holly G. to get down on all fours. She complied and he again vaginally raped her from behind. After he stopped, Holly G. heard what sounded like a condom being removed, and then the toilet was flushed. Holly G. was then directed back to the bar area, where Heather M. was already sitting. The three male victims remained in the closet in Jason B.'s bedroom. The women were cold and Holly G. put on a sweater. The two intruders were talking to each other, and then the stockier one went downstairs. When he came back upstairs, Holly G. heard 37 him say something about a big screen television. Brad H. had a big screen television in his downstairs bedroom. Holly G. also was able to get a better look at the stockier intruder at that time. She saw his face and noted that his hair was close to his head and not sticking out like the thinner intruder's hair. At some point, the intruders used cleaning solution to wipe various surfaces and things in the house. When they had finished this task, all five victims were taken to the garage. Holly G. and Heather M. were wearing nothing but sweaters. Aaron S. was still wearing pants and a shirt. Brad H. and Jason B. were naked. Holly G. and Heather M. were directed to get into the trunk of a beige Honda Civic belonging to Aaron S. The intruders then tried to get all three of the men into the trunk, but they could not fit. Holly G. and Heather M. were then put into the back seat of the Honda, and the men were put into the trunk. Holly G. was then directed to get into the passenger side of Jason B.'s truck. After some discussion between the intruders, as the stockier intruder was taking Holly G. to the truck, the taller, thinner intruder said, "If she gives you any trouble . . . let me know and we'll take care of that." The taller, thinner intruder drove away from the Birchwood home first in the Civic, followed by the stockier intruder driving the truck. As she rode with the stockier intruder, Holly G. asked him where they were going. He said they were going somewhere to drop the five victims off—away from their cars and the home. Again, Holly G. was able to see the stockier intruder's face; at this point, he was making no effort to keep her from looking at him. Holly G. noted that the clock in the truck showed it was 2:07 a.m. 40 wearing an orange and black sweater and black "jean-type" pants. The other had a heavier build, was also about 6 feet tall, and was wearing a black leather coat. While Holly G. was being treated in a local hospital emergency room, officers obtained additional information from her. She said the intruder with the orange and black sweater was in his early 20s; was about 6 feet tall and weighed 175 pounds; had a bushy afro that stuck out about 2 inches; and was wearing black leather gloves and blue jeans. The other intruder was in his early 20s; was about 6 feet tall and weighed 190 to 200 pounds; and was wearing a black leather coat, black leather gloves, blue jeans, and boots. She said both men were carrying small semi-automatic handguns. Holly G. had suffered a gunshot wound to the back of her head. The impact fractured her skull; but the bullet did not penetrate into her brain, apparently because it had been deflected by the plastic hair clip she was wearing. Holly G. also had other injuries, including bruises to her face and frostbite to her feet. While Holly G. was transported and treated at the hospital, law enforcement found Aaron S.'s Honda Civic and the bodies of the four other victims lying in a road at the snow-covered soccer field where they had been shot. Sheriff's Deputy Matthew Lynch was first on the scene. He detected no pulse in Heather M. Aaron S. appeared to be attempting to breathe, as did Brad H. Jason B. did not appear to be breathing and had no pulse. Lynch advised dispatch that there were four "code blue" victims, meaning each was at least in cardiac arrest. EMS arrived on the scene at 2:54 a.m. Officers collected spent cartridge casings, a bullet fragment, an ATM receipt reflecting a withdrawal on December 15 at 1:17 a.m., and pieces of Holly G.'s plastic hair clip at the soccer field. 41 Meanwhile, Wichita Police Officer Michael Dean was dispatched to the Birchwood home. He arrived at approximately 3 a.m. About that same time, Sergeant John Hoofer also was dispatched to the home. On his way there, Hoofer saw a Dodge Dakota pickup passing him in the opposite direction at about 127th Street. Because the vehicle matched a description that had been put out over the police radio, he turned around to pursue it. In the process, he lost track of it. Hoofer arrived at the Birchwood home at 3:19 a.m., and he and Dean went inside. The home appeared to have been ransacked. In the bedrooms, dresser drawers had been pulled out; clothes were strewn all over; and the beds had been stripped of their linens. In the living room, an entertainment center had an open space where a television would have been, and a coaxial cable had been pulled through the open space and was lying on the floor. Downstairs, there was a computer desk with no computer. In what law enforcement would later learn was Jason B.'s bedroom, there was a large pool of blood on the corner of the mattress and what appeared to be a bullet hole. On the floor below that part of the mattress was a dead dog. The two officers then went back outside and secured the home as a crime scene. A short while later, Dean was standing by his patrol vehicle when he saw an older white Plymouth come down 127th Street and drive by the Birchwood residence. He thought this was unusual, because it was 4 a.m. in a secluded residential area where there had been very little traffic, and the streets were snow-packed, making driving conditions hazardous. It was just a few minutes later when Dean saw the same vehicle coming down Birchwood. As the car drove past, Dean saw that the driver was a black male wearing a stocking cap. The driver stared straight ahead as the car passed, never acknowledging the officer or looking at what was now an obvious crime scene surrounded by police tape. Dean thought this was highly unusual and noted the car's Ford County license plate number. He watched as the vehicle turned onto 127th Street and headed back in the 42 direction from which it had come the first time he saw it. He notified Hoofer that he needed to stop the vehicle and identify the driver. At 4:13 a.m., Hoofer stopped the white Plymouth, a 1988 model, as it was driving away from the area of the Birchwood residence on 127th Street. He noticed a black leather coat on the back seat. The driver was R. Carr. He showed Hoofer a piece of paper identifying him and listing a Dodge City address. R. Carr told Hoofer he was driving to the apartment of his girlfriend, Stefanie Donley. From R. Carr's description, Hoofer recognized the apartment's location as the 5400 block of East 21st Street, the address of—the Windsor at Woodgate complex. At some point after R. Carr identified himself, the encounter with Hoofer ended; and R. Carr drove away. At about 4:30 a.m., R. Carr arrived at Donley's apartment. He stayed approximately 15 minutes and left again, returning about 45 minutes later. About the same time R. Carr returned to the apartment complex, Christian Taylor, another resident of Windsor at Woodgate, was watching the local news as he got ready for work. He saw a report on a quadruple homicide during the previous night and noted that police were looking for a gray or silver Dodge Dakota pickup truck. As Taylor left his apartment to go to his car about 6:25 a.m., he saw a Dodge Dakota pickup truck fitting the description parked on the other side of an empty spot next to his car. The truck was backed in so that its tailgate was facing a fence; the tailgate was down. A large TV was in the bed of the truck. He then saw a black man, later identified as R. Carr, appear from behind the truck. Taylor described the man as in his 20s or 30s, with a few days' growth of facial hair, wearing blue jeans and a black or brown leather jacket, and with a scarf or hood covering his head. 45 checkbook, a garment bag with an identification tag for Aaron S., computer equipment belonging to Aaron S., tools, electronic equipment, clothing and jewelry, and several travel bags. The officers also found a credit card belonging to Holly G. They also found Brad H.'s wallet and Schreiber's Guess watch in a bedroom, under letters addressed to R. Carr. Shorts and t-shirts belonging to R. Carr were recovered from a bathroom and a sofa in the apartment. The officer also found a stocking cap, dark leather gloves, and a dark leather coat. Inside the pocket of the leather coat were two Intrust Bank receipts from 12:06 that morning. The receipts showed balance inquiries made on checking and savings accounts belonging to Brad H. Inside the Dakota pickup truck, officers found an ATM card bearing Jason B.'s name and a wallet containing his driver's license. They also found two Commerce Bank ATM receipts showing withdrawals that morning. One receipt showed a withdrawal of $200 at 12:31 a.m. from Jason B.'s bank account, and the other showed withdrawals of $350 and $150 at 12:53 a.m. from Holly G.'s bank account. J. Carr's Movements and Arrest and Discovery of Evidence While police were following up on Holly G.'s appearance at the Johnsons' door, J. Carr had called his friend, Tronda Adams, at 3:31 a.m. and said he missed a 2:30 a.m. train he had intended to take to Cleveland, Ohio. Adams granted J. Carr permission to spend the night at the home she shared with her mother, and he arrived there at approximately 3:45 a.m. He had driven Donley's Toyota Camry and was still wearing a brown leather jacket, an orange and black FUBU sweater, black pants, and brown or black boots—the same clothes he had been wearing the previous evening when he said goodbye to Adams at 9:30 p.m. and left her home with his brother, R. Carr. 46 J. Carr asked Adams if she had a $20 bill for singles, and she observed that he had more than $500 in his pocket. Adams had never seen J. Carr with that amount of cash in the past. When she asked him where he had gotten the money, J. Carr said he had gone to the bank and withdrawn all of his funds before he was to leave town. Adams thought this was strange because J. Carr was unemployed and did not ordinarily reside in Wichita. Adams would eventually testify that her cell phone records showed that J. Carr made a call to Dodge City at 4:25 a.m. and a call to his sister at 4:26 a.m. She would also testify he woke her sometime between 4 a.m. and 5 a.m. to say that R. Carr was coming over to trade cars. Later that morning, Adams saw news reports about the quadruple homicide. The reports said the police were looking for two suspects, one wearing an orange FUBU shirt. Adams woke J. Carr to tell him what had happened and to see how he would react to the news report. When she asked him if he had heard about four people getting killed, he said no. When she told him that the gunmen had taken the victims to ATMs and forced them to withdraw cash, J. Carr asked how the police knew that fact. Adams told him that one of the victims had survived. Adams' mother, Toni Greene, was cleaning about 11 a.m. when she found a maroon jewelry box in one of the pockets of J. Carr's jacket. Inside the box was a diamond engagement ring. Thinking it must be intended for J. Carr's girlfriend in Ohio, she put the ring back where she found it. About noon, Adams was watching the local television news while her mother and J. Carr were in the room with her. Adams saw video coverage of R. Carr being arrested and told J. Carr to go downstairs with her right away. Once downstairs, Adams asked J. Carr if he had seen the video of his brother being arrested. He said he did. When she asked him what had happened, he told her he was just hanging around drinking after he 47 had missed his train, apparently at his sister's home. Adams told him that his story was not going to work: He had been wearing the orange FUBU sweater, and the police already had his brother. J. Carr became upset during this conversation and was crying. While Adams and J. Carr were downstairs, Greene had continued watching the news. Although she did not recognize R. Carr as the person being arrested in the video, she learned that one of the items taken from the Birchwood residence was an engagement ring. She also learned that the police were looking for an older white Plymouth, and she had noticed a white Plymouth parked outside the house earlier that morning. Greene checked outside to see if the Plymouth was still there. It was. She then called Adams upstairs and told her they needed to leave immediately. Greene told Adams that J. Carr was the person the police were trying to find. She specifically told Adams about the engagement ring she had seen in J. Carr's jacket pocket and the Plymouth that police were looking for parked outside. Adams and Greene went across the street to a neighbor's house, and Greene and the neighbor called the police. Looking back toward her house, Adams saw J. Carr come to its front door and make an inquiring gesture in her direction. He was again wearing the FUBU sweater. When the police arrived, J. Carr moved away from the door and went back inside. And, a short while later, Adams saw J. Carr running through an alley. He had again removed the FUBU sweater. After a foot chase, officers apprehended J. Carr. They found more than $1,000 in cash on his person. Inside Adams' home, police found the orange and black FUBU sweater; leather gloves; and J. Carr's brown leather jacket. The jacket pocket still contained the 50 Autopsies Heather M. died of a contact gunshot wound to her head. Her body showed bruising on her lower extremities. Injuries to her genital area were consistent with the application of force, and injuries to her knees were consistent with being placed on her hands and knees for the purpose of sexual intercourse. Aaron S. died of a contact gunshot wound to his head. He sustained blunt trauma injuries to his head and neck; and his legs showed bruises, red discoloration, and scrapes. Injuries on his forehead and head were consistent with being hit with a golf club and the gun associated with the murders. Jason B. died of an intermediate-range gunshot wound to his head. In addition, his body showed blunt trauma injuries. An injury to his buttocks was consistent with being hit with a golf club. Like Jason B., Brad H. died of an intermediate-range gunshot wound to his head. His face showed blunt trauma injuries. All of the gunshot wounds to the four Birchwood murder victims were consistent with their bodies being in a kneeling position with their heads down when the bullets entered their skulls. Holly G.'s dog sustained "severe injury and fracturing of the neck, almost to the point where the head had fallen down off of the support of the spinal cord and vertebrae." Testimony at trial established that the dog's injuries could have been caused by a golf club. The dog also sustained a puncture wound to its neck. 51 DNA and Other Biological Evidence Semen collected from the carpet in the dining room of the Birchwood home and a hair with attached root from Jason B.'s bedroom matched J. Carr's DNA. J. Carr's DNA also was found in samples from Holly G.'s rape examination. Semen collected from Holly G.'s labia majora matched J. Carr's DNA; and a sample of Holly G.'s vaginal discharge was consistent with DNA from her and J. Carr, while all others at the Birchwood home were excluded as contributors. J. Carr was determined to be the major contributor to a mixed DNA profile found in semen from a swab of Holly G.'s lips, and all others at the home were excluded as contributors except for Holly G. and J. Carr. A stain on J. Carr's boxer shorts matched Heather M.'s DNA. The results on a second stain on the boxer shorts excluded possible contributors other than Holly G., Heather M., and J. Carr. Heather M.'s DNA was found in blood on the pair of R. Carr's red undershorts left on the bathroom floor when he took a shower at Donley's apartment on the morning of December 15. Heather M.'s DNA was also detected on a white t-shirt on the sofa in Donley's apartment. A test of DNA on a gray t-shirt from the sofa excluded everyone at the Birchwood residence except for Heather M. In addition, R. Carr's semen was found on a white muscle shirt, which he also left on Donley's bathroom floor. Foreign material found on Holly G.'s thigh was tested and excluded everyone at the Birchwood residence except for her, R. Carr, and J. Carr. 52 An analysis of swabs from Heather M.'s vaginal entrance, clitoris, vagina, and vaginal vault was positive for the presence of seminal fluid. Blood also was detected on cervical swabs. DNA samples from the penises of Aaron S., Brad H., and Jason B. also were tested. The sample from Aaron S. included him and Heather M. In addition to Brad H. himself, Holly G. could not be excluded on his sample. Jason B.'s sample was consistent with him, Holly G., and Heather M. Testing was performed on three other hairs collected from the Birchwood residence. A Wichita Police Department chemist trained in hair examination originally separated the total of four hairs from other hairs and fibers collected from the Birchwood home. She testified that she performed the separation macroscopically and that she had labeled three of the hairs Negroid and a fourth as "possibly" so. On further testing, one of the hairs produced no result and may have been a non- human animal hair. Another did not match either R. or J. Carr, both of whom are African- American; that hair was more typical of a Caucasian or a person with European ancestry. Mitochondrial DNA testing on the third hair, which had been collected from the floor of Jason B.'s bedroom, showed that neither R. Carr nor J. Carr could be excluded as the contributor. Persons within the same maternal line will have the same mitochondrial DNA; thus the two brothers would be expected to have the same mitochondrial DNA profile. Blood on a golf club found at the Birchwood home was positively identified as nonprimate blood. 55 Gun Evidence Between December 10 and December 12, Adams saw J. Carr with two guns: a small, silver revolver and a black handgun. On December 10, she was having problems with her boyfriend, and J. Carr gave her the small, silver gun to use for her protection. At 11:15 p.m. on December 11, J. Carr showed up at Adams' home after being dropped off by R. Carr. J. Carr asked Adams to give the small, silver gun back to him. In return, he gave her the black handgun, a semiautomatic. The next evening, J. Carr told Adams that he needed the black gun back, and she gave it to him. He asked how she had been touching it and scolded her for doing so too much. J. Carr then thoroughly cleaned the gun. He wiped down the barrel and the grip and then he ejected the clip and removed the bullets and wiped down the clip and each bullet. About 3 months after the quadruple homicide, on March 19, 2001, a Winfield Correctional Facility inmate on clean-up detail found a Lorcin .380 caliber handgun at the intersection of Kansas Highway 96 and Greenwich Road in Wichita. Ballistics testing demonstrated that all of the bullets, casings, and fragments associated with the Schreiber, Walenta, and Birchwood incidents came from the Lorcin .380 handgun. This included a casing found at the scene where Schreiber was left by his abductors, bullets and casings from Walenta's Yukon, a bullet from Walenta's chest, casings and a bullet fragment found at 29th and Greenwich Road, and a bullet from the body of Aaron S. Adams identified the Lorcin as the black handgun that J. Carr had given her the evening of December 11 and that she had returned to him on December 12. 56 Shoeprints and Cigar Ash A print from J. Carr's left Timberland shoe had the same size, shape, and sole design as a shoeprint found on a cardboard sunshade in the garage at 12727 Birchwood. A print from the left shoe of R. Carr's pair of Buffalino boots had the same characteristics as a lift taken from a box under Jason B.'s bed. A print from R. Carr's right Buffalino boot had the same class characteristics as a lift taken from a tarp under Jason B.'s bed. Investigators found ashes on a desk in the basement that were wider in diameter than those from a normal cigarette. There were no ashtrays, cigarettes, or any other kind of smoking material in the residence. Investigators collected the ashes because they found the presence of the ashes to be "unusual." A partially smoked cigar was recovered from R. Carr's leather coat and another from the dashboard of his white Plymouth. Birchwood Neighbor After work on December 14, the night the Birchwood incident began, Jean Beck went to The Grape, a restaurant at Central and Rock Road in Wichita. The restaurant was a short distance from Walenta's home. Beck left at approximately 10:45 p.m. in her 2000 BMW 323. As she was driving to her home at 12725 Birchwood, the triplex unit next door to 12727 Birchwood, she noticed a newer, tan Toyota four-door car behind her. As Beck turned off 13th Street into her residential area, the driver of the Toyota turned in behind her. Beck called her daughter and asked her to open the garage door at 12725 Birchwood; and, for safety, Beck stayed inside her car until the Toyota had passed her home. After the Toyota went by, it headed back toward 13th Street. 57 Defense Evidence R. Carr put on a competing ballistics expert, who testified that his test firings from the Lorcin .380 were inconclusive in terms of a match to bullets and casings recovered from the crime scenes and bodies of the victims. However, the expert, Richard Ernest, admitted that he did not clean the gun before conducting the test firings and that the gun had significantly degraded by that time. He conceded that his conclusion could have been different if he had fired the Lorcin in the same condition as it was when the State's expert fired it. J. Carr introduced an exhibit confirming his purchase of an Amtrak passenger train ticket from Newton to Cleveland, to depart at 2:40 a.m. on December 15, 2000. Additional facts necessary to resolution of particular legal issues will be discussed below. Renumbering of Counts in Jury Instructions and Capital Murder Theories In its instructions to the jury and in the verdict forms, the alternative capital murder counts set forth in Counts 1 through 8 of the amended complaint were combined into Counts 1 through 4 of capital murder—one for each of the four Birchwood killings— based on alternate theories of guilt under K.S.A. 2l-3439(a)(4) (underlying sex crime) or K.S.A. 21-3439(a)(6) (multiple first-degree premeditated murders). At an instructions conference, the State had asserted that it did not matter if the jury was not unanimous on the theory as long as it was unanimous on guilt. A similar combining and renumbering occurred for the alternative counts of aggravated robbery set out in Counts 15 through 22 of the amended complaint. The remaining counts in the amended complaint were renumbered accordingly in the instructions and verdict forms. Accordingly, the 58 60 7. Was the evidence of attempted aggravated robbery of Walenta sufficient to support R. Carr's felony murder conviction? A majority of four of the court's members answers this question yes. Three members of the court dissent, and one of them writes separately for the three on this issue and its reversibility, standing alone. 8. Did the district judge err by failing to instruct the jury on second-degree murder as a lesser included offense of felony murder of Walenta? The court unanimously answers this question no. Issues Specific to Quadruple Homicide and Other Birchwood Crimes 9. Did faulty jury instructions on all four K.S.A. 21-3439(a)(4) sex-crime-based capital murders and a multiplicity problem on three of four K.S.A. 21-3439(a)(6) multiple-death capital murders combine to require reversal of three of R. Carr's death- eligible convictions? The court unanimously answers this question yes. 10. Was a special unanimity instruction required for Counts 1, 3, 5, and 7 because of proof of multiple sex crimes underlying each count? The court declines to reach the merits of this issue because it is moot. 11. Must sex crime convictions underlying capital murder Counts 1, 3, 5, and 7 be reversed because they were lesser included offenses of capital murder under K.S.A. 21- 3439(a)(4)? The court declines to reach the merits of this issue because it is moot. 12. Was the State's evidence of aggravated burglary sufficient? The court unanimously answers this question yes. 61 13. Did the State fail to correctly charge and the district judge fail to correctly instruct on coerced victim-on-victim rape and attempted rape, as those crimes are defined by Kansas statutes, rendering R. Carr's convictions on those offenses void for lack of subject matter jurisdiction? The court unanimously answers this question yes. 14. Was the State's evidence of R. Carr's guilt as an aider and abettor on Count 41 for Holly G.'s digital self-penetration sufficient? A majority of four of the court's members answers this question yes. Three members of the court dissent and one of them writes separately for them on this issue and its reversibility. 15. Were Count 41 and Count 42 multiplicitous? The court unanimously answers this question yes. The court unanimously agrees that this error requires reversal of R. Carr's conviction as an aider and abettor on Count 42. 16. Was the evidence of R. Carr's aiding and abetting of J. Carr's rape of Holly G. and attempted rape and rape of Heather M. sufficient? The court unanimously answers this question yes. 17. Did Count 43 of the charging document confer subject matter jurisdiction to prosecute R. Carr for attempted rape of Heather M.? The court unanimously answers this question yes. 18. Did the district judge misapply the third-party evidence rule and hearsay exceptions, preventing R. Carr from presenting his defense? The court unanimously answers this question yes. The court unanimously agrees that any error on this issue was not reversible standing alone. 62 19. Was evidence of results from mitochondrial DNA testing of hairs found at the Birchwood home erroneously admitted? The court unanimously answers this question no. 20. Did the district judge err by denying R. Carr's motion for mistrial after evidence developed at trial that R. Carr had genital warts and that the surviving victim, Holly G., contracted HPV after the second intruder she identified as R. Carr raped her? The court unanimously answers this question no. 21. Did the district judge err by failing to instruct on felony murder as a lesser included crime of capital murder? The court unanimously answers this question no. Other Evidentiary Issues 22. Did the district judge err by automatically excluding eyewitness identification expert testimony proffered by the defense? The court unanimously answers this question yes. The court unanimously agrees that any error on this issue was not reversible standing alone. 23. Did the district judge err by permitting a jury view of locations referenced in evidence, in violation of the defendants' right to be present, right to assistance of counsel, and right to a public trial? The court unanimously answers this question no. Other Instructional Issues 24. Did the district judge err by failing to include language in the instruction on reliability of eyewitness identifications to ensure that jurors considered possible infirmities in cross-racial identifications? The court unanimously answers this question no. 65 were guilty. Approximately half of these respondents said the defendants were "definitely guilty," and the other half said they were "probably guilty." In contrast, 22 percent of the Wyandotte County respondents believed the defendants were "definitely" or "probably" guilty, according to Dahl. Addressing their understanding of the quality of the evidence, 72.3 percent of the Sedgwick County respondents believed it to be "overwhelming" or "strong." Only 16 percent of the Wyandotte County respondents believed likewise. Personal discussions about this case correlated with more widespread beliefs on the defendants' guilt. Of the 59.1 percent of respondents in Sedgwick County who had engaged in such personal discussions, 86 percent believed that the defendants were "definitely" or "probably" guilty. And, of the 56.4 percent of respondents who had merely overheard such discussions, 82 percent believed the defendants were "definitely" or "probably" guilty. Dahl also compiled extensive examples of news media coverage of this case, which included both print and online newspaper articles; internet coverage from websites other than those whose content was generated by newspapers; radio coverage, including audio, transcripts and notes from broadcasts, and printouts of stories on their websites; and television footage. Much of the coverage was, not surprisingly, unfavorable to the defendants. The existence of unfavorable media coverage had been demonstrated in a hearing nearly a year before on the defendants' motion to close proceedings to the media and the Wichita Eagle newspaper's and KWCH-TV's motion to intervene. Thomas David Beisecker, a professor of communication studies at the University of Kansas and president of Advocacy Research Associates, had testified about the content of media coverage in the first few months after the crimes. In addition to describing facts of the crimes and the legal proceedings, Beisecker said, the coverage included discussion of the 66 good character of the victims, R. Carr's parole status and criminal history, and the community's fear and insecurity stemming from the crimes. Coverage of the crimes in this case was especially intense immediately after the Birchwood crimes and the defendants' arrests. Within 2 days of the crimes the Wichita Eagle had published a story about R. Carr's recent release from jail after his parole violation and detailing his criminal history. The funerals of Heather M., Aaron S., Brad H., and Jason B. were covered extensively. Press coverage and public response to it also focused on fear among Wichita citizens as a result of the string of crimes attributed to the defendants. Press coverage spiked again when Walenta died on January 2, 2001, and when the amended complaint was filed against the defendants 2 days later. In the months following, various pretrial proceedings such as the April 2001 preliminary hearing and the discovery of the gun used in the crimes prompted additional stories. The 1-year anniversary of the quadruple homicide also prompted media stories. Measurement of intensity of community opinion was another feature of Dahl's surveys. She testified that the surveys were done more than a year after the crimes and that, if the opinions of members of the public were going to dissipate, they would have done so by the time the telephone calls were placed. Because they had not, she expected that there would be little movement in the opinions evident from the survey results between the time of the survey and the start of the defendants' trial a few months later. Dahl admitted that her surveys did not explore the question of impartiality and that she was not aware of any studies in her field conclusively establishing that participants in such surveys who voiced opinions on guilt could not ultimately serve as impartial jurors. 67 After the evidentiary hearing on the motion to change venue, Judge Clark said that he would hear closing arguments from counsel after he had had an opportunity to review the exhibits. Closing arguments were held on June 13, 2002. Immediately upon the completion of the arguments, Judge Clark spoke. He first found that Dahl was qualified to render an expert opinion and that the venue study was scientifically valid. He then ruled: "The argument then comes to the emotionally biasing publicity. The purpose in selecting a jury is not to find a jury free of knowledge. It is to find a jury free of bias and prejudice. The study shows and the evidence shows and experience shows that in this particular case, having reviewed the material furnished, the law[,] and the argument of counsel, that the venue in which the defendants will be assured of the greatest number of venire persons free of bias or prejudice from whom a jury may be selected to decide the case solely on the facts in evidence, viewed by the light of the instruments of law, is Sedgwick County, Kansas. The motion is overruled for both defendants." In late July 2002, a political committee ran an advertisement on local Wichita television stations supporting the candidacy of Phill Kline for Kansas Attorney General. The advertisement identified R. Carr and labeled him a murderer. Although the advertisement had run in at least one other Kansas media market, it did not identify R. Carr by name in that market. The ads and reaction to them generated days of coverage on local television news in Wichita and in the Wichita Eagle. Among others quoted was Sedgwick County District Attorney Nola Foulston, the lead prosecutor on the case. She said that "placing this ad in front of a constituency of individuals in our community that are the same people that are going to form a jury pool could have a devastating effect." 70 asked whether he could keep an open mind. In his responses to the questionnaire, D.G. said without equivocation that he could set his opinion aside. During individual voir dire, one of the prosecutors asked him if he understood that it would be improper for a juror to consider outside information when deciding the case, and D.G. responded, "Hopefully, I can separate the two and just try to hear the facts and evidence presented." The prosecutor suggested that D.G.'s use of the word "hopefully" might cause some to question the strength of his conviction and then asked D.G. a series of follow-up questions. D.G. said he agreed that the defendants were entitled to an impartial jury; acknowledged he would have to base his decision on the evidence, even if it conflicted with information from pretrial publicity; and said he would have no problem doing so. Several of D.G.'s statements were made in response to leading questions, such as this from the prosecution: "And you would agree with me that the defendants . . . are entitled to a jury that could decide their case based upon what is presented here in court?" In response to questioning from R. Carr's counsel, D.G. confirmed his ability to consider only admitted evidence. But, later in the questioning, he occasionally said he would "hope" and "try" to set aside what he had learned from pretrial publicity. The defense had also unsuccessfully challenged D.M. for cause. D.M. was exposed to television and newspaper coverage. Based on the coverage, D.M. said that he "suppose[d]" he had an opinion that would "lean toward guilt." He said that he understood it would be improper to rely on information from outside the courtroom in making a decision. Then the prosecution asked: "And so you wouldn't do that, would you?" And D.M. said that he "hopefully [would] not" do so. Again, the prosecutor explained that "hopefully" might not be good enough and that justice required a definitive answer. At that point, D.M. said, "Ah, yes. I believe I could put it aside, yes—what I've heard." D.M. agreed that media coverage could be incomplete or inaccurate and that it would be unfair to find a defendant guilty on such information. In response to questions 71 from defendants' counsel, D.M. again confirmed his ability to set aside his previous opinion. The defense had passed T.N. for cause. T.N said she believed R. Carr and J. Carr were guilty based on coverage in the newspaper. She expressed confidence she could set that opinion aside and said she would not convict someone based on information she read in the press. She said she understood that the media may not be privy to all of the facts and that it would be unfair to base her decision on such information. Some of T.N.'s statements responded to leading questions, such as this from the prosecution, "So you will not convict somebody based on what you may have read in the newspaper?" In response to questions from defense counsel, T.N. again confirmed that she could set aside her opinion and the information she acquired from pretrial publicity. The defense had unsuccessfully challenged J.S. for cause. J.S. was exposed to pretrial publicity about the time the defendants were arrested. When asked whether he had formed an opinion of guilt based on the coverage, J.S. said, "Well, yeah, not really based on anything, just, you know, kind of the idea that . . . somebody gets arrested . . . there is bound to be evidence against them." J.S. said that he understood not all persons arrested are guilty—an awareness that would make it easier for him to set his opinion aside. J.S. said that he would make a decision based solely on the evidence. After voir dire was completed, the defendants orally renewed their motion for change of venue once more, arguing that the process of jury selection demonstrated that pretrial publicity had tainted the pool. Judge Clark overruled the motion, saying that jury selection confirmed "the contrary." The trial was televised, but Judge Clark restricted media access to evidence, made sure that microphones would not pick up the defendants' confidential discussions with 72 counsel, and allowed witnesses to decide whether their voices or images could be published or broadcast. The judge reserved six seats inside the courtroom for members of the press. He admonished jurors not to pay attention to any of the publicity surrounding the case during jury selection and again at trial. The record does not suggest that the media created any disruption or otherwise interfered with the judge's conduct of the proceedings. Items identified during testimony as belonging to the victims included Aaron S.'s Koch Industries business card; a ring that Heather M., a teacher, had bought while on a choir tour in Europe; Heather M.'s Catholic Family Credit Union debit card; and Brad H.'s Koch identification card. In describing the state of Aaron S.'s ransacked bedroom, an investigator testified that she had seen an envelope containing cash and checks "that were meant for a ski trip that he was planning for the youth organization in church." Next to a toppled clock were some prayer books and religious material. The jury knew that R. Carr was charged with three counts of criminal possession of a firearm for possessing a gun within 10 years after being convicted of a felony. Donley testified that he was unemployed and made money fighting his dog. In addition, R. Carr's attorney elicited testimony from Donley that R. Carr sold illegal drugs. General Legal Framework and Standards of Review The defendants argue that Judge Clark's refusal to grant a change of venue violated their right to an impartial jury under the Sixth and Fourteenth Amendments of the United States Constitution and under Section 10 of the Kansas Constitution Bill of Rights. They also argue that the judge abused his discretion under the Kansas statute governing change of venue, K.S.A. 22-2616(1). 75 hand and state constitutional and statutory provisions prescribing the ordinary venue for criminal trials, see, e.g., Kan. Const. Bill of Rights, § 10 (granting right to speedy public trial by impartial jury of county, district where offense allegedly committed), on the other hand. The federal Constitution is supreme. The defendants invoke both presumed prejudice and actual prejudice in this case. They agree with the State that our traditional standard of review on denial of a motion to change venue has been abuse of discretion. See State v. Higgenbotham, 271 Kan. 582, 591, 23 P.3d 874 (2001) (citing State v. Cravatt, 267 Kan. 314, 336, 979 P.2d 679 [1999]). But they also urge us to consider whether an unlimited standard of review may be appropriate under Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966) ("trial courts must take strong measures to ensure" that defendants tried by impartial jury free from outside influences; appellate courts "have the duty to make an independent evaluation of the circumstances"), and our statutory duty to determine whether a sentence of death "was imposed under the influence of passion, prejudice or other arbitrary factor," K.S.A. 2013 Supp. 21-6619(c)(1). Because we have not previously been precise about how analysis of presumed prejudice differs from analysis of actual prejudice, about how the two theories are supported by and applied under the federal and state constitutions and in concert with our state venue change statute, or about how our standard of review on appeal may be affected, we begin our discussion of the defendants' venue challenge by tearing apart and then reassembling these concepts. We follow many of our sister state courts into this particular breach. See Crowe v. State, 435 So. 2d 1371, 1376 (Ala. Crim. App. 1983) (pretrial publicity warrants venue change when defendant can show presumed, actual prejudice); State v. Atwood, 171 Ariz. 576, 631, 832 P.2d 593 (1992) (prejudice from publicity may be presumed in rare 76 instances); People v. Loscutoff, 661 P.2d 274, 276 (Colo. 1983) (identifying actual, presumed prejudice as alternative theories warranting venue change); State v. Sostre, 48 Conn. Supp. 82, 85, 830 A.2d 1212 (Super. Ct. 2002) (same); Sykes v. State, 953 A.2d 261, 272 (Del. 2008) (relief under venue statute may be satisfied under either presumed, actual prejudice theory); Noe v. State, 586 So. 2d 371, 379 (Fla. Dist. App. 1991) (recognizing presumed, inherent prejudice as basis for venue change); Isaacs v. State, 259 Ga. 717, 726, 386 S.E.2d 316 (1989) (analyzing presumed prejudice as basis for venue change); State v. Fee, 124 Idaho 170, 175, 857 P.2d 649 (Ct. App. 1993) (recognizing separate theories of presumed, actual prejudice available to demonstrate grounds for requested venue change); State v. Gavin, 360 N.W.2d 817, 819 (Iowa 1985) (same); Watkins v. Commonwealth, 2008-SC-000798-MR, 2011 WL 1641764, at *13 (Ky. 2011) (unpublished opinion) (same), cert. denied 132 S. Ct. 1580 (2012) (showing of actual prejudice unnecessary when prejudice can be presumed); State v. Goodson, 412 So. 2d 1077, 1080 (La. 1982) (reviewing statutory venue challenge under federal standards established for actual, presumed prejudice); State v. Chesnel, 1999 Me. 120, 734 A.2d 1131, 1134 (1999) (recognizing actual, presumed prejudice as separate theories); Commonwealth v. Toolan, 460 Mass. 452, 462, 951 N.E.2d 903 (2011) (same); State v. Everett, 472 N.W.2d 864, 866 (Minn. 1991) (analyzing evidence for presumed, actual prejudice); State v. Kingman, 362 Mont. 330, 344, 264 P.3d 1104 (2011) ("As the basis of a motion for change of venue, the defendant may allege presumed prejudice, actual prejudice, or both."); State v. Smart, 136 N.H. 639, 647, 622 A.2d 1197 (1993) (same); State v. Biegenwald, 106 N.J. 13, 33, 524 A.2d 130 (1987) (applying different standards to claims of presumed, actual prejudice); State v. House, 127 N.M. 151, 166, 978 P.2d 967 (Ct. App. 1999) (recognizing distinction between actual, presumed prejudice); State v. Knight, 81AP-257, 1981 WL 11437 (Ohio App. 1981) (unpublished opinion) (describing evidentiary standard for presumed prejudice claims); State v. Fanus, 336 Or. 63, 78, 79 P.3d 847 (2003) (citing United States Supreme Court authority for presumed, actual prejudice); Commonwealth v. Briggs, 608 Pa. 430, 468, 12 A.3d 291 77 (2011), cert. denied 132 S. Ct. 267, 181 L. Ed. 2d 157 (2011) (acknowledging doctrine of presumed prejudice as alternative to actual prejudice); Crawford v. State, 685 S.W.2d 343, 350 (Tex. App. 1984), aff'd and remanded 696 S.W.2d 903 (Tex. Crim. 1985) ("Pretrial publicity will entitle a defendant to a venue change if he can show either (1) news media coverage so damaging that it must be presumed no unbiased jury could be selected, or (2) from the totality of circumstances, actual prejudice."); McBride v. State, 477 A.2d 174, 185 (Del. 1984) (same); State v. Snook, 18 Wash. App. 339, 349, 567 P.2d 687 (1977) (actual prejudice need not be shown where inherent, presumed prejudice exists); Sanchez v. State, 142 P.3d 1134, 1139 (Wyo. 2006) (recognizing presumed prejudice rarely invoked, applicable only in extreme circumstances). Presumed Prejudice The presumed prejudice doctrine originated in Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963). In Rideau, law enforcement filmed the confession of defendant Wilbert Rideau to a bank robbery, kidnapping, and murder in Calcasieu Parish, a community of approximately 150,000. Local television stations broadcast the confession, reaching approximately 24,000 people in the community the first day, 53,000 the following day, and 29,000 the day after that. Rideau was convicted at a jury trial and sentenced to death. His jury included three persons who had seen the confession on television and two deputy sheriffs from Calcasieu Parish. 373 U.S. at 723-25. The Court presumed the existence of prejudice necessitating reversal of Rideau's convictions without considering what was said by panel members during voir dire. 80 of time that elapsed between the crime and the trial; (5) the jury's verdict; (6) the impact of the crime on the community; and (7) the effect, if any, of a codefendant's publicized decision to plead guilty. See Skilling v. United States, 561 U.S. 358, 381-85, 130 S. Ct. 2896, 177 L. Ed. 2d 619 (2010); United States v. Mitchell, 752 F. Supp. 2d 1216, 1220 (D. Utah 2010) (recognizing, applying Skilling factors). The federal appellate courts have been split on the appropriate standard of review for presumed prejudice claims. The Tenth and Fifth Circuits apply de novo review, based on the directive from Sheppard relied upon by defendants here: appellate courts must conduct an "independent evaluation" of the circumstances. See McVeigh, 153 F.3d at 1179; United States v. Skilling, 554 F.3d 529, 557-58 (5th Cir. 2009), aff'd in part, vacated in part, and remanded by 130 S. Ct. 2896, 177 L. Ed. 2d 619 (2010). But a majority of the federal circuits, all but one in an opinion filed before Skilling was decided by the United States Supreme Court, have reviewed presumed prejudice claims for abuse of discretion. See United States v. Misla-Aldarondo, 478 F.3d 52, 58-59 (1st Cir. 2007); United States v. Sabhnani, 599 F.3d 215, 232-34 (2d Cir. 2010); United States v. Inigo, 925 F.2d 641, 654-55 (3d Cir. 1991); United States v. Higgs, 353 F.3d 281, 307-09 (4th Cir. 2003); United States v. Jamieson, 427 F.3d 394, 412-13 (6th Cir. 2005); United States v. Nettles, 476 F.3d 508, 513-15 (7th Cir. 2007); United States v. Rodriguez, 581 F.3d 775, 784-86 (8th Cir. 2009); United States v. Collins, 109 F.3d 1413, 1416 (9th Cir. 1997); United States v. Langford, 647 F.3d 1309, 1319, 1332-34 (11th Cir. 2011). The Montana Supreme Court recently addressed the standard of review question in State v. Kingman, and it elected to follow the abuse-of-discretion majority. 362 Mont. 81 330, 347, 264 P.3d 1104 (2011). The court acknowledged the position of the Tenth and Fifth Circuits, but it held that they failed to offer a "satisfactory explanation for why a trial court is accorded greater deference in evaluating actual prejudice than it is accorded in evaluating presumed prejudice." 362 Mont. at 346. It reasoned that an abuse of discretion standard is more appropriate than de novo review because the "trial judge is uniquely positioned to assess whether a change of venue is called for due to prejudice in the community." 362 Mont. at 347. We disagree with the Montana Supreme Court and the apparent majority among the federal appellate courts; we do see room for difference in the standard of review applied to presumed prejudice and actual prejudice claims, because presumed prejudice does not consider voir dire conducted in the presence of the trial judge. But we also disagree with the Tenth and Fifth Circuits. In our view, a mixed standard of review must apply to a presumed prejudice challenge on appeal. The factors enumerated by the United States Supreme Court in Skilling require fact findings, whether explicit or necessarily implied, that we must review for support by substantial competent evidence in the record. If such evidence exists, we defer on the fact finding. However, overall weighing of the factors calls for a conclusion of law, and we must review the conclusion of law under a de novo standard. We hasten to note that this pattern of review is far from revolutionary. Such a mixed standard is commonplace. It governs our evaluation of the voluntariness of a criminal defendant's confession and the existence of probable cause or reasonable suspicion, for example. Moreover, it is a close analytical relative of the way in which our examination of district court judge decisions for abuse of discretion has evolved: 82 "Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based." State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594, 182 L. Ed. 2d 205 (2012) (citing State v. Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1 [2010]). In other words, even our deferential abuse of discretion standard presupposes unlimited review of any legal conclusion upon which a discretionary ruling is based. See Gonzalez, 290 Kan. 747, Syl. ¶ 3; see also State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 (2007) (discretionary decision must be within trial court's discretion, take into account applicable legal standards); State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005) (application of abuse of discretion standard of review does not make mistake of law beyond appellate correction). We now turn to examination of the Skilling presumed prejudice factors in this specific case, as of the three points in time when Judge Clark rejected a defense motion for change of venue. First Motion for Change of Venue Judge Clark's rulings on the three motions for change of venue were nothing if not pithy. He did not expressly mention the possibility of presumed prejudice rather than actual prejudice, and he made no discrete factual findings in support of any decision on presumed prejudice. 85 of facts gathered from public records, pretrial hearings); United States v. Flores-Elias, 650 F.2d 1149, 1150 (9th Cir. 1981) (fact-based publicity focusing largely on victims, their unfortunate plight did not establish prejudice against defendant so great that fair, impartial trial not possible). Finally, as we have observed many times when considering a defendant's challenge to the admission of gruesome photographs of a crime scene or an ensuing autopsy of a victim into evidence, gruesome crimes give rise to gruesome photographs. See, e.g., State v. Green, 274 Kan. 145, 148, 48 P.3d 1276 (2002) ("Gruesome crimes result in gruesome photographs."). Likewise, a quadruple execution-style homicide and an attempted first-degree premeditated murder preceded by hours of coerced sex acts and robberies naturally gives rise to press coverage that some may fairly characterize as at least occasionally sensational. It can hardly help but be so. See State v. Ruebke, 240 Kan. at 500-01 (court unwilling to adopt pretrial publicity rule that individual can commit crime so heinous "that news coverage generated by that act will not allow the perpetrator to be brought to trial"). Yet, overall, we conclude that the primarily factual tone of the press coverage reviewed by Judge Clark at the time of the defendants' first motion compensated for its sheer magnitude, and the second Skilling factor did not weigh in favor of presumed prejudice. The third Skilling factor, the size and characteristics of the community in which the crimes occurred, did not weigh in favor of granting the defendants' first motion for change of venue on the ground of presumed prejudice. Laying claim to 452,000 residents and the largest city in Kansas, Sedgwick County had the largest population in the state from which to draw potential jurors. Compare Skilling, 561 U.S. at 382 (large Houston population, with 4.5 million potential jurors, minimized potential for presumed prejudice) and Mu'Min v. Virginia, 500 U.S. 415, 429, 111 S. Ct. 1899, 114 L. Ed. 2d 493 (1991) (potential for prejudice mitigated by size of metropolitan Washington, D.C., statistical 86 area; population of more than 3 million among whom hundreds of murders committed each year), with Rideau, 373 U.S. at 724-25 (recognizing greater potential for prejudice in parish with 150,000 residents, where confession broadcast to audience of nearly 100,000 over 3-day period). The United States Supreme Court and at least one federal district court and one state supreme court have noted population sizes similar to Sedgwick County on the way to concluding that the risk of prejudice was diminished. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1044, 111 S. Ct. 2720, 115 L. Ed. 2d 888 (1991) (reduced likelihood of prejudice when venire drawn from pool of more than 600,000); United States v. Diehl-Armstrong, 739 F. Supp. 2d 786, 793-94, 807 (W.D. Pa. 2010) (no presumed prejudice, in part because jury drawn from community with total population of 545,615); State v. Gribble, 165 N.H. 1, 19-20, 66 A.3d 1194 (2013) (potential for prejudice mitigated by jury pool of more than 400,000 residents). The fourth Skilling factor is the time that elapsed between the crime and the trial. At the time the first motion to change venue was ruled upon, 17 months had passed since the crimes were committed. Approximately 3 and 1/2 months remained before voir dire would begin. In the ordinary case, one might expect these time frames to mean that public interest in the crimes and the defendants had begun to wane and that it would continue to do so. See United States v. Lehder-Rivas, 955 F.2d 1510, 1524 (11th Cir. 1992) ("The substantial lapse of time between the peak publicity and the trial also weighs against a finding of prejudice.") (citing Nebraska Press Ass'n, 427 U.S. at 554); State v. Sanger, 108 Idaho 910, 913, 702 P.2d 1370, 1373 (Ct. App. 1985) (lapse of 17 months substantially minimizes prejudice). But Dahl testified about the staying power of the relevant press coverage and the extreme public opinions it fostered. Although she expected her surveys to demonstrate marked dissipation by spring 2002, she found less than expected. We consider this factor inconclusive on presumed prejudice at the time Judge Clark ruled on the defendants' first motion for change of venue. 87 The jury's verdict is the fifth Skilling factor. It was unknown at the time that Judge Clark ruled on the defendants' first motion for change of venue. The sixth Skilling factor is the impact of the crimes on the community. The defendants' evidence in support of their first motion included strongly hostile statements by members of the public in response to press coverage of the crimes and the prosecution, typically appearing in reader comments sections or on websites, at least some of which appear to have been sponsored by extreme and/or racist groups. It is difficult to extrapolate from these individual comments to the impact on the public as a whole. See Gribble, 66 A.3d at 1208 (defendant's reliance on articles quoting residents who expressed anger, bewilderment, heartbreak over crimes "fails to demonstrate. . . how the sentiment expressed by a small number of residents in a county with over 400,000 residents is indicative of presumed prejudice in the potential jury pool"). And the Supreme Court has observed that venue changes have been granted in highly charged cases like "the prosecution arising from the bombing of the Alfred P. Murrah Federal Office Building in Oklahoma City," while courts have properly denied such requests in other "cases involving substantial pretrial publicity and community impact, for example, the prosecutions resulting from the 1993 World Trade Center bombing . . . and the prosecution of John Walker Lindh, referred to in the press as the American Taliban." Skilling, 561 U.S. at 378 n.11. Still, certain press stories collected by Dahl and entered as exhibits in the evidentiary hearing on the defendants' first motion documented more widespread public reaction to the crimes. For example, the Wichita Eagle reported on increased numbers of security system purchases in the wake of the Birchwood home invasion. We conclude that this sixth factor weighed in favor of presumed prejudice at the time Judge Clark considered the defendants' first motion for change of venue. 90 Based on these facts, the Ninth Circuit presumed prejudice and held that "[t]he nature and extent of the pretrial publicity, paired with the fact that the majority of actual and potential jurors remembered the pretrial publicity, warranted a change of venue," and the refusal to transfer the case "violated Daniels's right to a fair and impartial jury and thus, his right to due process." 428 F.3d at 1212. The defendants are correct that their case and Daniels shared certain characteristics—extensive coverage and citizen awareness; publication of reader viewpoints, some of which demanded vengeance for the victims' murders; and reporting of some facts that would be inadmissible at trial. But the impact on and response from the community was considerably greater in Daniels, where the victims were police officers killed in the line of duty, and community sentiment was so strong that monuments were constructed in their honor. We also are not persuaded by Daniels because it appears to be somewhat behind the United States Supreme Court's most recent discussion of presumed prejudice in Skilling. Had the judges who decided Daniels had the benefit of Skilling at the time they filed their opinion, they may not have relied so heavily on extensive media coverage and a high level of community familiarity to reach their result. Skilling makes clear that more is needed before the Sixth Amendment requires a change of venue because of presumed prejudice. Daniels also appears to be out of step among other Ninth Circuit decisions. See Hayes v. Ayers, 632 F.3d 500, 509 (9th Cir. 2011) (no presumed prejudice even though "stories about [defendant Royal Kenneth] Hayes were unflattering and included inadmissible evidence"; stories "contained no confession or other blatantly prejudicial information of the type readers or viewers could not reasonably be expected to shut from sight"); Ainsworth v. Calderon, 138 F.3d 787, 795 (9th Cir. 1998) (no presumed 91 prejudice in death penalty case despite stories portraying victim as sympathetic, disclosing defendant's criminal history; coverage accurate, factual); Harris v. Pulley, 885 F.2d 1354 (9th Cir. 1988) (no presumed prejudice in death penalty case despite media coverage of defendant's confession, prior conviction for manslaughter, parole violations; editorials, letters called for defendant's execution). At least one district court in the Ninth Circuit has categorized Daniels as an "extreme case likely to invoke strong and lasting impressions" of the defendant because he was "a cop killer, he was hunted by a SWAT team, and one of the men he killed was such an outstanding police officer that his name warranted special public recognition." United States v. Celestine, 3:09-CR-00065 JWS, 2009 WL 3676497, at *5 (D. Alaska 2009) (unpublished opinion). The pretrial publicity at the time of the defendants' first motion, although sustained and unflattering to the defendants, had not made the prosecution into a circus or created a lynch mob mentality. See Stafford, 34 F.3d at 1566 (presumed prejudice appropriate only when publicity created circus-like atmosphere, created lynch mob mentality throughout venire). There was no error in Judge Clark's failure to grant the defendants' first motion for change of venue on a presumed prejudice basis. Second Motion for Change of Venue Our evaluation of presumed prejudice from the vantage point of the second motion for change of venue—considered by Judge Clark in early August 2002 after several television stations aired the Kline ad and secondary coverage of the controversy it generated—changes little. We need only reexamine the second and fourth Skilling factors, the magnitude and tone of coverage and the timing of the crime and trial. We acknowledge that these two factors were affected by the advertisement and resulting coverage, but, we think, only marginally. Although responsible press outlets had 92 refrained from referring to either of the defendants as a murderer before the ad ran, we are confident that the ad's photograph and reference to R. Carr by name as the murderer of the quadruple homicide victims would have been recognized by the vast majority of potential jurors as the overheated campaign pitch it was. There was minimal danger of it being regarded as reliable journalism. As counsel for R. Carr asserted during the hearing on the second motion, the ad was a poor excuse for political speech; but reasonably discerning potential jurors would have recognized that as well. On the fourth Skilling factor, the timing of the crime and trial did not change. However, the ad and stories about its effect on the case and on the primary race fell 2 months closer to the beginning of jury selection than the hearing on the first motion. Although they may have ratcheted up public anticipation of the trial somewhat sooner than could have been expected in the ordinary course, eventually the ordinary course was bound to be followed. Again, sensational crimes inevitably produce at least some breathless press, but the amount attributable to the Kline ad and its secondary coverage was negligible in the grand scheme before us. There was no presumed prejudice for Judge Clark to recognize by granting the defendants' second motion for change of venue. Third Motion for Change of Venue The defendants' third motion came after the completion of jury selection. In the defendants' view, the process of general and individual voir dire, the strikes for cause and the peremptory strikes, although executed in an orderly fashion, had confirmed their worst fears. They contended they were in the center ring at the circus, where a fair trial would be impossible. 95 in-the-moment voir dire affords the trial court a more intimate and immediate basis for assessing a venire member's fitness for jury service. We consider the adequacy of jury selection . . . therefore, attentive to the respect due to district-court determinations of juror impartiality and of the measures necessary to ensure that impartiality." Skilling, 561 U.S. at 386-87. "Negative media coverage by itself is insufficient to establish actual prejudice." Foley, 488 F.3d at 387. And the fact that jurors entered the box with preconceived opinions of guilt alone does not overcome a presumption of juror impartiality. "It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961). "The relevant question is not whether the community remembered the case, but whether the jurors at . . . trial had such fixed opinions that they could not judge impartially the guilt of the defendant." Patton v. Yount, 467 U.S. 1025, 1035, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984); Goss v. Nelson, 439 F.3d 621, 627 (10th Cir. 2006) (defendant's right to impartial tribunal satisfied when jurors can base decision on evidence). In this case, although Judge Clark was brief in his ruling on the defendants' third motion for change of venue, advanced at the conclusion of jury selection, his statement referenced his assessment that, despite widespread pretrial publicity, an unbiased jury had been selected in Wichita. Eight of the 12 jurors eventually seated in the defendants' trial held no prior opinions on guilt. The four who admitted to forming such opinions ultimately said that they could set their opinions aside. See Hale v. Gibson, 227 F.3d 1298, 1320 (10th Cir. 2000) (defendants must show more than juror's preconceived notion; defendant must show juror's notion fixed). On their face, these voir dire responses provided Judge Clark with a reasonable basis for his ruling. See Gardner v. Galetka, 568 F.3d 862, 890 (10th Cir. 2009) (no actual prejudice despite 55 percent of prospective jurors with previous opinion on guilt, including four of 12 seated; court spent 5 days 96 examining prospective jurors about knowledge of facts, ability to set aside opinions of guilt). The defendants argue, nevertheless, that neither Judge Clark nor we can rely on the jurors' declarations of impartiality, and there is some authority for setting aside juror declarations of impartiality in extreme cases. In Irvin, the United States Supreme Court recognized that adverse pretrial publicity can create so much prejudice in a community that juror declarations of impartiality cannot be credited. Irvin involved a situation in which headlines before defendant Leslie Irvin's trial "announced his police line-up identification, that he faced a lie detector test, had been placed at the scene of the crime and that the six murders were solved but petitioner refused to confess." 366 U.S. at 725. On the day immediately before trial began, newspapers carried a story "that Irvin had orally admitted the murder of . . . (the victim in this case) as well as 'the robbery-murder of Mrs. Mary Holland; the murder of Mrs. Wilhelmina Sailer in Posey County, and the slaughter of three members of the Duncan family in Henderson County, Ky.'" 366 U.S. at 726. The press also reported that Irvin had offered to plead guilty in exchange for a sentence other than death. In addition, the record in Irvin evidenced difficulty in impaneling his jury. The court was forced to excuse 268 of 430 potential jurors because they expressed immovable opinions on Irvin's guilt. 366 U.S. at 727. Of the jurors ultimately seated, eight of 12 had admitted to possessing some preconceived opinion on his guilt. Under these circumstances, the Court held that the trial judge erred in accepting the jurors' representations about their ability to be impartial: "The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man. [Citation omitted.] Where one's life is at stake—and accounting for the frailties of human nature—we can 97 only say that in the light of the circumstances here the finding of impartiality does not meet constitutional standards. Two-thirds of the jurors had an opinion that petitioner was guilty and were familiar with the material facts and circumstances involved, including the fact that other murders were attributed to him, some going so far as to say that it would take evidence to overcome their belief. One said that he 'could not . . . give the defendant the benefit of the doubt that he is innocent.' Another stated that he had a 'somewhat' certain fixed opinion as to petitioner's guilt. No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but psychological impact requiring such a declaration before one's fellows is often its father. Where so many, so many times, admitted prejudice, such a statement of impartiality can be given little weight. As one of the jurors put it, 'You can't forget what you hear and see.' With his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other than one in which two-thirds of the members admit, before hearing any testimony, to possessing a belief in his guilt." 366 U.S. 727-28. Since Irvin, the Supreme Court has twice considered whether a juror's declaration of impartiality should be discounted. In Patton v. Yount, 467 U.S. 1025, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984), the jury convicted defendant Jon E. Yount of first-degree premeditated murder and rape of one of his female students. On direct appeal, the state court reversed Yount's conviction and remanded for a new trial. He was again convicted after retrial, and he claimed that pretrial publicity deprived him of his right to trial by a fair and impartial jury. The publicity leading up to his second trial disclosed the result of his first trial, his confession, and his earlier plea of temporary insanity—all information not admitted into evidence at the second trial. Voir dire demonstrated that all but 2 of 163 veniremen had heard of the case, and that 126 of the 163 would carry an opinion of guilt into the jury box. 467 U.S. at 1029. Eight of the 14 seated jurors and alternates admitted that they had formed an opinion of guilt. 467 U.S. at 1029-30. Nevertheless, the Court distinguished Irvin and affirmed Yount's conviction, because jurors' opinions of guilt had weakened considerably