State v. Ordway

The opinion of the court was delivered by

Kim Ordway asserted an insanity defense to charges of first-degree murder and theft in the deaths of his parents and the theft of their automobile. The jury found him guilty of two counts of second-degree murder and one count of felony theft. Ordway appeals his convictions.

Betty and Clarence Ordway lived approximately a mile west of Stockton, Kansas. On Saturday evening, November 20, 1993, in response to a call from the Ordways’ nieces, a sheriff’s officer went to the Ordway house. Investigation disclosed drag marks leading to the garage where the officer found Clarence Ordway’s body wrapped in bedding and partially concealed behind some garbage cans. After other officers arrived, they forced their way into the locked house to check on Betty Ordway. The house appeared to be very clean and neat. There was a dog in one of the bedrooms, but Mrs. Ordway was not found. Some items seized from the house — a book of daily devotions and a pill container with a compartment for each day of the week — indicated that the household routine had been interrupted on Thursday, November 18.

Clarence Ordway died as a result of being shot in the back with a shotgun. The entry wound was about 6 inches below the base of the neck and 2 inches to the left of the spine. There was no exit wound. Clarence Ordway’s left lung and heart were extensively damaged. There was no evidence of defensive injuries to his hands or feet. The date of death was estimated to be November 18,1993.

A thorough search of the house revealed blood spatters, sometimes combined with what appeared to be tissue or fat, in a number of different locations. One area of the carpet in the television room was “roughed up” as if it had been cleaned, and one of the officers reported a smell in the house that he associated with “cleaning fluid and decomposition.” A broken lamp was found in the basement. There did not appear to have been an effort made to clean *778 a blood smear on the front porch steps and across the floor of the garage. •

Law enforcement officials in Kenmore, New York, where Kim Ordway s ex-wife, Suzanne, lived, were advised that Ordway was wanted for questioning in connection with, the homicide in Kansas. On November 22, a New York police officer saw a man sitting in a white Chevrolet with a Kansas license plate, which was parked in front of Ordway s wife’s house. Ordway gave the officer his correct name and stated in response to a question about weapons that there was a shotgun on the front passenger seat. He complied fully with instructions on getting out of the car and being frisked and handcuffed, and stated that he understood his rights as a suspect. “He was very calm,' very passive.” When an officer told him they had been looking-for his mother, Ordway said, “[M]y mom is in the trunk.” A loaded shotgun with the safety, off was found under a blanket on the front passenger seat, and a serrated kitchen knife was found under the driver’s seat of the car. The back seat was filled with clothes; household items, including some utensils; and toys, some in boxes as if new. Clarence Ordway’s wallet and two rings were found in a backpack in the back seat. Betty Ordway’s body, wrapped in a tarp and a rug or blanket, was found in the trunk of the Chevrolet.

Betty Ordway also died as a result of shotgun wounds. The pathologist estimated that Betty Ordway died approximately 3 to -4 days before the autopsy was performed on November 23, 1993. She had two shotgun wounds in her right chest arid one entry wound in her back, which caused damage to her lungs, heart, liver, ribs, vertebrae, and aorta. In addition to the shotgun wounds, the pathologist found' bruises, lacerations, abrasions, and fractures caused by impact with a blunt object. There were bruising and swelling around the left eyebrow; five lacerations on her head; bruising, swelling, and abrasion of the left forearm; and broken bones in both forearms. The pathologist’s opinion was that the injuries to her forearms were defensive wounds and that the other trauma injuries also were inflicted prior to her death.

One of the officers who arrested Ordway testified that Ordway’s passivity was unusual. Ordway made various statements to the of *779 ficer, including the following: “This is a crazy world, especially about mom and dad. . . . This whole thing with mom and dad is crazy.” When the officer asked Ordway what was crazy, he responded, “Life.” He told the officer that the car belonged to one or both of his parents and that he had been taking Xanax, which was his mother’s. Xanax is usually prescribed as an anti-anxiety medication. In response to the officer’s questions, Ordway said that he killed his mother and put her in the trunk, and that he left Kansas on Saturday and had been living with her in the car since then. When asked if he wanted to telephone his father in Kansas, Ordway declined, saying, “No, he won’t answer.” Ordway remained passive until he was being taken from his cell for arraignment, when he rushed at and struggled with four officers.

Ordway was admitted to Lamed State Security Hospital on December 8, 1994, when he was 33 years old. The Lamed forensic staff’s report describes how relatives of the deceased asked a sheriff’s officer to accompany them to the Ordways’ house, where Clarence Ordway’s body was found. The report continues:

“The relatives informed the officer that the Ordway’s son, Kim, had been living with his parents for approximately three to four weeks. They noted that he had been ‘extremely depressed and would spend a whole week in his room alone.’ They also advised that Mr. Ordway had battered his ex-wife who still lived in New York. In addition, they reported that Mr. Ordway had hit his father in the past and ‘had been arrested for it.’ ”

At the forensic staff conference on Ordway, the social worker reported that the defendant had given inconsistent information at various times and was not rehable. According to a report prepared in 1988, when Ordway was 27, his “occupational functioning had been ‘disrupted by heavy alcohol abuse for a number of years.’ ” He had four DUI convictions. He reportedly had abused PCP, LSD, peyote, psilocybin mushrooms, cocaine, and amphetamines. The report contains the following psychiatric history:

“Mr. Ordway has had contact with mental health professionals throughout much of his adolescent and adult life. Because of his involvement in burglaries while in his adolescence, Mr. Ordway was placed in a facility called Berkshire Farms. Although the patient’s adjustment had only been marginal for several years, his functioning deteriorated even further after the death of his brother in 1984. It *780 was at this point in his life that the patient’s involvement with drugs and alcohol increased. In apparent association with his drug and alcohol involvement, the patient physically assaulted his wife on several occasions. Apparently, it was during this time period that Mr. Ordway developed the delusional and paranoid beliefs that his wife was having affairs with other men and that she had been sexually molested by police officers. In 1985 he was reportedly receiving outpatient counseling at the Mid-Area Mental’ Health Center in Buffalo, New York, apparently in connection with his second arrest for driving while intoxicated. After attempting to enter Canada with a shotgun in January of 1988, he was referred for psychiatric evaluation. Subsequently, he was hospitalized at the Erie County Mental Health Center in Buffalo, New York, from January 9,1988 until March 11,1988. He was given the psychiatric diagnosis of Schizophrenia, Paranoid Type, but the diagnosis of (Psychotic) Depression was also considered at that time.”

With regard to Ordway’s mental condition during his hospitalization at Lamed, the report states:

“[S]ince the time of admission, Mr. Ordway has not manifested evidence of delusions, perceptual disturbances, or other psychotic features. [The staff psychiatrist] emphasized that the patient does appear to have a lengthy and well-documented history of chronic depression. He also emphasized the patient’s lengthy and well-documented history of alcohol dependence and involvement with other psychoactive substances. He also felt that the patient’s lifelong adjustment has reflected antisocial and dependent qualities. Throughout the course of evaluation, the patient has not requested nor required prescribed medication for anxiety, depression, or psychosis.”

Ordway was questioned about his condition at the time of the killings:

“When asked whether or not he felt his body was being controlled by outside forces over which he had no control during the time of the crimes, he denied that he was being controlled or influenced to that degree. However, he communicated that he had an intense feeling that his children were in severe danger and that it was because of his parents that they were in danger. When asked whether or not he was experiencing hallucinatory phenomena which controlled or directed him at the time of the crimes, he angrily stated that he had answered that question too many times already.

“. . . Although his description of himself during the time period in question suggests that he may have been experiencing auditory hallucinations which were distorting his perceptions of reality, it does not appear that he was unable to differentiate the difference between right and wrong in reference to the crimes he is charged with having committed. His description of himself prior to the time *781 of the crimes suggests that he may have been feeling depressed; however, it does not appear that he was experiencing vegetative symptoms of depression.”

The forensic staff agreed that the psychiatric diagnoses that best described Ordway were “Dysthymia, Secondary Type, Late Onset; Alcohol Dependence; Polysubstance Abuse; and Personality Disorder Not Otherwise Specified (Antisocial and Dependent).” The staff report concludes:

“[I]t was the opinion of staff that Mr. Ordway has experienced a chronic, nonpsyehotic depression for many years. Prior to the time of the crimes, he may have experienced symptoms of a psychosis (major depression including hallucinations and/or delusions) which impaired his ability to know the nature and quality of his acts. However, in view of the patient’s enduring pattern of maladaptive behavior, including a history of aggressive/impulsive behaviors and substance abuse, it was felt that Mr. Ordway’s personality dynamics are such that he could commit senseless and violent crimes without experiencing hallucinatory phenomena. Consequently, after extensive discussion, the staff concluded that they were unable to form a reasonably reliable opinion about Mr. Ordway’s legal sanity on or around November 18, 1993.”

The Lamed report states that a psychiatric evaluation which had been prepared by Dr. William Logan was signed by the psychiatrist on November 29, 1994. Dr. Logan testified at trial that he had interviewed and evaluated the defendant. The family history Dr. Logan compiled for Ordway showed that Ordway’s maternal grandmother was institutionalized for decades due to severe schizophrenia. According to Dr. Logan, the tendency to develop schizophrenia is genetic so that persons with close relatives who have manifested schizophrenia may be expected to have a higher than usual incidence of the condition. Ordway’s history included hyperactivity as a child and a head injury at the age of 16. Of particular significance, according to Dr. Logan, was an automobile accident on November 22,1984, in which Ordway was severely injured and his younger brother was killed. Ordway was driving, and he was intoxicated. Ordway became severely depressed and began using drugs and alcohol heavily. Dr. Logan noted that Ordway subsequently had suffered renewed depressions which coincided with the anniversary of his brother’s death in November. Ordwáy killed his parents in November 1993.

*782 Dr. Logan testified that in late 1987 to early 1988, Ordway had a psychotic episode which resulted in his being hospitalized, where he was diagnosed as schizophrenic. Joseph Liebergall, a forensic psychologist who directs the Erie County [New York] Forensic Mental Health Center, testified at trial and furnished more information about Ordway’s diagnosis and treatment in 1988. Dr. Liebergall’s agency referred Ordway to two of its consulting psychiatrists. Ordway’s treatment team at the hospital was headed by one of the psychiatrists, Dr. Block. The treatment team’s diagnosis was paranoid schizophrenia. Dr. Liebergall thought that Ordway “suffered from a depression with psychotic features.” Dr. Liebergall testified that his diagnosis differed from the hospital team’s diagnosis but that the two were not exclusive of one another. In fact, when the features of the two illnesses combine in an individual, the condition is called schizoaffective disorder. Among the characteristics Dr. Liebergall noted about Ordway in early 1988 were depression and a great deal of rage. Ordway harbored bizarre thoughts and fixed false beliefs, in the words of Dr. Liebergall. Ordway believed that the world was coming to an end, that his sons had special powers, and that his wife was sexually involved with the police officers of Tonawanda, the suburb of Buffalo where they lived. He was arrested at the Canadian border with a shotgun, and he said it would be better to shoot bears than people. Dr. Liebergall testified that it was clearly possible for a person who was depressed with psychotic features to lack an understanding of the nature and quality of his acts and that they are wrong. When Ordway was medicated with Thorazine, he improved significantly.

According to the testimony of Dr. Logan, in 1992 Ordway again became depressed. He and his wife separated, and he was arrested a fourth time for DUI. After spending some time in California, he arrived in Stockton, Kansas, to spend the summer with his parents. His sons came from New York to be with him for the first part of the summer. After his children left, Ordway began to sink into depression and develop “odd thinking about them.” In October, he decided to go to New York to check on them, but on an impulse he went to Denver instead. There he began to hear voices. He was robbed; he stayed at the bus station for awhile, then he called his *783 parents, who drove to Denver to get him to go back home with them. Back in Stockton, Ordway’s depression worsened and his thoughts became bizarre and persecutory. He developed the idea that his parents either would kill his children or would have someone else kill them. People who came into contact with Ordway at this time described his behavior as weird, odd, brooding, and preoccupied. Dr. Logan thought it was significant that Ordway’s mother had told her sister she was afraid of him. Confirmed reports from a number of sources showed that Ordway isolated himself in his room for at least 7 to 9 days before killing his parents. He said that he was confused and was trying to understand what the voices were telling him. During the late afternoon of November 18, Ordway was overcome with a feeling of panic, and he heard his sons’ voices crying that they needed to be saved. He had the idea that he would go to hell if he did not save his children, and voices were telling him he needed to kill his parents.

Ordway told Dr. Logan that shortly after he killed his parents, the voices and bizarre thoughts subsided. Confused, Ordway decided to go to New York to check on his sons. Dr: Logan testified that it was not uncommon for delusional and rational thoughts to coexist in people with severe mental illness. Dr. Logan believed that in the internal struggle between Ordway’s delusional and rational thoughts, the rational thoughts began to prevail shortly after he killed his parents. Thus, Dr. Logan concluded that, without any realization that it was wrong, Ordway killed his parents in response to the voices, but that he soon began to question whether what he had done was right.

Dr. Logan’s opinion was that Ordway was legally insane when he killed his parents. Asked for his opinion to a reasonable medical certainty about Ordway’s condition at the time of the killings, Dr. Logan stated:

“I believe as I said before that he was suffering from a major depressive reaction with psychotic features, principally the delusional idea that his parents were hurting his children and auditory hallucinations of his children yelling for him to save them, and also the idea that if [he] did not act, he would be condemned to hell. I believe that these ideas were what guided his behavior at the time to the extent that he did not know what he was doing in any kind of rational way.”

*784 We first consider Ordway’s argument that the jury should have been instructed on voluntary manslaughter as a lesser included offense. Ordway was charged with two counts of first-degree murder. The jury was instructed on the elements of first- and second-degree murder with respect to each count. Defendant’s counsel requested that the jury be instructed on voluntary manslaughter, and the district court refused.

The trial court has an affirmative duty to instruct on all lesser included offenses established by the evidence, even if it is weak and inconclusive. State v. Gadelkarim, 256 Kan. 671, 694, 887 P.2d 88 (1994). Ordway contends that a voluntary manslaughter instruction was required in this case because the evidence showed that he killed his parents without malice and for the purpose of preventing them from harming his children.

Voluntary manslaughter is defined in K.S.A. 21-3403: “Voluntary manslaughter is the intentional killing of a human being committed: (a) Upon a sudden quarrel or in the heat of passion; or (b) upon an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A. 21-3211, 21-3212 or 21-3213 and amendments thereto.” K.S.A. 21-3211 provides: “A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force.” There is no contention that either K.S.A. 21-3212 or K.S.A. 21-3213 is applicable in the present circumstances.

Ordway principally relies on subsection (a) of the voluntary manslaughter statute. It is his contention that his intentional killing of his parents was committed in the heat of passion within the meaning of the statute.

Ordway concedes that up until now cases interpreting the statute apply an objective test in determining whether the provocation was sufficient to kindle heat of passion, within the meaning of the statute. In State v. Cheeks, 258 Kan. 581, Syl. ¶ 7, 908 P.2d 175 (1995), the court stated:

“The key elements of voluntary manslaughter are whether the killing was intentional and whether there was legally sufficient provocation. K.S.A. 21-3403. *785 Whether a provocation is legally sufficient is an objective, rather than a subjective, determination. To be legally sufficient to intentionally kill an individual, a provocation must consist of more than mere words or gestures, and if assault or battery is involved the defendant must have a reasonable belief that he or she is in danger of great bodily harm or at risk of death. A provocation is legally sufficient if it is calculated to deprive a reasonable person of self-control and to cause the person to act out of passion rather than reason.”

Ordway wants the court to consider the possibility that a subjective standard should be applied in some circumstances. He suggests that the key lies in defining heat of passion to include a state of extreme distress caused by delusions. We find no merit in the suggestion.

Ordway argues that the legislature’s removing the element of malice from the version of the voluntary manslaughter statute that became effective in 1992 “permits the court to recognize a different form of manslaughter, in order to allow conviction of mentally ill criminal defendants of a homicide committed without premeditation or malice.”

Contrary to Ordway’s premise, the phrase “without malice” was included in the statute before the 1992 revision. In 1992, the phrase “without malice” was removed when the element of malice was removed from the statutory definitions of first- and second-degree murder. L. 1992, ch. 298, §§ 3, 4. Hence, the pre-1992 presence of “without malice” in the voluntary manslaughter statute served to contrast it with the statutory definitions of first- and second-degree murder. With elimination of malice in the murder statutes, the phrase “without malice” no longer served a purpose in the voluntary manslaughter statute and was removed. The language change did not affect the substance of 21-3403. Malice was not an element of voluntary manslaughter either before or after the 1992 amendment. Here are the changes which were made in the statute:

“Sec. 5. K.S.A. 21-3403 is hereby amended to read as follows: 21-3403. Voluntary manslaughter is the unlawful intentional killing of a human beings without malice, which is deae intentionally upon a sudden quarrel er in the heat ef passion committed:

(a) Upon a sudden quarrel or in the heat of passion; or

(b) upon an unreasonable but honest belief that deadly force was justified in self-defense.

*786 “Voluntary manslaughter is a class C felony.” L. 1992, ch. 298, 5.

In 1993, subsection (b) was amended as follows: “Voluntary manslaughter is the intentional killing of a human being committed . . . upon an unreasonable but honest belief that circumstances existed that justified deadly force was justified tit self defense under K.S.A. 21-3211, 21-3212 or 21-3213 and amendments thereto.” L. 1993, ch. 291, 20. The elimination of the element of malice from the statute, according to Ordway, broadened the category of voluntary manslaughter so that it could “include intentional killing by a mentally ill defendant . . . whether or not their beliefs are founded in reality.” We do not agree.

Ordway further argues that a voluntary manslaughter instruction should have been given because the evidence showed that he killed his parents upon an unreasonable but honest belief that circumstances existed that justified the use of deadly force against them in the defense of his children. K.S.A. 21-3211 provides: “A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force.” In this case, there was evidence to the effect that it appeared to Ordway that his use of force against his parents was necessary to defend his children from unlawful force being used against them by his parents. There is no evidence or even contention that his belief was reasonable.

K.S.A. 21-3403(b) defines voluntary manslaughter as an intentional killing upon an unreasonable but honest belief that circumstances existed that justified deadly force under 21-3211. K.S.A. 21-3211 provides that the circumstances justify the use of force when a defendant reasonably believes that its use is necessary to defend others. When the two statutes are read together, the unreasonable belief element of 21-3403 must be reconciled with the reasonable belief element of 21-3211. It seems that this may be accomplished by a plain reading. That is, if the reasonable belief that force was necessary, which is the substance of 21-3211, is substituted for the defense-of-self-or-others as designated in 21-3403(b), the latter provides that voluntary manslaughter is an in *787 tentional killing upon a defendant’s unreasonable but honest behef that he or she reasonably believed the use of force was necessary to defend others. In other words, the 21-3211 reasonableness of the behef that deadly force was justified is irrelevant because the 21-3403(b) behef is unreasonable. Although Ordway could not qualify for acquittal under the perfect defense of defense of self or others under 21-3211, the reasonableness element of 21-3211 should not prevent a trial court’s giving an instruction on the lesser included offense of voluntary manslaughter.

With regard to a defense-of-others instruction, this court has stated that the evidence must support affirmative findings by a rational factfinder to the subjective question whether defendant honestly believed his action was necessary to defend others as well as to the objective question whether his behef was reasonable. State v. Rutter, 252 Kan. 739, 746, 850 P.2d 899 (1993). In a case such as the present one, however, where the defendant is seeking an instruction on the lesser included offense of voluntary manslaughter rather than asserting the affirmative defense of defense of others, the objective component of defense of others should be immaterial. Both elements in the offense of voluntary manslaughter as defined in 21-3403(b) are subjective. The defendant’s behef must be sincerely held, and it must be unreasonable. State v. Jones, 257 Kan. 856, 873, 896 P.2d 1077 (1995). For this reason, the “objective elements” of 21-3211 — an aggressor, imminence, and unlawful force — would not come in for consideration.

Legislative history of K.S.A. 21-3403 shows that the definition of voluntary manslaughter was expanded by the addition of subsection (b) in 1992. L. 1992, ch. 298, § 5. Until then, the statute defined voluntary manslaughter as an intentional killing upon a sudden quarrel or in the heat of passion. Notes on proposed criminal code revisions were attached to the minutes of the Senate Judiciary Committee from March 22, 1992, which contained the following comments about subsection (b) of 21-3403:

“(b) ‘Imperfect right to self-defense’ manslaughter

“This new subsection covers intentional killings that result from an unreasonable but honest behef that deadly force was justified in self-defense. In essence, the defendant meets the subjective, but not the objective, test for self-defense. *788 This so-called ‘imperfect right to self-defense’ is recognized in various forms. Kansas apparently recognizes it for unintentional killings under involuntary manslaughter. State v. Gregory, 218 Kan. 180 (1975); State v. Warren, 5 Kan. App. 2d 754 (1981) State v. Meyers, 245 Kan. 471 (1989). The Model Penal Code also follows this approach. Some states, e.g. Illinois, recognize this partial defense for intentional killings. See, LaFave, Criminal Law, pp. 665-666 (1986).

“Applying this partial defense to intentional killings is simply a recognition of the practical realities of plea bargaining and jury verdicts. Often it is unjust to prosecute and convict such killers of murder and it is equally unjust to acquit them. This new subsection provides a middle category that is theoretically sound and legitimizes the realities of plea bargaining and jury verdicts.”

There is no express indication in the note to 21-3403(b) that there was any contemplation that the subsection s unreasonable belief might be based on psychotic delusions (or some other form of mental illness). Nor does examination of the Kansas case law cited in the note indicate that application of subsection (b) to cases where a homicide defendant denied criminal responsibility due to mental illness was envisioned.

In Illinois, the offense known as second-degree murder includes the elements of Kansas’voluntary manslaughter offense, K.S.A. 21-3403(b). 111. Comp. Stat. ch. 720 5/9-2 (1994) provides, in part:

“(a) A person commits the offense of second degree murder when he commits the offense of first degree murder as defined in paragraphs (1) or (2) of subsection (a) of Section 9-1 of this Code and either of the following mitigating factors are present:

(1) At the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed or another whom the offender endeavors to kill, but he negligendy or accidentally causes the death of the individual killed; or

(2) At the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.

“(b) Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.

“(c) When a defendant is on trial for first degree murder and evidence of either of the mitigating factors defined in subsection (a) of this Section has been presented, the burden of proof is on the defendant to prove either mitigating factor by a preponderance of the evidence before the defendant can be found guilty of second degree murder. However, the burden of proof remains on the State to prove beyond a reasonable doubt each of the elements of first degree murder and, when appropriately raised, the absence of circumstances at the time of the *789 killing that would justify or exonerate the killing under the principles stated in Article 7 of this Code.”

Article 7 includes the principle of self-defense. Explaining the relation of 5/9-2(a)(2) to self-defense, Illinois courts state that both involve the question whether the defendant subjectively believed at the time of the Jailing that deadly force was justified, but they differ with respect to the reasonableness of that belief. Where the belief was unreasonable, the offense should be reduced from murder to manslaughter. Where the belief was reasonable, defendant should be acquitted. See, e.g., People v. O'Neal, 104 Ill. 2d 399, 472 N.E.2d 441 (1984). In other words, 5/9-2(a)(2) functions as an imperfect form of self-defense.

The Illinois intermediate appellate court considered the “unreasonable but honest belief” mitigation provision of the statute in People v. Aliwoli, 238 Ill. App. 3d 602, 606 N.E.2d 347, app. denied 148 Ill. 2d 644 (1992). The defendant in that case was charged with attempted first-degree murder of three police officers when he shot and wounded them trying to avoid being stopped for a traffic violation. Defense counsel asserted an insanity defense, but defendant testified that he acted in self-defense. The appellate court affirmed the trial court’s refusing to give an instruction on second-degree murder for several reasons. One reason was that Illinois does not recognize an attempted second-degree murder offense. Another was that the court found

“no evidence of mitigation in the case at bar that justifies the giving of the instruction even if the crime of attempted second degree murder existed in Illinois. Defendant failed to validly prove a sudden and intense passion or that he was seriously provoked by the officers’ routine stop for passing a school bus. The evidence adduced at trial was that defendant was either insane or that he had a longstanding mental illness, neither of which is a mitigating factor under the statute. (Ill. Rev. Stat. 1987, ch. 38, pars. 9-2(a)(1), (a)(2).) An improved insanity defense was not intended to be a mitigating factor in the crime of second degree murder. (See People v. Pecina (1985), 132 Ill. App. 3d 948, 954, 477 N.E.2d 811 (where the court rejected defendant’s instruction on voluntary manslaughter even though there was evidence that tended to support the defenses of insanity and voluntary intoxication).) The predatory conduct of the defendant in searching out his victims would negate the notion of self-defense.” 238 Ill. App. 3d at 620-21.

*790 We conclude that K.S.A. 21-3403(b) has no application where a defendant raises the defense of insanity, and more specifically, the “unreasonable but honest belief” necessary to support the “imperfect right to self-defense manslaughter” cannot be based upon a psychotic delusion.

Ordway next argues that the jury should have been instructed on the disposition of defendant if he were found not guilty by reason of insanity. Ordway requested the following instruction on the effect of a verdict of not guilty because of insanity:

“A person found not guilty because of insanity is committed to the State Security Hospital for safe-keeping and treatment until it is found by this Court, after the Rooks County Attorney has had the opportunity to present all relevant evidence, that he is no longer mentally ill or a threat to himself or others.”

The trial judge refused to give the requested instruction on the ground that it called too much attention to a matter which lay outside the jury’s domain. Instead, he gave PIK Crim. 3d 54.10-A, modified by the addition of the italicized words: “A person found not guilty because of insanity is committed to the State Security Hospital for safe-keeping and treatment unless and until discharged according to law.” Defense counsel objected that the pattern instruction, even modified, does not inform the jury that defendant could remain hospitalized for a prolonged period, even for life.

Ordway also complains about the trial court’s response to a question posed by the jury during its deliberations. The presiding juror submitted the following written question: “To Judge Bouker, re: Instruction No. 13. Is the jury entitled to receive any additional information relative to safekeeping, treatment, and discharge?” Defense counsel suggested giving his requested instruction on the effect of a verdict of not guilty because of insanity. Over defendant’s objection, the trial court gave the following response:

“The issue that your question involves is the sanity of Mr. Ordway at the time of the incidents specified in the complaint. What happens to Mr. Ordway after this trial has nothing to do with deciding the question of sanity. You must not speculate further on what may happen after this trial but must confine yourselves strictly to the instructions given by the Court and the evidence you have heard.”

*791 The standard for this court’s review of the trial court’s instructions is well established: “If jury instructions properly and fairly state the law as applied to the facts in the case when considered as a whole and if die jury could not reasonably be misled by them, the instructions should be approved on appeal.” State v. Butler, 257 Kan. 1043, Syl. ¶ 10, 897 P.2d 1007 (1995). As to the trial court’s response to a jury’s mid-deliberation question, K.S.A. 22-3420(3) provides:

“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.”

Ordway contends:

“[T]he error consists of allowing the jury to remain confused. Because the jury clearly debated the question whether to find Kim Ordway not guilty by reason of insanity, but were concerned about the consequences of such a verdict, it was error for the court not to clear up the confusion. Without giving more explanation to the jury under the circumstances the trial court created the very ‘fear of the prompt release’ that prompted the development of the rule that the court may tell the jury something about the release procedures, and prevented the defendant from receiving fair consideration of his evidence of insanity. [State v.] Blake, [209 Kan. 196, 495 P.2d 905 (1972)].”

In State v. Hamilton, 216 Kan. 559, 534 P.2d 226 (1975), the claimed error was that the trial court instructed the jury as to the legal consequence of a verdict of not guilty by reason of insanity. This court noted that K.S.A. 22-3428(3) mandated that the trial court so instruct the jury, and said:

“We have not spoken definitively on the effect of 22-3428(3), although in State v. Blake, 209 Kan. 196, 207, 495 P.2d 905, we said that to include the verbatim text of former K.S.A. 62-1532 in the instructions was prejudicially erroneous when combined with the trial judge’s cross-questioning of a defense witness. In the Blake opinion we carefully refrained from passing judgment on the impact of 22-3428, previously adopted by not yet in effect. We did not mean to suggest that an instruction on the substance of 22-3428, standing alone, would be clearly erroneous.

“However, we did have this to say in Blake on the subject of prejudice: that an instruction on the substance of the statute could ‘no doubt be a two-edged sword. *792 In some cases it may assure a reluctant juiy that their acquittal of an “insane” defendant will not immediately “put him on the bricks.” In others it may achieve the result we perceive here, warning the jury that such a result may be achieved all too soon.’

“In our opinion, the view which was expressed in Lyles v. United States, 254 F.2d 725 (D.C.), reflects a rational view of the fitness of this instruction where sanity has been placed in issue.. . .

“ ‘This point arises under the doctrine, well established and sound, that the jury has no concern with the consequences of a verdict, either in the sentence, if any, or the nature or extent of it, or in probation. But we think that doctrine does not apply in the problem before us. The issue of insanity having been fairly raised, the juiy may return one of three verdicts, guilty, not guilty, or not guilty by reason of insanity. Jurors, in common with people in general, are aware of the meanings of verdicts of guilty and not guilty. It is common knowledge that a verdict of not guilty means that the prisoner goes free and that a verdict of guilty means that he is subject to such punishment as the court may impose. But a verdict of not guilty by reason of insanity has no such commonly understood meaning. As a matter of fact its meaning was not made clear in this jurisdiction until Congress enacted the statute of August 9, 1955. It means neither freedom nor punishment. It means the accused will be confined in a hospital for the mentally ill until the superintendent of such hospital certifies, and the court is satisfied, that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others. We think the jury has a right to know the meaning of this possible verdict as accurately as it knows by common knowledge the meaning of the other two possible verdicts.’ [254 F.2d at 728].” 216 Kan. at 563-64.

We then concluded:

“While we cannot say instruction sixteen was clearly erroneous as a matter of law, we believe it went further than the legislature had intended. K.S.A. 22-3428(3) (Weeks 1974) does not require that the statute be quoted verbatim, only that the jury be instructed as to its substance. The statute provides, in part, that a person committed thereunder may be granted convalescent leave or discharge as an ‘involuntary patient’ after thirty days notice to the county attorney and sheriff. The conditions under which an ‘involuntary patient’ may be discharged or given convalescent leave and the procedures therefor are not set out in 22-3428; resort must be had to other statutes. (K.S.A. 1974 Supp. 59-2924.) We cannot presume a legislative intent that all the statutory details be incorporated in an instruction to the jury. In the Lyles case the court commented that ‘a recitation of the statutory procedure in great detail, such as reading the entire section of the statute’ might tend to be confusing. It is our opinion the legislature intended only that the juiy be apprised that the defendant, if found not guilty because of insanity, would be committed to the state security hospital for safekeeping and treatment until granted discharge or convalescent leave as provided by law. This *793 seems to us to be the substance of the statute and we believe an instruction to such effect will fulfill the spirit of the law.” 216 Kan. at 565.

Here, the trial court gave PIK Crim. 3d 54.10-A, which complies with our opinion in Hamilton. Thus, we find no error in the trial court’s instruction since it instructed the jury as to the substance of the statute.

Ordway next complains that the prosecutor’s comment in opening statement on Ordway’s pretrial assertion of his right to counsel was prejudicial error. During his op