State v. Marsh

81,135 No. II, Kansas, Michael Lee Marsh

State Appellee, Appellant. 445) (102P.3d filеd Opinion December 2004. Zinn, defenders, R. Rebecca E. Woodman and Steven argued capital appellate the cause and were on the briefs appellant. cause, Bork, Ail- IC assistant attorney general, argued Kristafer John Reimer, assistant Carla Elizabeth attorneys general, Maag, slieger, Jared Stovall, were on the brief for attorney general, appellee. J. of the court was delivered opinion by and This is an Allegrucci, Luckert, Gernon, Beier, JJ.: defendant, II, Michael L. Marsh from convictions of appeal (M.P.), murder of Elizabeth Pusch capital Many first-degree pre- arson, meditated murder of Ane Pusch Marry (Marry), aggravated and Marsh has been sentenced to death for aggravated burglary. offense, life with a minimum capital imprisonment mandatory term of 40 for the murder of 51 months for years Marry, aggravated arson, and 34 months for The district court aggravated burglary. ordered the last three sentences to be served consecutively.

On Marsh raises issues from the appeal, arising guilt phase of the trial issues from the We penalty phase. begin by that there ais of trial observing heightened scrutiny proceedings Alabama, 625, 637-38, case. Beck v. 65 L. Ed. (1980). However, 2d 100 S. Ct. 2382 because we conclude 21-4624(e) face, K.S.A. is unconstitutional on its precluding appli- cation of the death we will not penalty, apply heightened scrutiny standard of review to the issues on remaining appeal.

We deem the (1) issues to be Is there following controlling: substantial evidence to each of Marsh’s convic- competent support (2) tions? Was evidence excluded the district court? improperly (3) 21-4624(e) Is K.S.A. (4) unconstitutional on its face? Is there substantial evidence to a hard 40 competent support imposition and, sentence for (5) murder of Is the premeditated Marry? hard 40 scheme set forth K.S.A. 2003 21- sentencing Supp. 4635(a) unconstitutional?

FACTS 17, 1996, On the and her 19-month-old evening Marry June M.P., were murdered their Wichita home. died daughter, Marry aas result of wounds to her head knife multiple gunshot wound to her heart. The or perpetrator perpetrators apparently did not harm M.P before the house afire and physically setting the child to die in the M.P. sustained leaving ensuing conflagration. severe bums to her failure body, resulting multiple organ death on 1996. June started the fire was determined

Fire intentionally investigators An revealed with an accelerant body. autopsy Marry’s applied heart, times, in the and her throat stabbed had shot been Marry had died as a result concluded coroner slashed. The Marry county death. set afire after wounds, hеr with her body detectives interviewed In the initial stages investigation, (Pusch), husband, mentioned Eric Pusch who spent having Marry’s Marsh, friend, before to work Michael 17 with most going June Pizza Hut. man for a local 4:30 as a p.m. delivery approximately to interview Marsh. This led the police Marsh resulted his confession interviews with A series of M.P. he fled the residence. when Marry abandoning shooting obtain from the the detectives his motive was to He told money Marsh, in the home he to be Pusch planned family. According arrived, tie them and wait until Pusch when and M.P. up, Marry then threaten Pusch with harm to his wife home. He would got Marsh needed for a to Alaska. and child to obtain trip money M.P. arrived at the went when indicated his plan awry Many and shot than he had he house earlier Marry. anticipated; panicked times he he could not recall how he told detectives many Initially, once. he indicated firing gun trigger; subsequently, pulled he indicated the fire. At one Marsh was point equivocal regarding fire; he stated he could did at another he set point probably and, remember; the fire. Marsh de- not he denied setting finally, involved in the crimes. nied Pusch was any way committing Marsh’s confes- There was substantial evidence corroborating with his to the Pusch home sion. Marsh lived Keys grandparents. in a next to the home. were found discarded yard grandparents’ execution of a search warrant the items recovered during Among were a .25 caliber with five at the residence pistol grandparents’ shoes, a Marsh’s bloodstained tennis the magazine, cartridges and a water with holes in it duct bullet wrapped tape, pillow at trial with around its neck. bottle duct testimony tape Expert a makeshift si- and bottle could be used as established the pillow lencer. medium and M.P.’s tested for

Both clothing positive Marry’s However, Marsh’s consistent with fluid. vapors lighter petroleum and shoes tested blood was clothing negative vapors. Marry’s shoes; found on one of Marsh’s tennis so also was the inexplicably, blood of Pusch. trial,

Prior to the State filed a motion in limine to Marsh prevent from circumstantial evidence that Pusch introducing suggesting stabbed and set the fire M.P. The State contended Marry killing that Kansas law would admission of circumstantial evi- prevent dence Pusch in the face of direct evidence tending implicate Marsh killed and set the fire. Marsh’s trial counsel Marry argued there was substantial evidence Pusch to the crimes and linking the evidence the defendant to introduce at trial. proffered sought The district court limine, the State’s motion in granted reasoning that the State’s evidence Marsh was direct аnd thus the against defense could not circumstantial evidence to present proffered Pusch. implicate found Marsh M.P., murder of first- jury guilty capital arson, murder of and bur-

degree Many, aggravated aggravated trial, At the the State relied glary. penalty phase factors to a death sentence: following statutory aggravating support (1) Marsh or killed or created a risk of knowingly purposely great (2) to more than one he committed the crime in person; order to avoid or a lawful (3) arrest or he prevent prosecution; committed the heinous, crime an atrocious or cruel especially manner. See K.S.A. 21-4625. The found all three jury circumstances existed and were not outweighed by any mitigating circumstances and to a sentence of death. unanimously agreed

At the trial found sufficient evidence to sentencing, judge sup- the sentence of death recommended See K.S.A. port jury. 21-4624(f). The trial also found the same three judge circumstances were not circumstances to outweighed by mitigating of a hard-40 sentence. See K.S.A. 2003 support imposition Supp. 21-4638. Marsh also was sentenced to 51 months for aggravated arson and 34 months for with all sentences to aggravated burglary, be served consecutively.

SUFFICIENCY OF THE EVIDENCE The issue on is limited to whether the evidence was suf- appeal ficient to verdict Marsh support juiy’s finding guilty to establish was insufficient evidence Marsh contends

murder. cause fire; (2) were the M.P.’s bums (1) that: he set proximate M.P. with death; (3) killed he or premeditation. of her intentionally raised, our standard issue is the evidence When sufficiency evidence, in the viewed whether, of all the after review review con- court is favorable to most appellate prosecution, light the defendant have found factfinder could that a rational vinced Zabrinas, 271 Kan. doubt. State a reasonable beyond guilty 441-42, 24 P.3d He ad- to the crime of confessed

Marsh burglary. aggravated head in the in the Pusch home mitted Marry shooting hiding used to The .25 caliber into the bedroom. came when she pistol at his found Marsh’s was shoot 'backpack subsequently Marry a fire with to start admitted to home. He attempting grandparents’ this was unsuccessful. crimes but claimed to conceal his matches evidence there Nonetheless, the uncontroverted we know from of M.P.’s to more than that caused burns a fire body. percent fire, the cir- Marsh set the direct evidence there is no Although con- factfinder to for a rational evidence is sufficient cumstantial that he aban- that he did so and doubt a reasonable clude beyond M.P. die in the fire. doned to establish the evidence was insufficient also

Marsh argues her death. This cause of were the M.P.’s bums argument proximate the medical coroner tes- fail. must Both physician treating from the extensive bums death resulted tified M.P.’s cause of internal related failure of her and the Conversely, organs. body did to M.P. at the doctors concluded both hospital drugs given not cause her death. sustained offense of even the

A conviction may gravest Penn, 561, 564, 23 P.3d State v. evidence, 271 Kan. circumstantial and not an (2001), of a and it is the function 889 jury appellate of witnesses. and on court to evidence credibility weigh pass 27, 30, (2000). consid- Moore, 4 P.3d 1141 After State v. 269 Kan. consideration for its the evidence all of jury presented ering the evidence issue, we conclude Marsh’s this sufficiency fail. must arguments

529 OF THE EXCLUSION MARSH’S EVIDENCE

Marsh contends the district court erred in evidence excluding Pusch to the crimes. Marsh the court’s connecting argues pretrial order in limine the evidence was erroneous for two rea- excluding First, sons: the Kansas evidence rule excludes mo- third-party only evidence, tive in the evidence absence of other relevant circum- direct, crime; second, stantial a or to connect third to the party State, after Pusch testified as a witness for the the “door was and the order in limine have should been opened” disregarded. “ ‘The of a limine all motion in is to assure a fair and purpose parties impartial evidence, statements, trial inadmissible by prohibiting prejudicial improper ” Abu-Fakher, 584, 594, counsel.’ 56 State v. 274 Kan. P.3d 166 questions by (2002) Albrecht, 634, 638, [1991]). Brunett v. 248 Kan. 810 P.2d 276 (quoting A whose evidence is excluded a motion limine has the party sufficient evidence to the issue responsibility proffering preserve 99, Evans, 95, on v. 275 (2003). State Kan. 62 220 P.3d appeal. We observe State not does of Marsh’s challenge sufficiency to the district court. We conclude the issue been has proffer prop- for erly preserved appeal.

We our standard of review to be as stated Evans: acknowledge “K.S.A. 60-261 no error in either admission the exclusion provides or of evidence a new trial or for verdict ground aside a unless granting setting refusal to take such action be inconsistent with substantial appears justice. court at of the must defect in error or every stage disregard proceeding which does not affect the substantial State v. proceeding rights parties. Leitner, 398, 7, (2001); Morris, 964, 272 Kan. 34 P.3d 42 State v. Kan. 255 Syl. ¶ 6, (1994). P.2d Syl. ¶ “Errors in violation of a constitutional of a are right party governed by 591, 598, federal constitutional error rule. State 266 Kan. 973 P.2d 794 Lyons, (1999). rule, federal an Under the constitutional error error of constitutional mag- nitude is serious not bе found unless the court is harmless may appellate to declare a belief that it harmless reasonable doubt. Before willing beyond harmless, the court declare the it be able error must to declare may beyond little, reasonable doubt that the error had if likelihood of any, having changed Leitner, 8; Clark, 460, result of the trial. Kan. State v. 261 Kan. Syl. ¶ (1997); McClanahan, 931 P.2d 664 259 Kan. State P.2d Syl. ¶ “This court has the state Consti- under and federal previously recognized tutions a defendant is entitled to of his or her and that defense present theory

530 de- of that violates that is an the exclusion of evidence part theory a. integral Kan. State a fair trial. 254 at 486 fundamental to (quoting fendant’s Mays, right 2, Gonzales, 710, [1978]); 245 576 647 State v. 223 Kan. P.2d v. Syl. Bradley, ¶ ‘ (1989). 691, 699, are than “Few more fundamental Kan. 783 P.2d 1239 rights ’ Gonzales, Kan. witnesses defense.” 245 an accused to in his own that of present 284, 302, 297, 93 35 L. Ed. 2d v. 410 U.S. Mississippi, at 699 Chambers (quoting is, however, [1973]). to statutory 1038 The to a defense subject S. Ct. right present State v. of evidence rules and case law rules interpretation procedure. 11, Davis, 1, 315, 319, (2000); Kan. 7 P.3d State 256 269 Kan. 224 Bedford, Evans, (1994); 102. State v. 275 Kan. at P.2d 735 Kan. at 714.” Bradley, to we turn the substantive With above standards place, law err in as a matter of Did district court issue: concluding crimes, as circumstantial evidence Pusch to connecting was irrelevant? outlined Marsh’s proffer, statute, that, rule is unless otherwise provided by general decision, all or court relevant evidence constitutional prohibition, 60-407(f). hav evidence is admissible. K.S.A. Relevant is “evidence to material fact.” K.S.A. 60- reason any tendency prove any ing relevance, 401(b). To there must be some material or establish facts and the inference or connection between asserted logical establish. State to 266 Kan. result are Lumley, they designed 939, 950-51, (1999). 976 P.2d We have also recognized intrin direct and evidence are values of circumstantial “probative similar, there is no sound for reason sically drawing logically Scott, to each.” State v. to distinction to weight assigned 103, cert. denied 516, 271 Kan. 21 P.3d Syl. ¶ (2001). evidence,

Under the rules of we have “Where above said: relies rather State on direct than on circumstantial evidence conviction, evidence offered defendant to indicate a possible motive than to the crime someone other the defendant commit absent some evidence to connect the third other incompetent with the State v. added.) crime.” 169 Kan. Neff, party (Emphasis cert. denied 340 U.S. 866 We 218 P.2d Syl. ¶ motive alone would said in that evidence of third person’s Neff fact, would not have a material but instead any tendency prove serve “confuse juiy, permit [jurors] indulge specu rel- lations on collateral matters devoid of value probative wholly ative to who committed the and to divert their attention [crime] from the main issue were sworn to 169 Kan. at 123. Thus they try.” understood, the so-called evidence rule has limited third-party ap- and is most subordinate to the rules of plication assuredly general evidence and the definition of in K.S.A. 60- statutory relevancy 401(b).

Our recent decision in State v. Evans also to helps clarify limited of the rule motive evi- application excluding third-party Evans, dence. In the State asserted it would call two eyewitnesses Evans shot the victim. In the State’s motion in testily opposing limine, the defendant of several witnesses proffered testimony who said Reed, saw a third the murder they person, holding after the shot. Thus there was direct evidence weapon immediately victim, Evans shot the and there was circumstantial evidence Reed shot the victim. The district court excluded the circumstantial ev- idence under the evidence rule. 275 Kan. at 97-98. We third-party reversed, that, in value, terms of there was no noting probative distinction between direct and circumstantial evidence. 275 Kan. at 105. We further stated: “The trial court’s exclusion of the evidence was inconsistent proffered with substantial justice Evans’ substantial infringed upon evidence rights. Evans in this case was more than sought present that someone other than just

the defendant have committed the may crime. There was evidence that linked Reed to the commission of the crime—witnesses saw Reed im- holding gun after the shot was fired —and mediately evidence that Reed admitted subsequently circumstances, [the victim] his Under shooting these it dumping body. was erroneous for the trial court to have excluded Evans from presenting proffered circumstantial evidence.” 275 Kan. at 106. that, Both and Evans while evidence of the motive clarify Neff crime, of a third alone, to commit the relevant, is not party standing such evidence be relevant if there is other evidence may connecting the third to the crime. A rule is that circumstantial party corollary evidence a third to a crime will not be excluded connecting party because the State relies direct evidence of the de- merely short, fendant’s Instead, there is no line rule. there guilt. bright must be the sound exercise of discretion on the judicial dependent of facts and Here, circumstances case. Marsh did totality given Rather, he also motive. of Pusch’s evidence not merely proffer crime. This to the Pusch’s connection evidence of other proffered the evidence cоnsider whether the district judge required 60-407(f), failure to do so constitutes and his K.S.A. relevant under error. our court are decisions of there

We arguably suggest recognize rule more evidence we should broadly. third-party apply ing (2000); 315, 320, State 7 P.3d 224 269 Kan. v. See State Bedford, (1997); 644, 666, State Bornholdt, 932 P.2d 261 Kan. Calvert, (1994); State v. Beckham, 255 875 P.2d 257 Kan. these cases (1973). To the extent 174, 179, 505 P.2d 1110 Kan. Evans, are are inconsistent with they disapproved. admit court’s refusal to reasons the district

There are additional error. evidence constituted the third-party ev- First, inflated view of even under the State’s third-party as to the rule, not have been the rule should idence applied The State’s evidence on and the arson murder charges. aggravated circumstantial, direct, because Marsh not those crimes was specif- Evans, M.P.’s death. See the fire to denied leading setting ically 275 Kan. at 105-06. that, Marsh’s contention also is merit to

There regardless limine, in order in it erred the district court’s failing propriety testified at trial. Marsh after Pusch admit the evidence to proffered the door” to evidence con- that Pusch’s testimony “opened argues Pusch to the crime. necting the door for otherwise

A may through testimony, open party, 322; 269 Kan. at State State v. inadmissible evidence. Bedford, 86, 94, The admission McClanahan, 259 Kan. 910 P.2d 193 is consti- of a third circumstantial evidence person’s culpability is a wit- that third where government person tutionally required (1994) States 13:38 the United Evidence ness. on (citing § Jones decisions in Olden Court’s Kentucky, Alaska, [1988]; and Davis v. 109 S. Ct. 480 102 L. Ed. 2d [1974]). In both Olden Ed. 2d 94 S. Ct. 1105 39 L. of con- Davis, constitutional the Court held defendant’s right from he was was violated frontation prohibited upon showing to cross-examination in “otherwise designed appropriate engaging Olden, form of bias on the of the show witness.” prototypical part 231; Davis, noted, U.S. at 415 U.S. at has been 318. As “[w]hat lie, motive could a witness have to than to deflect greater suspicion from himself or herself?” on Evidence 13:38. § Jones Evidence that in a witness was fact the who committed person the crime is almost relevant be and should admissible where always However, the witness testifies defendant. we did against uphold a district court’s refusal allow such in evidence State v. Bedford. It on this case the State bases its that Pusch’s argument did not door to evidence of his involvement testimony open the crime. our decision based circumstances. Bedford, unique husband testified on behalf

Although estranged Bedford State, his showed that the victim to a went simply testimony murder, bar on after which he never saw the victim day 269 Kan. at 319-321. There was no again. apparently testimony him in to the defendant murder and thus any way connecting need little his question credibility. the district concluded court erred an order

Having entering limine, we turn to the issue of whether the exclusion of the third- evidence violated Marsh’s fundamental to a fair trial. party right We will not extend of this with an ex- unduly length opinion haustive review of the evidence Marsh that tended proffered connect Pusch to the crime. The fact district is the court miscon- strued the evidence rule and did not determine third-party whether the evidence was otherwise admissible under proffered the rules of evidence. much of the evidence Clearly,' sought motive, introduced more than demonstrated mere and we are not to that reasonable doubt the district court’s say prepared beyond little, had if error likelihood of the determination any, jmy’s altering Marsh that committed murder. See California, Chapman 18, 23-24, (1967). 17 L. Ed. 2d Ct. 824 87 S. Upon remand, the district must of court consider the carefully relevancy each evidence to avoid Marsh’s “piece” challenged prejudicing his of defense. present theoiy right We conclude a new trial must be ordered for the crimes of cap- ital murder and arson. aggravated 21-4624(e) OF K.S.A.

CONSTITUTIONALITY trial, the court’s of Marsh’s district At jury penalty phase of K.S.A. 21- forms followed instructions verdict language 4624(e) if the death sentence found jury aggravating by requiring circumstances. were not circumstances outweighed by mitigating reads: statute governing “If, vote, the doubt that one or unanimous finds reasonable jury beyond by in K.S.A.21-4625 and amend- more of the circumstances enumerated aggravating and, further, that circum- thereto the existence such ments exist aggravating not circumstances which are found to stances is any outweighed by mitigating death; otherwise, exist, defendant shall be sentenced to the defendant shall 21-4624(e). as law.” K.S.A. be sentenced provided Marsh’s of this was directed Under provision, authority jury i.e., a tie must the State. In the event equipoise, go that the balance of circum- determination any jury’s the death stances and circumstances weighed equal, mitigating would be penalty required. we decided State

Since Marsh’s sentencing Kley proceeding, Kan. 40 P.3d pas,

In we first held that the K.S.A. Kleypas, weighing equation 21-4624(e) as written unconstitutional under Eighth We down Fourteenth Amendments. avoided the statute striking its face it to mean unconstitutional on only construing op- i.e., said, what circumstances it require aggravating posite Kan. circumstances. 272 45-48. outweigh Syl. ¶ ¶ mitigating This us to vacate death sentence and reasoning Kleypas’ compelled remand the reconsideration of the death under case for penalty on the 272 Kan. instructions Syl. weighing equation. proper 49. ¶ 21-4624(e) after the detеrmined K.S.A. Kleypas, majority Amendments,

as written violated and Fourteenth it Eighth added: decision not that we invalidate K.S.A. 21-4624 or the death “Our does require 21-4624(e) face, itself. We not find K.S.A. to be unconstitutional on its do

penalty rather, we find but mandates weighing equation impermissibly that the when finds circumstances are jury Kan. at 1016. equipoise.” “The intent in the death act is obvious. K.S.A. 21- legislative passing penalty for a death scheme which a of death sentence is provides sentencing offenses. for certain imposed By simply invalidating equation weighing 21-4624(e) that if K.S.A. to finds a reasonable construing provide juiy beyond or doubt that one more of the circumstances enumerated K.S.A. and, further, 21-4625 that such exists circumstance or circumstances exist, the circumstance found to defendant shall be sen- outweigh any mitigating death, tenced to the intent of the is carried out in a constitutional legislature construed, manner. So we hold K.S.A. 21-4624 does not violate the Eighth Amendment cruel and unusual re- Our against punishment. prohibition holding that this case for be remanded to reconsider of the quires jury imposition death Kan. at 1018. penally.”

Here, notes, concedes, Marsh and the State correctly Kley- us to vacate Marsh’s death sentence and remand for pas requires reconsideration of the death under instructions on penalty proper Marsh makes the further how- ‍‌‌‌​‌​‌​‌‌‌‌​​​‌‌‌​​​‌​​​‌​‌‌‌‌‌‌‌​‌​​‌​​​​‌‌​​​‍equation. weighing argument, ever, 21-4624(e) that K.S.A. is unconstitutional on its face and that of our decision that saved statute portion Kleypas through construction must overruled. judicial We agree. law,

After a discussion of case applicable Kleypas majority 21-4624(e) summarized K.S.A. did as written not succinctly why with the and Fourteenth Amendments: comport Eighth “The cannot mandate death sentence for of murder. legislature any category limits, is limited to who is within constitutional legislature defining eligible, receive the It is for the within penalty. jury, permissible guidelines, will determine who live and will die. is not who The issue whether the penalty death is cruel se and unusual Furman [o. per punishment. 238] Georgia, did not that the death hold was cruel and unusual se penalty per punishment issue, court, under the Amendment. Here the as that before the Furman Eighth is whether will used to select which defendant receive the irrevocable process of death with the basic of human at the core penalty ‘comports concept dignity Amendment.’ 428 U.S. at 183. [v. [Eighth] Gregg Georgia,] 21-4624(e) “Is the in K.S.A. to ensure standard equation weighing unique that the of death it for Does hurdle justified? provide higher clear than area law? other of criminal Does it allow the prosecution jury its ‘reasonеd moral to the We con- circumstances? express response’ clude it Nor does not. does it with the fundamental comport respect humanity Last, that a Amendment. fundamental fairness ‘tie Eighth underlying requires or We to the defendant’ when life death is at issue. see no way goes 21-4624(e), in K.S.A. which that in doubtful cases the weighing equation provides death, the and Four- is under must return a sentence of permissible Eighth jury 272 at 1015-16. Amendments.” Kan. teenth dissent, the Davis holding majority’s disagreed with Justice 21-4624(e) was as written in K.S.A. that the equation weighing 1125. Chief McFarland 272 Kan. at unconstitutional. joined Justice Abbott, dissent, concurred in the and separately, writing Justice 272 at 1136. Davis. Kan. with Justice decided, there have been no Since persuasive Kleypas of to a resolution or Fourteenth Amendment cases helpful Eighth Arizona, the facial Although Ring constitutionality questions. (2002), Ed. 122 S. Ct. overruled U.S. 153 L. 2d Arizona, 2d 110 S. Ct. Walton 111 L. Ed. the (1990), had relied which been Kleypas majority, i.e., law, or a of whether a it did so on distinct jury point only and miti- the on must make findings required judge circumstances. gating and Nuss nevertheless

In their dissents Davis today, Justices 21-4624(e) K.S.A. as written. revisit They, constitutionality McFarland, will first that Chief equipoise joined argue Justice be rare. We cannot know this. Walton and Second, that focus on cases predate analyze they these decisions mean distinct asserting statutory language, an defendants Constitution only guarantees capital opportunity cases, ob- These have evidence considered by jury. do not control. viously, that we on our should rely

Finally, colleagues protest dissenting Blackmun’s Walton dissent to conclude that a in language Justice has of the United States Court majority already implicitly is before us constitutional. decided equipoise provision stated, failed to in draw Kleypas; position majority Simply Six, Lockett, it. It still and Larson voted Allegrucci, against Justices we reason. do not believe fails to draw a Although majority good further extensive restatement useful served by purpose dissent, feel we rationales of Kleypas majority opposing States that a United compelled re-emphasize majority facial or decided the Court has never addressed squarely us. This before remains constitutionality provision equipoise true, matter no how lower federal courts or other state courts have Walton. The Arizona statute issue interpreted ruling and, that case was worded Nuss acknowl- differently; Justice White’s decision neither used the word edges, plurality Justice nor referred to situations which “equipoise” specifically aggra- vating reconsideration, are balancе. After full we mitigators reliance on Blackmun’s Walton dissent and continue reject Justice to adhere to the Kleypas majority’s reasoning holding 21-4624(e) K.S.A. as written is unconstitutional under the Eighth and Fourteenth Amendments.

This us to the next issue: whether con- brings Kleypas properly strued statute to reverse effect of under the equipoise As Davis weighing equation. recently emphasized, Justice “ construction, ‘it is a fundamental rule of all to which other rules are statutory subordinate, that the intent of the if that intent can be ascer legislature governs tained. is [Citation omitted.] to have its intent legislature presumed expressed the of the scheme it enacted. When a statute is through language statutory plain court must effect to the intention of the unambiguous, as give legislature rather than what the determine law should or should not be. expressed, [Citation Stated another a when statute is way, omitted.] plain unambiguous, ap courts will not to the as intent it and not pellate behind will speculate legislative a read such statute as to so add not in found the statute. something readily [Ci ” Inc., tation ex State rel. Graeber v. omitted.]’ Marion 276 Kan. Landfill, County 328, 339, (2003) Killman, 33, 76 P.3d 1000 In re 264 Kan. (quoting Marriage of 42-43, (1998). 955 P.2d 1228 We also are mindful of additional canons of statutory interpre- tation related to constitutional challenges: “The of a is all statute doubts must be constitutionality resolved presumed, down, favor of its and before the statute be stricken it must validity, may clearly the statute violates constitution. it is appear constitutionality, determining it, the court’s to a under statute attack rather than defeat and if there duty uphold valid, is reasonable construe to the statute as that should constitutionally way be done. Statutes are not stricken down unless the infringement superior law is clear a reasonable doubt. v. 270 beyond [Citation State omitted.]” Engles, 531, 530, Kan. 17 355 P.3d statute void on its face when “[A] be constitutional limited apparently may in such construed a as to its way uphold constitutionality by reading necessary into the statute. This has often been done when it clear judicial is requirements 538 State v. will out intent of the that such an legislature. interpretation carry (1976); Bet’, 64, 70, v. Kan. 547 P.2d 760 State ‘The 219

Motion Picture Entitled 153, 434 Hart, (1972); Gunzelman, 200 Kan. 705 State 210 Kan. P.2d ’ ” (1967).” at 1017. P.2d 999 Kan. Kleypas, that the we held uncon- these two canons Kleypas, Applying 21-4624(e) could be con- in K.S.A. stitutional weighing equation to enact a strued out the intent to constitutional carry legislature’s at 1018. This statute. Kan. commonly approach doctrine” or scholars as “avoidance referred by legal “rule doubt.” of constitutional Court, the rule of

As articulated the United States Supreme Court not strike doubt is will сonstitutional down construed, can as unconstitutional if statute statute con with the will of with manner consistent Congress, comport construction was limitations. This rule constitutional stitutional States, in Almendarez-Torres United described follows (1998): Ed. S. Ct. 1219 140 L. 2d “ we ‘This canon is followed out which assume respect Congress, legislates in the limitations.’ The doctrine seeks [Citations omitted.] constitutional light branches to minimize between the part disagreement by preserving congres- It is enactments that otherwise founder on constitutional objections. sional might that friction power not'designed aggravate creating (through prece- intended, dent) those fear of a con- statutes foreign Congress simply through that, Thus, invoke will those who stitutional difficulty evaporate. upon analysis, statute the doctrine must believe the alternative is a serious likelihood that the will be will the doctrine serve its basic be] held unconstitutional. then Only [to reflect, distort, set of rather than democratic function of statutes maintaining reasons, have choices that elected made. For similar policy representatives after, two constructions and not the statute must be to susceptible genuinely before, that are then is the construction its unraveled. Only complexities statutory ‘fair’ avoids the constitutional a one.” question short,

In the United States Court is to exercise willing in a manner to save a its to statutes constitutional construe power However, the than strike it down. both enactment rather legislative States Court this court have United acknowledged is limited. the to construe constitutional away infirmity power “ to constitutional ‘Statutes should be construed avoid questions, not the canon is a license for but this judiciary interpretative

539 ” Salinas United rewrite enacted language legislature.’ States, 52, 59-60, 139 352, 118 (1997). L. Ed. 2d S. 469 Ct. “We cannot of construction ‘to statutory press point disingen even a United uous evasion’ to avoid constitutional question.” Locke, 84, 96, States 64, 471 U.S. 85 L. Ed. 2d S. 105 Ct. 1785 (1985). The maxim cannot where the statute is itself unam apply United States v. Oakland Cannabis Buyers’ Cooperative, biguous. 532 494, 483, 722, (2001). 149 L. Ed. 2d 121 S. Ct. 1711

Our formulation of the avoidance doctrine is similar to of Durrant, State v. 522, the federal courts. 244 Kan. (1989),

P.2d 1174 we stated: “This court not has the but also the only construe statute authority, duty, such a manner it is constitutional if the same can be done within the apparent intent the statute. To this legislature passing accomplish purpose court read the into the may statute.” necessary judicial requirements These cases make that the avoidance doctrine plain applied when statute is or over- appropriately only ambiguous, vague, broad. The doctrine is not an available tool of construc- statutory tion if its would result an application rewriting unambiguous statute. The court’s function is to not rewrite interpret legislation, Beard, it. State v. Patrick (1966); 197 Kan. P.2d v. Haskell 105 Kan. 181 Pac. County,

It is to us that failed to the fundamental Kleypas apparent apply rule of construction as stated in State ex reí Graeber statutory before of the canons that the avoid- moving application support Indeed, ance doctrine. the fundamental rule construc- statutory tion was not even noted in the discussion and resolution majority’s issue. equipoise

Moreover, for court’s rationale Kleypas rewriting 21-4624(e) K.S.A. rested that the entirely upon premise leg- islature intended statute that was consti- pass tutional. Kan. at 1018. This of whether begged question succeeded in so. It also an constituted legislature actually doing insufficient avoidance doctrine justification application to an statute. Such construction other name unambiguous by any Beard, is a of See 197 Kan. usurpation legislative prerogative. LaValle, N.E. 2d 341 278; 3 N.Y. 3d see also People (state’s rewrite unconstitutional death (2004) court cannot highest fill left it to void lacks by legislative power penalty provision; elimr of invalid ination provision). Davis in his dissent. This was not lost Kleypas upon point Justice was, is, and still

His persuasive: . explanation in the by “The reverses the adopted legislature majority weighing equation 21-4624(e) be intent of the is to carried with the idea the legislature K.S.A. based the lan- manner. There is no on express out in a constitutional question, of the a death of the that it intended to mandate imposition guage legislature, such circumstances is not sentence where the existence of outweighed circumstances found to exist. The by question brought any mitigating precise rec- attention the the who by attorney the of legislature testimony general, the statute for the circumstances ommended that outweigh provide circumstances before death sentence The may the imposed. leg- our islature suggestion attorney general adopted rejected present statute. however, with its own “The the express language language majority, replaces intent the conclusion that this new carries out the based its language manner. Because the new mandated a constitutional language legislature intent and the the to the adopted majority contrary expressed language 21-4624(e), invades the I believe the K.S.A. majority province legislature intent, face of a not clearly legislative majority legislature. expressed strikes this clear as unconstitutional but adopts only language language exactly of what the stated. If the statute offends the legislature opposite language Constitution, solution, in let is to so hold and the appropriate judicial my opinion, with 272 Kan. resolve the matter consistent the court’s opinion.” legislature at 1124-25. Davis’ and conclusion that the We with agree reasoning Justice erred with majority substituting weighing equation Kleypas effect the equation provided by legis- exactly opposite lature. The eviscerated the clear unam- holding legislature’s and thus intent ju- regarding overstepped biguous equipoise make it. rather than Chief diciary’sauthority interpret legislation dissent, McFarland’s which argues legislature ap- Justice (It also did not mind the interference misses the point. parently into inaction the court had removed its reads too much its when act.) Davis it incentive had exacdy right: appropriate, Justice to the identified for first limited time judicial response problem 21-4624(e) in was to hold K.S.A. unconstitutional on its Kleypas face and let take such further action as it deemed legislature proper.

This true was As the especially given legislative history. Kley- observed: pas majority 14, 1995, is “It to note that March on important attorney general analyzed

the statute and recommended in the House Committee of the Kansas Judiciary that the statute be amended to circumstances Legislature require circumstances, “Now if are outweigh ‘tie’ stating: they equal, goes state. We’re ‘tie’ . defense. . .” proposing goes Unfortunately, legislature did not follow the recommendation.” 272 at attorney Kan. 1014- general’s Kleypas, 15. Bush, In Padilla ex rel. Newman 233 v. F. 2d 564 Supp. (S.D.N.Y. 2002), the bedrock of of principle separation powers our of form was at issue and ex- tripartite government eloquently Padilla, citizen, an American held the United plained. by being States as an combatant” with associated Al at a naval Qaeda “enemy in South Carolina. He filed a habeas brig petition, relying primarily 4001(a) (2000), 18 U.S.C. which “No citizen shall upon § provides: be or otherwise detained the United States imprisoned by except an to Act of In of its motion to dis- pursuant Congress.” support miss, the Government a literal of 18 U.S.C. argued reading § 4001(a) II, 2, would conflict with Article section 1 of the clause Constitution, which makes the President of the United States “Commander Chief of the of the United States.” Army Navy the court stated: rejecting government’s argument, “The that because the statute to on the government suggests reading impinge combatants, President’s Article II detention of creates powers, including enemy that the statute be found danger unconstitutional as to the might applied present case, a court should not read statute so as to cover detention of com enemy batants, the canon that a should read as to statute be so avoid constitu applying See, States, 848, 857, tional 529 120 difficulty. United U.S. S. Ct. e.g., Jones 1904, 146 (2000) L. Ed. 2d 902 ‘the that “where a statute (citing guiding principle constructions, of is two of one which and doubtful constitu susceptible grave avoided, tional arise and other which such are questions our questions ’) is to the latter.” United ex States rel. General v. duty adopt (quoting Attorney Co., 366, 408, 527, (1909)). Delaware A Hudson 29 L. S. Ct. 53 Ed. 836 ‘ “However, this doctrine of avoidance constitutional “has no application ’ Rucker, 125, 122 1230, absence HUD v. 535 U.S. S. Ct. statutory ambiguity.” (2002) 1235, v. Oakland Cannabis United States 152 L. Ed. 2d (quoting 483, 494, Ed. 2d 121 S. Ct. L. 532 U.S. Buyers’ Cooperative, ‘ Rucker, (2001)). “while out purporting other pointed Any approach, restraint, vested would trench an exercise in legislative powers judicial ’ I, United Id. 1235-36 Art. of the Constitution." (quoting in Congress by § (1985)). 680, 105 Albertini, Ed. 2d 536 S. Ct. 86 L. States is, an statute if an into simply That a court read unambiguous ambiguity statute, of that an adverse decision as the constitutionality avoiding

purpose those the court would be thereby pow exercising legislative powers usurping the statute ers. There is no here. encompasses ambiguity plain language Therefore, avoidance the constitutional all detentions of United States citizens. is 233 F. 2d at 597. affect how the statute read.” canon cannot Supp. 21-4624(e) face unconstitutional on its Our that K.S.A. holding that of that we overrule KLeypas portion presumptively requires of the doc- the statute avoidance through application upholding that left for our consideration is trine. The only contrary argument us of decisis should from so. the doctrine stare prevent doing Services, Inc., 336, In Samsel v. Wheeler Transport 246 Kan. Beck, on Bair v. overruled other grounds 356, 541(1990), 789 P.2d 824, (1991), P.2d we stated: 248 Kan. 811 1176 that, of once a of law has “It is under doctrine stare decisis point recognized court, law of will be followed been established by point generally by and all of rank in cases where the same same court courts lower legal subsequent and is decisis conti- issue raised. Stare system-wide stability operates promote the survival of decisions have been by by previously approved nuity ensuring this court. . . . The of stare decisis ensures and stability continuity— application review. adherence to of judicial demonstrating continuing legitimacy Judiciаl ensures that all branches of constitutional government, including precedent branch, are law. bound by judicial of resort is that a ". . . The American doctrine as courts last general applied but followthe rule law is not bound its own will of court inexorably precedents cases, it unless convinced that the rule was which has established earlier clearly is not because of conditions erroneous or sound changing longer originally more than harm will come from good by departing precedent.” 2003 This consistent with the United States Court’s is Texas, 558, 508, decision in Lawrence v. 539 156 L. Ed. 2d U.S. 525, (2003), in its 123 Ct. 2472 which the Court overruled 1986 S. Hardwick, 140, 186, in Bowers v. 478 92 L. Ed. 2d U.S. decision (1986). Ct. 2841 stated: 106 S. Court

543 “The doctrine of stare decisis is essential to the to the accorded respect judg- not, however, of ments the Court and of the law. It is an inexorable stability Tennessee, 808, 828, 720, command. 501 U.S. 115 L. Ct. Payne Ed.2d 111 S. (1991) (‘Stare command; rather, 2597 an decisis not it inexorable “is a principle decision, and not a mechanical formula of adherence the latest policy [how- ever recent and when such adherence collision involves with questionable, prior sounder, doctrine more in its verified ex- embracing scope, intrinsically ’ Hallock, 106, 119, 604, 309 U.S. 84 L. 60 (quoting Ed. perience]” Helvering (1940)).” Ct. S. 539 U.S. at 577. 584, that, 536 U.S. the Court observed Similarly, Ring, ‘ “the doctrine of stare decisis is of im fundamental “[although law[,]” to the rule . . . are not sac [o]ur portance precedents Union, rosanct.’ 164, Patterson v. McLean Credit 491 U.S. (1989), Welch v. Texas and Public (quoting Dept. Highways 483 U.S. have overruled de Transp., ‘[W]e prior cisions where the so has been necessity propriety doing established.’ 491 172.” the United States Court has particular, frequently that stare decisis has less force consti-

emphasized persuasive tutional As Scalia stated in Vieth v. adjudication. Jubelirer, Justice 305-06, L. Ed 124 S. 2d Ct. (2004), which overturned re- precedent concerning congressional districting: “Considerations of stare decisis do not us to allow Bandemer to stand. compel Constitution, That case involved an and the claims of interpretation stare field, decisis are at their weakest that where our mistakes cannot be corrected Tennessee, 808, 828, 2697, 115 See v. 501

by Congress. Payne U.S. 111 S. L. Ct. (1991). Ed. 720 2d are weak in Bandemer They because the doubly majority’s to enunciate the discernible and inability standard that it judicially manageable (or exist) existed did think did not not thought need for reconsid presaged eration in of And are weak is light because it subsequent experience. they triply hard to how action taken in reliance imagine Bandemer could conceiv lawsuits, of ably which is not the sort of except bringing primаry frustrated — is conduct that relevant. “While dowe not overturn one of own ‘when our lightly holdings, governing “ reasoned, decisions are unworkable or are ‘this Court never felt has con- badly ” Id., 827, strained to follow at 111 S. Ct. 2597 Smith v. precedent.’ (quoting 649, 665, 757, (1944)). 321 U.S. 64 S. Ct. 88 L. Ed. 2d 987 Allwright, Eighteen of have us is that Bandemer inca- years essentially pointless litigation persuaded case, of We would overrule and therefore de- pable principled application.

544 See also Harris v. claims.” these political cline adjudicate gerrymandering (2002) 581, 524, States, 545, 2406 122 S. Ct. 153 L. Ed. 2d 536 U.S. Untied (when (Thomas, decided a constitutional ques- court “has wrongly J., dissenting) weakest”; tion, of rule also is at its relative stare decisis recency force of value). weakens precedential ar- Furthermore, to “full-dress a rule not subjected previously it more before is is examined closely applied gument” rightly Babalu Inc. the Lukumi second time. See Church City Aye, of Hialeah, 520, 571, 472, L. Ed. 113 S. Ct. U.S. 2d of of with sua be the case our Such should sponte application we should not doctrine in the avoidance casually Although KLeypas. we from neither should discard shy away admitting precedent, “ are or are rea- decisions unworkable 'when badly governing ” Dixon, U.S. 125 L. Ed. 2d States v. soned.’ United Tennessee, (1993) 556, 113 S. Ct. 2849 (citing Payne 827). focuses on factors listed The Chief dissent by Justice Justice’s Pa. v. Parenthood Southeastern O’Connor Planned Casey, of (1992), L. 112 S. Ct. 2791 120 Ed. 2d “prudential of to test the considerations consistency designed pragmatic law, of with the ideal of the rule and to decision overruling prior costs of reaffirming overruling prior respective gauge 854-55. But O’Connor labeled case.” 505 U.S. at explicitly Justice of exhaustive list such considerations Any necessarily “examples.” its whether the now earlier would also include court recognizes incorrect, unwise, to the roles or did violence assigned ruling various branches government. We conclude the second KLeypas equi- holding —that avoidance be rescued could poise provision application doctrine of stare decisis. not under the doctrine —is salvageable is is overruled. Stare decisis That KLeypas designed holding im- well case law from or settled and sound precipitous protect to insulate a con- It is not questionable pulsive designed changes. and, for, aban- from when called stitutional rule thoughtful critique true in a situation like the one This donment. especially facing was not here. of the avoidance doctrine us fully KLeypas’application K.S.A. Its vetted. It is untested. rewriting young previously 21-4624(e) erroneous; was not aas constitutional ad- only clearly it еncroached of the judication, power legislature. Our decision to confine the of the avoidance today application doctrine to circumstances of appropriate recognizes separation and the constitutional limitations of review and powers judicial looks to the to resolve the issue of whether rightfully legislature the statute should be rewritten to constitutional muster. This pass is the not ours. This decision does more in the legislature’s job, run to of enhance long preserve separation powers, respect review, and further in the law than all judicial predictability indiscriminate adherence to stare decisis can ever to do. hope

HARD 40 SENTENCE — SUFFICIENCY Marsh contends there was insufficient evidence to support district court’s of circumstances not out- finding aggravating circumstances. See K.S.A. 2003 21- weighed by mitigating Supp. 4635. Where the of the evidence is for es- sufficiency challenged the existence of an circumstance a hard tablishing aggravating the standard of whether, review to be proceeding, applied evidence, after all the viewed in the most favorable reviewing light State, to the a rational factfinder could have found the existence circumstances of the evi- preponderance dence. the hard the district court found the same imposing ag- as did the (1) the death

gravators jury imposing penalty: defendant or killed or risk created knowingly purposely great (2) death to more than one hei- person; killing especially nous, atrocious, cruel; (3) or was committed in order killing Further, avoid or a lawful arrest or prevent prosecution. ap- as K.S.A. 21- plying weighing equation required Supp. 4635, the district stated: judge factors, “I believe that these each one wouldn’t individuallythat you need to take the three them a whole combinedthat

necessarily one those three are circumstances in outweigh any this case sufficient the death of which would the max- regarding [Marry], require imposition added.) imum penalty.” (Emphasis 546 on is a new trial entitled to have concluded Marsh

Because we murder, or a he of knowingly purposely finding charge is to more than one risk of death killed or created a person great Likewise, to failure admit evidence the district court’s problematic. the find- influence involvement could of Pusch’s arguably possible heinous, atrocious, or cruel. especially Many’s killing ing dis- exist, however, sufficient evidence There does support Marsh murder was committed trict court’s Many’s finding In his confession a arrest or or lawful to avoid prosecution. prevent that, the Pusch after he entered indicated Marsh to investigators, extortion; residence, but not to out he decided Many’s carry a and he her. The district him into arrival threw shot. early panic, ar- Marsh shot to avoid lawful could infer court Marry reasonably the miti- or for rest Conversely, burglary. aggravated prosecution character Marsh consisted several evidence gating presented character at the time had who testified Marsh’s witnesses they known him. statement, conclude, court’s

We based the district mit- was not one of the circumstances outweighed by of the hard The district court’s circumstances. imposition igating 141, 22 State v. 271 Kan. 40 sentence is See Lopez, upheld. (2001) the district court’s P.3d 1040 weighing aggravat- (stating and is within its sound discretion circumstances ing discretion.) absent an abuse will not be disturbed on appeal SENTENCE —CONSTITUTIONALITY HARD 40 hard scheme is uncon the Kansas Marsh sentencing argues 21-4635 not K.S.A. 2003 does stitutional because require Supp. a circumstances be submitted jury proved 270 Kan. doubt. He contends State reasonable Conley, beyond (2001), (2000), should 11 P.3d 1147 cert. denied be overruled. was not made to district court.

This Normally, argument time for the first are not asserted constitutional properly grounds 823, 837, Shears, 260 Kan. this court review. State before (1996). However, three we have 925 P.2d 1136 long recognized (1) claim involves rule: where the asserted to this newly exceptions of law on or admitted facts and only question arising proved case; (2) determinative of the where consideration of the claim to serve the ends of or to the denial of necessary justice prevent (3) fundamental where the district court is for the rights; right Commissioners, reason. See Pierce v. Board wrong County 74, 80-81, Here, Kan. 434 P.2d 858 the issue raised by Marsh we address of law. requires only question v. New 147 L. Ed. 2d Apprendi Jersey, (2000), 120 S. Ct. 2348 the United States Court held “[ojther conviction, than a the fact of fact that increases prior a for crime maximum beyond prescribed statutory must be submitted and a reasonable jury, proved beyond 530 doubt.” U.S. at 490. In we held the hard 40 Conley, sentencing maximum, scheme did not increase the but rather statutory simply set a minimum. See 270 Kan. at 33-34. We also concluded statutory our consistent was with the United States Court’s holding Supreme McMillan v. in 88-89, 79, 477 U.S. pronouncement Pennsylvania, 67, McMillan, (1986). 91 L. Ed. 2d 106 S. Ct. 2411 In the Court held a factors that raises the judicial finding only minimum sentence that the district court was may imposed by 477 U.S. at 89. permissible.

Marsh the United States Court’s argues ruling Ring Arizona, 584, 536 U.S. us to reverse our requires holding In State v. We 274 Kan. Conley. 57 P.3d disagree. Boldridge, (2002), 8 this court addressed a constitutional to the hard challenge scheme under K.S.A. 2001 21-4635. The court sentencing Supp. noted the defendant’s on reliance but found no reason to alter Ring in State v. 96, 49 its and 274 Kan. P.3d reasoning Douglas, holdings (2002), State 273 Kan. 41 P.3d Conley, Boorigie, (2002). 274 Kan. at 812. Boldridge, Marsh contends we misread McMillan Additionally, deciding This not a is novel We have Conley. de- argument. consistently clined to overrule and have that our Conley rejected argument reliance on McMillan was See State v. Albright, misplaced. 811, 826-27, Kan. 46 P.3d 1167 The decision in Harris v. States, United 153 L. Ed. 2d 122 S. Ct. 2406 (2002), decided the same reaffirms the day Ring, continuing Harris, of McMillan. considered Court

validity minimum sen- a defendant’s held that but Apprendi increasing was brandished tence based weapon finding judge’s Harris, 536 the Fifth or Sixth Amendments. not violate did 568. Con- reasons, Marsh’s we

For the argument reject foregoing be overruled. decided and should ley wrongly

CONCLUSION face, 21-4624(e) on its K.S.A. unconstitutional We conclude on issues moot thus dependent guilt penalty phase rendering considered all We have of the death carefully penalty. imposition Marsh; we hold those not raised of the issues of trial error reversible error insufficient to constitute this discussed opinion in this case. bur- and sentences affirm Marsh’s convictions

We aggravated and re- we reverse murder Many; glaiy premeditated convictions for the ‍‌‌‌​‌​‌​‌‌‌‌​​​‌‌‌​​​‌​​​‌​‌‌‌‌‌‌‌​‌​​‌​​​​‌‌​​​‍murder new trial Marsh’s mand for M.P. and arson. aggravated I from the dissent

Davis, majority’s J., dissenting: respectfully 21-4624(e) is in K.S.A. uncon- that the holding weighing equation 21-4624(e) was con- on its face. In K.S.A. stitutional my opinion, re- was the Kansas stitutional when it by passed Legislature constitutional mains today. the Kansas death is unconsti-

The holds that majority penalty to the United its face under the Amendment tutional on Eighth to the the States Constitution. offending pro- According majority, found in K.S.A. 21- lies in the vision following weighing equation 4624(e): vote, “If, finds a reasonable doubt that one or unanimous beyond by jury 21-4625 and enumerated K.S.A. amend- more of the circumstances aggravating and, further, circum- that the existence such ments thereto exist aggravating circumstances which are to

stances is not by mitigating outweighed found death; otherwise, exist, shall to defendant shall the defendant be sentenced added.) law.” be sentenced as (Emphasis provided (2001), In State v. Kleypas, 272 Kan. 40 P.3d 139 the ma- was unconstitutional held that the above weighing equation jority but the death attempted salvage penalty by rewriting equa- tion that the circumstances must language provide aggravating circumstances im- before death outweigh mitigating may .the The holds that the posed. today majority attempt Kleypas erroneous and that the entire death is unconstitutional un- penalty der the Amendment. Eighth case,

The in this voids the entire death law majority, penalty because in the event that a find would extremely unlikely jury circumstance or circumstances exactly equal circumstances, death must be mitigating imposed. majority claims that in such an event a tie must to the defendant. unlikely go to the because under the According majority, weighing equation State, the Kansas the tie to the adopted by Legislature goes entire death is unconstitutional. penalty

I with the conclusion that in order for the death begin majority’s Kansas, to be constitutional in a tie in the cir- cumstances and circumstances must go defendant under the Amendment. I with the that the Eighth agree majority Kansas chose the but Legislature consciously weighing equation that the used is unconstitutional under strongly disagree language I Amendment. with the Eighth may personally disagree legis- lature’s decision that a tie to the State but I cannot policy goes conclude that its enactment is unconstitutional because of that lan- unless the Constitution, United States guage interpreted by Court, United States such a An conclusion. anal- supports of the United States Court as well as ysis jurisprudence, other decisions this does not such a con- addressing point, support and, fact, clusion conclusion. supports opposite aAs I think it is to stress prelude my analysis, important just how it is that the “tie” envisioned would unlikely majority First, ever occur. before the is even weighing equation implicated, it must be a reasonable doubt that the defendant proven beyond Thus, of the crime of murder. for the defendant to guilty even be for the death must find the existence eligible penalty, juiy of one or more factors that make the murder com- following mitted (1) more serious then even murder: the inten- first-degree tional and of in the commission of premeditated any killing person of with intent or holding kidnapping aggravated

kidnapping kill- ransom; (2) the intentional such premeditated person (3) the in- or to contract of agreement; any person pursuant ing an inmate or of tentional any killing person premeditated of the victim (4) the intentional and killing premeditated prisoner; (5) the criminal or criminal of sodomy; aggravated sodomy, rape, officer; enforcement of a law intentional killing premeditated of more than one (6) the intentional and per- killing premeditated or more acts transaction or in two of the same act or as a son part a com- or of transactions connected or constituting parts together conduct; (7) intentional and or or course of mon scheme pre- in the commission under the of 14 of a child meditated age killing where such crime was or of aggravаted kidnapping kidnapping or offense with with the intent to commit sex committed to a sex with that the child commit or submit the child or intent See K.S.A. 21-3439. offense. murder, he or convicted of

Once the defendant has been However, still not be the death sentence she is death may eligible. an additional set of without a consideration of imposed and a circumstances. circumstances consideration mitigating 21-4625, set forth in K.S.A. The circumstances are follows: “(1) which die convicted of a defendant The defendant was felony previously harm, or death on another. dismemberment

inflicted great bodily disfigurement, “(2) or created risk of death defendant or killed The purposely great knowingly than one to more person.

“(3) or another for the crime for the defendant’s self The defendant committed or value. monetary other thing money purpose receiving “(4) to commit the crime. The defendant authorized or another employed person “(5) to avoid or lawful committed the crime order The defendant prevent arrest or prosecution. heinous,

“(6) or crime in committed the an atrocious defendant especially manner. cruel

“(7) crime a sentence of The defendant committed the serving imprison- while ment on conviction a felony.

“(8) in, killed The victim was while or because of the victim’s engaging perform- of, ance or the victim’s duties as a witness in a criminal performance prospective proceeding.” circumstances,

These of all eight categories extremely serious, a defendant for death after the qualify only prosecution has existence of one or more of them a reason- proved beyond However, able doubt. still not be without con- may imposed sideration of circumstances. mitigating

A list nonexclusive of that a circumstances defendant mitigating to the are set K.S.A. out 21-4626: may present jury Supp. “(1) has The defendant no of criminal significant history prior activity. “(2) The crime was committed while the defendant was under the influence of extreme emotional mental or disturbance.

“(3) The a victim was in or consented to the defendant’s conduct. participant “(4) The was an defendant crime another committed accomplice by person, and the defendant’s was minor. participation relatively “(5) The acted defendant under extreme distress or under the substantial domi- nation of another person.

“(6) The defendant to defendant’s capacity appreciate criminality conduct or to conform defendant’s conduct to the of law was requirements substantially impaired.

“(7) The of the defendant at of the the time crime. age “(8) crime, At the time of the defendant was from post-traumatic suffering stress caused violence or abuse the victim.” syndrome above, As stated these circumstances are nonexclusive. mitigating Thus, the is instructed that circumstances it juiy mitigating may consider include also term of is sufficient “[a] imprisonment to defend and from the defendant” as safety protect people’s character, well as other the defendant’s “any aspect background record, or other the offense which was aspect presented in either the or which find serve as a you may guilt phase basis for a than PIK sentence less death.” See Crim. imposing (2003 56.00-D Supp.).

Note the serious nature circumstances again mitigating and the there on fact that is no limit circumstances that a defendant to the Also note that defendant may present jury. these reasonable circumstances

is not beyond required prove doubt. who was to that a defendant Mils witness assume

For example, trial cir- criminal him in his (aggravating against upcoming testify cumstance). defendant old further that the Assume years child, home, time, came a broken abused as from circumstances). criminal has no history (mitigating significant past has evidence of the Once presented prosecution miti- circumstance(s) the defendant has as much and presented now the to he wishes to the it is evidence as jury jury, up gating law, sentence. Under our whether to the death determine impose the circum- circumstances if the aggravating outweigh mitigating stance^) If circumstances death be cannot imposed. aggravating death is Before delib- circumstances imposed. mitigating outweigh erations, the is instructed similar to the juiy following: a that

1. If the finds reasonable doubt jury unanimously beyond exists, the factor out- the factor and that aggravating aggravating exist, the sentence is the circumstances found weighs mitigating death. (cid:127) a doubt that 2. If the finds reasonable jury unanimously beyond exists, and that the circumstances the factor mitigating aggravating circumstance, the a sen- found to exist aggravating prison outweigh the tence is sentence. the a doubt that

3. If finds reasonable jury unanimously beyond exists, factor that the factor is not the and aggravating aggravating (this circumstances found to exist by outweighed any mitigating include where factor and would situations aggravating mitigating the is circumstances are defendant sentenced to death. equal), Each of die then decides whether the member jury aggravating a the factor has been reasonable doubt. Unless jury beyond proven at concludes that least one factor has been unanimously aggravating has death be Once an factor cannot proven, imposed. aggravating what that been each decides juror weight give aggra- proven, the factors. factor and then what to give vating weight mitigating the factor and the factors The total weight aggravating mitigating death, the then In order to each member of are compared. impose the must find that the factor is not by jury aggravating outweighed one the that factors. If even member of finds the jury mitigating factors, factor is the then the aggravating outweighed by mitigating Further, above, defendant cannot be sentenced to death. as noted is not limited on what evidence it consider. can jury mitigating Thus, if a even our determines that the juror example mitigating i.e., defendant, circumstances offered he was years home, time, child, old at the came from broken was abused as and has no criminal are insufficient to significant history, outweigh factor, still not have does to vote juror aggravating if there other is circumstance or circumstances which mind of the circumstances juror’s pushes weight mitigating past Such circumstance. circumstances can include the aggravating that life in is a or sufficient sentence juror’s feeling prison simply that the defendant does not deserve to die.

As can seen the above is example, weighing process not circum- just counting process aggravating mitigating is a stances. It total process assessing intangibles: looking of the factors it total weight comparing is circumstances. It for this reason that it weight mitigating will conclude cir- highly unlikely jury cumstances are circumstances Either exactly equal. the circumstances will the circum- mitigating outweigh stances a life will or and sentence the cir- imposed will cumstances the circumstances and death outweigh mitigating will be imposed.

In the event that the does find the extremely unlikely jury ag- circumstances and the to be circumstances gravating mitigating written, 21-4624(e), K.S.A. that does mandate the exactly equal, However, sentence be death. a careful examination of the United States Court’s that death shows penalty jurisprudence this result does not violate the Amendment. Eighth

There no the sev- that Amendment question Eighth imposes First, eral with states requirements regard capital sentencing. are to limit and channel the discretion of and required juries judges “so as ac- to minimize the risk and arbitrary wholly capricious 189, 859, 153, v. tion.” 428 U.S. 49 L. 2d 96 Ed. Gregg Georgia, (1976). S. Ct. 2909 for a order scheme capital sentencing pass muster, it narrow the class of must constitutional per- “genuinely for and must the death sons reasonably justify penalty eligible of more severe sentence on defendant compared imposition 862, found of murder.” Zant v. to others Stephens, guilty 235, (1983). 877, 77 L. Ed. 103 S. Ct. 2733 2d el- narrows the The Kansas Death Act class Penalty persons First, it convic- two penalty ways. requires igible sim- for death rather than tion of murder penalty eligibility Second, the death to all murders. first-degree ply applying even further it narrows through weighing ag- eligibility Thus, and factors during penalty phase. gravating mitigating has limited and channeled the discretion of the Kansas Legislature risk and “so as to minimize the of wholly arbitrary juries judges action” accord with capricious Gregg Georgia. Further, even Amendment Eighth jury though requires discretion be it also sentencer be allowed guided, requires all to retain sufficient discretion to consider relevant mitigating “ evidence, so that it can ensure that ‘death is pun- appropriate ” Ohio, 586, 601, in a ishment case.’ Lockett v. 438 U.S. specific 973, (1978) 57 L. Ed. 2d 98 S. Ct. 2954 Woodson v. North (quoting Carolina, 280, 305, 428 U.S. 49 L. Ed. 2d 96 S. Ct. 2978 (1976). end, To this the sentencer cannot “be from con- precluded factor, as a of a char- defendant’s sidering, any aspect acter or record and circumstances of the offense that as a a sentence than death.” the defendant basis for less proffers Lockett, Further, 604. the sentencer be able U.S. at must effect” to evidence. this Penny Lynaugh, “give L. Ed. 2d S. Ct. 2934 it must be Again, noted that lists Kansas circumstances eight important mitigating no the number limit on of such circumstances defendant puts is instructed that it must consider give may present. jury this effect to evidence. satisfied, however, these

Once core are principles Eighth Rather, Amendment no more. Court has requires made it clear that within the above are states wide guidelines, given which latitude to these are adopt procedure through principles See v. carried out. Zant 462 U.S. 890-91 Stephens, (stating “the Constitution does not a State to stan- require adopt specific dards in its consideration jury instructing aggravating for circumstances”). added.) The mitigating (Emphasis majority that the failure of the to allow death opinion says legislature only when circumstances circum- aggravating outweigh mitigating stances is unconstitutional. statute,

In its death Kansas has chosen to follow enacting the Florida which circumstances system, provides aggravating which are then found to exist as set weighed against any mitigators Black, forth 222, 229-231, See v. 503 U.S. above.. 117 L. Stringer 367, (1992). Ed. 2d 112 S. Ct. 1130 The Court held that Supreme the Florida satisfied constitutional system requirements Proffitt Florida, 242, 913, v. (1976). 49 L. Ed. 2d 96 S. Ct. 2960

In states which stаtes,” follow the Florida i.e. system, “weighing have arisen over the questions composition weighing equa tion. The Court answered those in a series questions 299, 108 three cases: v. 494 U.S. L. Ed. 2d Blystone Pennsylvania, 255, (1990); 110 S. Ct. 1078 494 U.S. Boyde California, 316, 110 108 L. Ed. (1990); 2d S. Arizona, Ct. 1190 and Walton v. 511, 110 497 U.S. (1990), 111 L. Ed. 2d S. Ct. 3047 overruled Arizona, on other 153 L. Ed. 2d grounds Ring 122 S. Ct. 2428 was whether Blystone, question having mandatory which death where the found that weighing equation required jury circumstances circum- outweighed mitigating stances violated the Constitution. The was that this man- argument somehow “limited the discretion of con- datory penalty jury” travention of Lockett’s that a be allowed requirement capital jury to consider and effect to all relevant evidence. See give mitigating 494 U.S. at 303. Blystone, Court held that the scheme satisfied Pennsylvania First,

the Lockett for two reasons. the statute did not requirement limit the (Kansas factors that could be taken into account mitigating factors). Second, does not limit the it did not automat- mandate death conviction for certain of murder ically types (nor Kansas); rather, does it mandated the of death imposition only after a that the circumstances finding outweighed Court U.S. at 305-06. The circumstances. Supreme

mitigating in of individualized stated sentencing cap- “[t]he requirement all relevant to consider ital cases is satisfied jury by allowing Further, the Court 494 U.S. at 307. evidence.” Supreme mitigating with the form or concerned that it was not noted pro- particularly the re- so in cedure used equations long establishing weighing effect to allowed to consider that the give jury quirement satisfied, “Within the evidence is all relevant stating: mitigating cases, their our the States limits constitutional enjoy defined which those who the method traditional latitude prescribe added.) 494 U.S. at murder shall be commit punished.” (Emphasis 309. case

The next equations, Boyde concerning weighing Califor- nia, to California’s a similar with addressed weigh- regard question that the which mandated death upon jury’s finding equation, ing circumstances. circumstances mitigating outweigh aggravating in for the same reasons as Court Blystone, Boyde, In the Court the statute constitutional. found process, “ of individualized reiterated that ‘[t]he sentencing requirement all to consider relevant cases is satisfied by allowing jury ” stated that “there is no . . . evidence’ and further mitigating discretion constitutional of unfettered sentencing requirement are free to structure and consideration and States jury, shape a more rational and evidence ‘in an effort to achieve of mitigating ” 494 U.S. at 377. administration of the death penalty.’ equitable stand, therefore, that it proposition Blystone Boyde mandate death for a is not unconstitutional weighing equation consider and certain so as the is allowed to juiy upon findings, long con- to all relevant circumstances. also effect They give mitigating which mandates death firm that a equation weighing circumstances outweigh mitigating jury’s finding not, however, ad- satisfies this standard. did circumstances They whether other versions of the dress equation, specifically weighing 21-4624(e), used in K.S.A. meet this stan- equation weighing case, was left for the next dard. That question “weighing equation” Arizona, 497 639. Walton v.

Walton is to this case because of the sim- particularly important ilarities between at issue Walton and that weighing equation in K.S.A. 21-4624. The Arizona in Walton weighing equation pro- (in case, vided that the sentencer was to judge) weigh circumstances circumstances against mitigating if there were “no circumstances suf- impose Walton, substantial to call for 497 U.S. at 643- ficiently leniency.” different, Arizona, now, 44. the words used are then and Although has this to mean the same interpreted weighing equation exactly 21-4624(e): in as the one used K.S.A. Death is the unless penalty circumstances are aggravating outweighed by mitigating Gretzler, 42, 53-55, circumstances. See State v. 135 Ariz. 659 P.2d (1983); Ysea, 372, 375, (1998) State v. 191 Ariz. 956 P.2d 499 finds one or more “[i]f (stating judge aggravating 13-703[F], factors listed in the defendant is death § eligible, if the factors are not factors aggravating outweighed by mitigating 13-703[G], in death”). listed sentence is See also § resulting Walton, (Blackmun, 497 U.S. at 687 J., dissenting) (stating Arizona Court has indicated that a de- “[t]he Supreme repeatedly fendant’s evidence will be deemed substan- mitigating 'sufficiently tial to call for if the factors leniency’ only mitigating ‘outweigh’ those in aggravation”).

Further, one of the issues in Walton was the same equipoise case, faced in in now this of the question Kleypas validity Walton, under the Amendment. See weighing equation Eighth U.S. at 651-52. In order to understand the Court’s on the holding issue, it is to note that Walton reached the important Supreme Court as the result aof between the Arizona part split Supreme Court and the Ninth Circuit Court on the Appeals equipoise Ricketts, (9th 1988) (en issue. Adamson v. 865 F.2d 1011 Cir. banc), the Ninth Circuit Court of held that the Arizona Appeals death scheme was unconstitutional for the same reason penalty in this case holds the Kansas statute K.S.A. 21- majority opinion 4624(e) unconstitutional: “While the statute does it nonetheless the sentencer require balancing, deprives

of the discretion mandated the Constitution’s individualized re- sentencing This is because in where the situations quirement. mitigating balance, or, circumstances where give circumstances are circumstances, of the but still fall below the court reservation weight Thus, the less than death. from sentence the statute bars the court imposing as it can tо mandate individualized can sentencing operate preclude presumption sentence, of criminal the context and we note a death ‘[presumptions ” 865 F.2d been viewed as have traditionally constitutionally suspect.’ proceedings added.) at 1043-44. (Emphasis however, the decision of the Arizona conflicted with This ruling, Court which constitutionality summarily upheld Walton, 159 Ariz. in State v. the Arizona death scheme 571, 584-85, (1989). In resolve this 769 P.2d 1017 order to split cases, the United States Court between the two granted Walton, (“Because at 647 in Walton. See certiorari Ninth Circuit has held the States Court of for the United Appeals the reasons statute to be unconstitutional for Arizona death penalty case, in this see Adamson v. Ricketts submitted Walton [citation omitted], certiorari ... to resolve the conflict and to we granted that are of the administration settle issues generally importance penalty.”). Court of the United States addressed Walton’s The Supreme Arizona statute that the court that because the provided argument circum- the death if one or more must aggravating impose are found and tire circumstances are insufficient stances ‍‌‌‌​‌​‌​‌‌‌‌​​​‌‌‌​​​‌​​​‌​‌‌‌‌‌‌‌​‌​​‌​​​​‌‌​​​‍mitigating an unconstitutional to call for this created leniency, presumption at 651-52. The Court that death was the sentence. proper contention, this rejected stating: v. and

“Our recent decisions in Boyde [citation omitted] Blystone Pennsylvania a v. foreclose this submission. chal- Blystone rejected [citation omitted] California to a instruction based on statute jury Pennsylvania requiring imposition lenge no mit- of death if circumstances were found to exist but penalty aggravating circumstances were We out ‘[t]he pointed requirement igating present. cases is satisfied to con- individualized by allowing jury sentencing evidence,’ concluded that be- sider all relevant and omitted] [citation mitigating from statute did not the sentencer cause preclude considering Pennsylvania evidence, it was consonant with that [citation omitted] mitigating type addition, that the statute was not the Court concluded ‘impermissibly principle. v. as that term was understood’ Woodson North Carolina [citation “mandatory” v. because it did not automat- and Roberts Louisiana [citation omitted] omitted] death conviction for certain of murder. omit- ically impose upon types [Citation The same is true of the Arizona statute. ted.] instruction which “Similarly, California, Boyde supra, upheld pattern jury stated that conclude that the circumstances you ‘[i]f aggravating outweigh circumstances, shall a sentence of deаth.’ omit- mitigating you impose [Citation The Court noted that ‘there is no . . . ted]. constitutional specifically require- ment of unfettered discretion in the and States are to struc- sentencing jury, free ture and consideration ‘in an evidence to achieve a more shape mitigating effort” rational and administration the death equitable penalty.’ [Citation omitted.] “Walton’s in this case are no more than those made in arguments persuasive added.) 497 U.S. at 651-52. Blystone Boyde.” (Emphasis Blackmun, Brennan, Marshall, and Stevens dissented Justices from this that the fact that the Arizona statute holding, arguing if death circumstances required aggravating mitigating were in violated the Amendment. See 497 U.S. equipoise Eighth (Blackmun, at 687 in Walton J., dissenting). dissenting opinion is the 21-4624(e) reason the in this case holds K.S.A. un- majority Walton, however, constitutional. rejected equipoise argument, in this case. holding just opposite majority opinion Walton not reaffirmed the holdings Blystone only Boyde that it is not violation of the Amendment to mandate death Eighth certain such as that the factors findings, outweigh factors, but also extended that rationale to a mitigating weigh- such as that used Arizona which mandated death ing equation unless the factors were substantial to call for mitigating sufficiently is, unless factors were not leniency, outweighed circumstances. It is clear to me that the United States Court’s opinion in Walton answered the The Ninth Circuit cer equipoise question. Lewis, did. In Adamson v. it (9th 955 F.2d tainly thought 1992), that Walton overturned its decision in Cir. it recognized Adamson v. Ricketts of the Arizona regarding constitutionality so. In State The Idaho Court also penalty. thought 638, 646-47, 851 (1993), Idaho P.2d 934 the Idaho Hoffman, Walton, Court found that under State v. its statute which Supreme a defendant to circumstances which out required prove mitigating circumstances was constitutional. The Illinois weighed aggravating Walton, Court, in a decision which Supreme actually predated Thomas, See for this same cited People proposition. Blystone 500, 542, N.E.2d 57 Ill. 2d Court since United States decided Cases Bly- the theme estab stone, have continued with and Walton Boyde, Alabama, 504, 512, 130 513 U.S. in cases. In Harris lished those Court, (1995), in 115 S. Ct. 1031 L. Ed. 2d was not unconstitu scheme that Alabama’s finding determin it did not tional even judge guidance though give verdict, “We reiterated: whether to advisory accept juiy’s ing mit that ‘a method for the notion have balancing specific rejected in a factors sentencing proceeding igating ” in Buchanan v. Similarly, Angelone, constitutionally required.’ (1998), 269, 276, L. Ed. 2d 118 S. Ct. Court stated: that the sentencer not our cases have established may “In the selection phase, consider, refuse to constitution- frоm not any considering, may precluded However, the state relevant evidence. may [Citations omitted.] mitigating ally so as it does not consideration and structure mitigation long shape jury’s evidence. [Citations relevant mitigating

preclude jury giving from effect that restrictions on the sentenc- consistent concern has been juiy’s Our omitted.] able to effect to determination not from mitigating juiy being give ing preclude evidence. further and held that the state must “But we have never affirmatively gone evi- the manner in which consider structure in a juries mitigating particular way added.) dence.” (Emphasis Court’s continued insistence Given the United States Supreme method for bal- that the Constitution does not require specific circumstances, and its specific ancing aggravating is identical in Arizona’s which prac- weighing equation approval 21-4624(e), I find it difficult to understand tice that in K.S.A. 21-4624(e) is to its conclusion that K.S.A. how the comes majority cannot come on its face. conclusion unconstitutional Certainly, The few cases the cases which have addressed from subject. which lend from other support majority’s jurisdictions might conclusion are entirely unpersuasive. such as the

Besides our equation opinion Kleypas, weighing 21-4624(ej has been declared unconstitutional one used in K.S.A. Ninth Circuit four cases: the aforementioned opinion only Ricketts, v. Adamson 1011; v. 865 F.2d 868 F. Hulsey Sargent, (E.D. 1993); v. Ark. (Colo. 814 P.2d 834 People Young, Supp. v. 1991); State 524 A.2d 130 Biegenwald, N.J. cases, however, circumstances of each of these them little give weight.

First, Adamson, as the Ninth Circuit Court was ab- recognized, in Walton v. Arizona. See Court’s rogated by opinion Lewis, v. Adamson 955 F.2d at 619. This also causes abrogation in that the federal district court in Hulsey Sargent, problems that case relied on Adamson v. Ricketts for its decision and entirely did not even mention the effect of Walton. See 868 F. at Supp. 1103. It is whether decision highly questionable Hulsey would have survived review the Circuit Court of by Eighth Appeals, its reliance on Adamson v. Ricketts and the Ninth given express Circuit’s determination that Adamson v. Ricketts was abrogated by Walton. however, The State’s was dismissed appeal Hulsey, by Circuit because the State failed to file its notice Eighth timely See (8th 15 F.3d 118-19 Cir. Hulsey appeal. Sargent, 1994). cases,

Nor are the two state Biegenwald Young, persuasive. was decided in and Wal- before Biegenwald Blystone, Boyde, ton. The New Court in found that Biegenwald Jersey Supreme “fundamental fairness” that the defendant the benefit required get of the doubt where the for his misconduct were “explanations as the of that misconduct.” equally significant culpable aspects However, See 106 аt 62. this for fundamental fair- argument N.J. ness was not to the United States Constitution rather keyed but New “traditional concern for the of defendants Jersey’s rights with offenses” and the of the charged legislative history which that the New adoption weighing equation suggested had meant to a different Jersey legislature actually adopt equation factors to factors. requiring outweigh mitigating See 106 at 59-60. N.J. the Colorado Court determined Similarly, Young that a which mandated death when the weighing equation aggra- factors were would violate the vating equipoise that a scheme would be rational and requirement conclusion, the court this 845. In 814 P.2d at See reliable. reaching in Walton clearly misinterpreting holding distinguished that under the Arizona Arizona weighing stating weighing equation, those mit- determine whether must also sentencer “[t]he equation, or, ... factors are factors outweighed igating 814 P.2d to call for are sufficient leniency.” stated alternatively, is in above, the Arizona As noted reality, 846. weighing equation (Blackmun, Walton, dissent- 497 U.S. at 687 See J., opposite. Gretzler, at 53-55. This misconstruction 135 Ariz. State v. ing); of the Arizona Walton’s court to allowed the lump approval Young of the Court’s in with the Supreme approval weighing equation that Walton and to conclude in Blystone Boyde equations weighing at 846. In See 814 P.2d did not address question. equipoise however, of its construc- end, court unsure Young appeared held that even Constitution and instead the United States tion of the United violated that the if its determination equation weighing incorrect, would Constitution States weighing equation at 845-46. 814 P.2d the Colorado Constitution. violate then, for the This, total of is the sum authority proposition when and mandates death which aggravating weighing equation Amendment: violates factors are Eighth equipoise mitigating Ninth Circuit has Ninth case which the A Circuit recognized Court; the United States been Supreme having abrogated Ninth Circuit on that case based federal district court entirely United case; state case which a New Court predates any Jersey is of the issue and which Court discussion States primarily Supreme New but instead on the United States Constitution based not on for the of defendants “traditional concern charged rights Jersey’s offenses,” state case based and a Colorado with primarily capital in com- state constitution. This on the Colorado authority pales States Court a decision of the United Supreme parison Walton v. Ar- see such authorizing weighing equation, expressly the United izona, assertions of 497 U.S. and the repeated mit- that no method for Court States balancing specific factors in а sentencing proceeding igating Buchanan v. Angelone, constitutionally required. Walton, (1998). 118 Ct. 757 See 139 L. Ed. 2d S. 651-52; U.S. at 377; v. 494 U.S. at California, Boyde Blystone 494 U.S. at 309. Pennsylvania,

There seems to be a that the general feeling among majority which mandates death in the weighing equation highly unlikely event that the finds the circum- juiy stances to be While is somehow “unfair.” exactly equal weight it is within the of this court to certainly province interpret Amendment, we cannot do in a so vacuum. We cannot Eighth on our own inchoate but instead have a simply rely feelings, duty examine, the United States Court’s analyze, apply on the matter. This is true cases such jurisprudence especially as the one before us where the of the court holds that a majority statute enacted violates the Constitution on its legislature is, therefore, face and invalid. We have held: “The of a statute is all doubts constitutionality must be resolved in presumed, favor down, of its and before the statute be stricken it validity, must may clearly the statute violates the Constitution. . . . appear Statutes are not stricken down unless the law is clear substantial infringement doubt.” superior beyond 652, 668, State 272 Kan. 36 P.3d 231 Groschang,

This is not to that we should not strike down statutes which say However, on the Constitution. when a court takes clearly infringe such a it is that a articulated reason be step imperative clearly given and that it be how that reason fits into the United States explained Court’s on the issue. The cases examined Supreme jurisprudence conclusion from the decision. compel opposite majority’s It is ironic that the than more majority appears ready adopt on the of whether the my dissenting opinion Kleypas question statute could be saved if it did in fact violate the Constitution. That of the dissent was written in an unsuccessful effort to part compel address the of the stat- Kleypas majority squarely question ute’s and to articulate its as to constitutionality reasoning why 21-4624(e) K.S.A. violates the Constitution. It is unfortunate that rushes to me too much credit majority give perhaps my statute, unconstitutional, that the if is unconsti- dissenting opinion face, tutional on its but theme completely disregards overriding dissent, which is that the statute is not unconstitutional at my all. (Davis, See 272 Kan. at 1124 Kleypas, J., dissenting). I because con- from

I dissent majority opinion respectfully 21-4624(e), the Kansas K.S.A. clude that Legislature passed Amend- under 1994, is constitutional was and Eighth today United States Constitution. ment to the Nuss, McFarland, in the dissenting foregoing join J. C.J. opinion. NüSS, Davis for the reasons discussed I J., dissenting: join Justice dissent I write a in his primarily separate dissenting opinion. over his one of reasons: elaborate controlling authority, Arizona, v. of Walton аt of death the instant case’s issue equipoise, overruled 511, 110 (1990), Ct. 3047 111 L. Ed. 2d S. 497 U.S. Arizona, 584, 153 L. Ed. 2d on other grounds Ring 536 U.S. 556, 122 S. Ct. 2428 in Fur Court’s decision the United States

Ever since Supreme man v. Georgia, L. 2d 92 S. Ct. 408 U.S. Ed. to fashion death (1972), have state pen struggled many legislatures unconsti will not strike as which the Court statutes alty Supreme nor be neither smooth tutional. Their have been straight paths directions, and often its cause the Court’s certainly requirements, less than consistent. than clear and at least have been less arguably could consider constitutionality justifiably Many legislatures described as a one. As in death moving target penalty jurisprudence members, “[f|or state law own one of the Court’s makers, been that a decision of this Court the lesson has nearly future; we or worthless as a for the seemingly though approve guide we well ret some even may sentencing procedure today, require Arizona, it tomorrow.” Walton 497 U.S. roactively prohibit (Scalia, 668. J., concurring). did, however, bestow constitutional Court passing in three cases in 1990: Bly statutes on state

grades stone v. Pennsylvania, 299, 108 110 S. Ct. L. Ed. 2d 370, 108 (1990); L. Ed. 2d California, Boyde and Walton. As a result, (1990); if a state 110 S. Ct. 1190 legislature of those which a death statute identical fashion can penalty cases, receive then its statute should also were these approved statute, Kansas death constitutional penalty passing grade. 21-4624, K.S.A. identical-—on the issue of death at functionally the Arizona death statute in Wal- equipoise penalty approved —to ton. Walton controls. To demonstrate that Walton Accordingly, controls, I it find to set forth below much of its necessaiy specific language.

WALTON

There is no that the issue at question equipoise before the Walton Court. As Davis’ dissent ex- squarely Justice Court certiorari to resolve the conflict plains, Supreme granted Court, between the Arizona which held its state death Supreme constitutional, statute to be and the United States Court Circuit, for the Ninth which held the statute to be un- Appeals constitutional “for the case, reasons submitted Walton this by Ricketts, see (1988) (en Adamson v. banc).” F.2d 1011 647. Petitioner Waltons brief

To case,” “the reasons submitted Walton in this one identify must consider his brief:

Petitioner Walton his second “Question began by clearly stating Presented” on 1 of his brief as follows: p. “Whether Arizona’s statute violates the capital Four- sentencing Eighth

teenth Amendments by: “a) that death be if the defendant fails to requiring the existence imposed prove circumstances substantial to call sufficiently leniency; “b) the sentencer from precluding circumstances unless considering mitigating the defendant has established their existence of the evi- preрonderance added.) dence?” (Emphasis

Next, Walton articulated the effect of this italicized petitioner both the Arizona statutory language interpreted by —as Court and the Ninth Circuit —on 33 of his brief. In the section p. Death,”

titled “The in Favor of he Statutory Presumption argued: “Not must Arizona defendants establish that only particular mitigating exist, circumstances but must show these circumstances are they ‘sufficiently substantial to call for . . . This tells an Arizona sen- leniency.’ statutory language factor, who finds even a that death must be tencing judge single aggravating unless—as the Arizona Court it in Petitioner’s case—there imposed, put ” Walton, 571, 769 159 Ariz. State v. (citing

are mitigatingfactors.’ ‘out-weighing [1989]). P.2d 1017 the italicized then At Walton language’s statutory repeated p. at death he considered He also equi- effect. why clearly argued to his is connected statutory which regarding argument poise, death, his constitutional violative of to be favor presumption rights: (9th 1988)], Ricketts, Ninth Circuit suc- F.2d 1011 Cir. Adamson v. [865

“In this described system: cinctly statute, has been circumstance ‘Under the once any single statutory aggravating established, the existence of a establish mitigating the defendant must not only circumstance, the risk any mitigating but must also bear nonpersuasion circumstance(s) . . . The rele-

circumstance will not outweigh to call for substantial leniency” in the “sufficiently vant clause —thus statute — the existence of the court has found of death once a presumption imposes (footnotes omit- at 1041-2 circumstance.’ 865 F.2d statutory single added.) ted).” (Emphasis the issue of Walton clearly presented again Finally, petitioner titled In the section 36-37 of his brief. on equipoise pp. Discretion,” he “The Removal of argued: Sentencing ‘shall’ it sentencer statute is “The Arizona mandatory: provides explicitly is found and circumstance sentence whenever a death single aggravating impose . . . his burdens of the defendant fails to meet statutory proof. it nonetheless statute does deprives “. . . While the require balancing, sen- the Constitution’s individualized discretion mandated sentencer of the in situations where the ag- This is because mitigating tencing requirement. the court ... the statute bars imposing circumstances are balance gravating from Thus, individualized can less than death. presumption preclude a sentence v. Rick- sentence. . . . Adamson it can to mandate death operate sentencing added.) (footnotes omitted).” etts, 865 F.2d at 1043 (Emphasis supra, Plurality Opinion two sub- White, addressed the for the writing plurality, Justice Presented” Sec- Walton’s second “Question

parts petitioner In Section 497 U.S. at 649-652. See tions III and IV of opinion. Arizona “that the III, Walton’s contention he rejected expressly Amendments because and Fourteenth violates the statute Eighth the burden of it on defendants establishing, prepon- imposes evidence, derance of the the existence of circumstances call for at 649. substantial to sufficiently leniency.” IV the ex- Then Section White plurality opinion, Justice Walton’s other contention that rejected pressly 13-703(E) “because [Arizona court ‘shall1 statute] provides impose § death if one or are and more circumstances found aggravating mitigating circumstances are held for insufficient to call the statute an creates leniency, unconstitutional the that death is sentence.” 497 U.S. 651. at presumption proper As for Walton’s latter White support rejecting argument, Justice to looked two cases decided Court 4 the months capital only earlier: (1990) “Our recent decisions in v. U.S. 299 and Pennsylvania, Blystone Boyde (1990),

v. 494 U.S. 370 foreclose this submission. . . . We California, pointed out of individualized in Blystone] [in ‘[t]he requirement sentencing capital ” cases is satisfied the to consider all relevant evidence.’ by allowing jury mitigating 307). at 651-52 494 U.S. at (citing Blystone, v. White then explain why Boyde proceeded California Justice the and its of particular supported plurality’s rejection analysis Walton’s argument: instruction “Similarly, California, which Boyde supra, upheld pattern jury stated that conclude the the ‘[i]f circumstances you aggravating outweigh circumstances, shall a sentence of death.’ See 494 atU.S. mitigating you impose 374. . . . The Court noted that ‘there is no . . . re- constitutional specifically of unfettered discretion and States are quirement sentencing jury, free

structure and consideration “in evidence an to achieve shape mitigating of effort’ Id., a more rational and administration equitable death at penalty.” of (1988) Franklin «. U.S. 164 Walton’s (quoting Lynaugh, (plurality opinion)). in this case are no more than those made in and arguments persuasive Blystone added.) 497 U.S. at 652. Boyde.” (Emphasis Scalia White and other three of this joined justices Justice O’Connor, Chief plurality, Rehnquist, Justice Justice Justice to form a which held Arizona’s death Kennedy, majority penally were constitutional and affirmed Walton’s sentencing procedures death sentence which had been under those imposed procedures. Dissenting Opinion While White did not ex- use word or “equipoise” Justice i.e., “situations signal

pressly concept, specifically referencing are bal- circumstances

where the aggravating mitigating ance,” his four certainly acknowledged dissenting colleagues them. at the issue directly prеsented equipoise Blackmun, fellow dissenters for himself and writing Justices Justice Marshall, Stevens, this Brennan, not addressed specific only at at 497 U.S. but B of the in Section issue opinion dissenting his with death equipoise: actually began analysis to place “7 that the Constitution the State Arizona also believe forbids that are circumstances burden capital proving mitigating defendant 13-703(E) Ariz. Rev. Stat. Ann. to call substantial ‘sufficiently leniency.’ § for established, has the Arizona stat- an circumstance been Once de- unless the ute that death is to be deemed mandates appropriate penalty view, establishes a That my ‘pre- fendant otherwise. statutory provision, proves alia, inter in violation of the Amendment. death’ Eighth [Citing, sumption Ricketts, (9th 1988).] 865 F.2d Í041 Cir. Adamson has a defendant’s mit- Arizona Court indicated that "The repeatedly will be deemed substantial call only evidence ‘sufficiently leniency’ igating those in "... aggravation. mitigating ‘outweigh’ If if and factors trial are in statute that the circumstances requires equipoise, of death The assertion that sentence may impose punishment. judge to the Amendment such a case runs counter directly Eighth require- imposed the a that death is that a sentence must rest ‘determination ment upon capital added.) in a case.’ (Emphasis [Citation omitted.]” punishment specific appropriate (Blackmun, atU.S. 686-87 J., dissenting). that death at Not did the four dissenters only acknowledge equi- them, was to but more they directly presented important, poise also White’s plurality unequivocally interpreted opinion Justice that of the issue. the dissenters Specifically, opined having disposed and the reliance on Blystone Pennsylvania Boyde plurality’s states’ death stat- because those misplaced penalty California from on this issue: utes were Arizona’s very distinguishable the be “The in those cases that death would statutes penalty upheld provided the after a determination that circumstances outweigh ‘only aggravating imposed the in the crime committed circumstances particular mitigating present defendant, are or that there no such circumstances.’ Blystone, mitigating particular nor statute 494 U.S. at 305. In neither did require Boyde Blystone challenged a when and are balanced. evenly sentence capital mitigatingfactors aggravating do the Arizona statute: decisions not to issue Those simply speak posed defendant the burden whether the State may place capital permissibly upon added.) of that a sentence of death is not demonstrating appropriate.” (Emphasis (Blackmun, 497 U.S. at 687-88 J., dissenting). The dissenters’ next continued their anal- very paragraph clearly the issue death at as follows: ysis equipoise “The does not a Arizona plurality explain why attempt may require sentence in a case where and circumstances are aggravating mitigating evenly Indeed, balanced. does not even that this plurality is dis- acknowledge Instead, it offers a assertion: positive question. only ‘So as State’s conclusoiy long method of the burdens of does not lessen the allocating State’s burden to proof element of the offense or in this prove case to every charged, existence prove circumstances, a defendant’s constitutional are not aggravating violated rights on him the burden of circumstances by placing proving mitigating sufficiently ” (Blackmun, to call substantial 497 U.S. at 688 leniency.’ J., dissenting).

The dissenters not denounced the tacit only plurality’s approval death, that “in the tie to the State.” also concept goes They that worried lack of a would al- plurality’s “limiting principle” low states to an even burden of the de- place greater proof upon fendant avoid sentence death: fighting “One searches in vain for hint of a a State that limiting May principle. require the death an whenever factor is penalty imposed established and aggravating circumstances do not those mitigating ‘substantially outweigh’ aggravation? a state that statute a death May sentence is provide presumptively appropriate whenever an circumstance is that can proved, presumption be rebutted only circumstances are by showing mitigating ‘extraordinarily test; viz., These formulations would great’? appear satisfy plurality’s circumstance, the State establish an no required mitigating added.) evidence is excluded from the sentencer’s consideration.” (Emphasis (Blackmun, U.S. at 688 J., dissenting).

The dissenters also observed of this plurality’s approval in the Arizona statute to rest concept “appears an between evidence analogy capital sentencing affirmative defenses in cases.” 497 689. The noncapital dissenters left then no doubt that believed the in- they plurality the tie to to the State. ended their correctly permitted go They that the Constitution bars from Arizona analysis by “concluding] a defendant the of burden that miti- placing upon capital proving circumstances are substantial to call for leni- gating ‘sufficiently ” — a that the dissenters admitted was ency’ phrase by interpreted 570 the to defendant Court as

the Arizona prove requiring 497 U.S. his factors. factors his outweighed aggravating mitigating at 690. view, in their four dissenters were correct

In the interpre- my conceiv- of tation their opinion. plurality colleagues’ plurality his her than or defendant more required capital prove ably factors; his her or factors “outweighed” mitigating rather, them. they “substantially outweighed” Today, e.g., however, not the outer reaches of we need determine try rather, burden of defendant’s proof; plurality opinion regarding that death at is within need we only acknowledge equipoise constitutional boundaries. opinion’s cases cited in Walton Controlling said, the which most

That persuades plurality opinion part at is—as observed me by tacitly equipoise approved White’s an between drawing mitigat- analogy dissent —Justice he cited two evidence and affirmative defenses. particular, ing which the burden Court’s decisions placed else be on the defendant self-defense or insanity put prove —or Ohio, 267, v. 228, 94 Ed. S. to death: Martin 480 U.S. L. 2d 107 790, and Leland Oregon, (1987); 343 U.S. 96 L. Ed. Ct. 1098 1302, He cited two S. Ct. 1002 additionally non-capital York, 197, cases: Patterson v. New L. 2d 432 U.S. Ed. murder Delaware, and Rivera v. (1977); 429 U.S. S. Ct. (1976), L. 2d 97 S. Ct. 226 which also Ed. placed an As burden on the defendant affirmative defense. prove Jus- tice White concluded: cases controls the result in this case. So “The basic these principle long does not lessen the State’s bur- State’s method burdens allocating proof or in this case to den to element of offense prove prove every charged, circumstances, not a defendant’s constitutional are existence of rights him the burden of circumstances suffi- violated on proving placing added.) 497 to call for 650. substantial leniency.” (Emphasis ciently cases, Leland Oregon, In one of cited that the defense of Court insanity proved requirement upheld who had been sen- a reasonable doubt defendant béyond Next, Delaware, to tenced death. Rivera v. though the court dismissed the for want of a substantial federal appeal the case had value: a defendant convicted question, precedential murder who raised an defense was re- insanity second-degree to his mental illness or defect a quired prove by preponderance the evidence. Rivera,

One after the Court stated in the year second-degree York, murder case of v. Patterson New 432 U.S. at that it was to reconsider Leland and Rivera” and a “unwilling upheld require- ment that the affirmative defense of extreme emotional distur- bance a of the evidence. proved by preponderance Ohio, Martin the Court observed:

Finally, “We have hаd the to from Leland v. opportunity depart so,” . . . but have refused to do Rivera v. Dela- Oregon, citing ware. “These cases were to the Patterson Additionally: important Patterson, decision and with are for de- our they, along authority cision 480 U.S. at 236. Based these today.” precedents, Martin Court the Ohio on a upheld practice imposing capital defendant the burden of of the evi- by proving preponderance dence that or he she was in self-defense when he or she acting committed a murder.

It is to me that two of these four murder additionally persuasive cases cited White the Walton Patterson v. by plurality, Justice Ohio, New York and Martin v. were also authored him. More- over, cases, Martin not affirmed the Leland line but it also only was written before White wrote the only years plurality opinion (Of in Walton. the other two cases cited for Martin’s authority Leland all the members of Walton holding, Oregon predated Court, and Rivera v. Delaware had no author due to its dismissal on jurisdictional grounds.) it is White knew my Accordingly, opinion exactly Justice —

what these four cases for stood and therefore knew perhaps his better than these cases his colleagues exactly why supported — short, for the Walton. since the Court had opinion plurality defendants, murder two repeatedly approved requiring particularly defendants, murder their ‍‌‌‌​‌​‌​‌‌‌‌​​​‌‌‌​​​‌​​​‌​‌‌‌‌‌‌‌​‌​​‌​​​​‌‌​​​‍affirmative defenses prove evidence, at least of the it was consistent preponderance entirely defendant Walton Court to essentially by prove, require evidence, he not be sentenced should why preponderance i.e., sub- death, circumstances sufficiently “prov[e] Furthermore, 497 U.S. at 650. to call for stantial leniency.” Leland, was re- whose defendant rebanee Court’s upon capital defense the even standard his affirmative to by higher prove quired doubt, the Court would a reasonable clearly suggests beyond burdens even defendant some greater sentencing approve Walton. than those upon petitioner placed case, however, like ma- in the instant The majority —much K.S.A. 21- it affirms in whose holding Kleypas reasoning jority as not make 4624(e) written —does unconstitutional any attempt United States Court these four to address Supreme important White rebed. This omis- which expressly precedents upon Justice cases as curious, White’s reliance these since sion heavy have stated could not been to Walton holding key opinion’s of these cases “The basic controls more clearly: principle best, the U.S. at 650. At result in this case.” 497 majority obbquely as “cases that Walton” these four essential cases dismisses predate and as a re- “distinct which statutory language” require analyzing however, Walton, sult, to do control.” not According “obviously, there and the instant control the outcome should they expressly case as well. OF WALTON

CASE LAW INTERPRETATIONS issue of death at contained Walton controls the clearly equipoise statute, K.S.A. 21-4624. Kansas death Additionally penalty dissent, the inter- Davis out his are points persuasive, Justice two whose inter- of Walton entities conflicting pretations statute had to be resolved of the Arizona death penalty pretations Ninth Circuit Court of the Arizona Court and the there: Appeals. Walton, inter- has

Since Arizona Court repeatedly the defendant its death statute prove require penalty preted in order factors factors which outweigh mitigating death. “On our task is avoid a sentence of independently appeal, circum- whether ‘reviewthe record to determine any mitigating

573 ” stances circumstances.’ added.) outweigh aggravating (Emphasis Brewer, State v. 486, 504, 783, 170 Ariz. cert. denied 506 826 P.2d U.S. 872 “We make this decision the death [on error, after the entire record for sentence] searching examining evidence or absence of establishing presence circumstances, and whether the cir latter determining cumstances when both are outweigh present.” (Empha former added.) Brewer, Pandeli, sis 170 Ariz. at 500. See State v. 200 Ariz. 365, 374, cert. (2001), 26 P.3d 1136 revd granted judgment Arizona, 153 L. Ed. 2d 122 Ring S. Ct. Hoskins, State v. (2002); 2428 127, 147, 199 Ariz. 14 P.3d 997 (2000), cert. Adams, denied 534 U.S. 970 (2001); State v. Van 408, 422, Ariz. cert. denied 528 U.S. 1172 (1999), 984 P.2d 16 (2000); State v. 583, 595, 191 Ariz. cert. 959 P.2d Djerf, Ysea, denied (1998); State v. 372, 375, 191 Ariz. Rienhardt, (1998); State v. P.2d 499 592-93, 190 Ariz. (1997), cert. denied P.2d 454 State v. Thorn (1998); 525 U.S. 838 ton, 335, 187 325, (1996), Ariz. 929 P.2d 676 cert. denied Gulbrandson, v. (1997); State 1217 46, 72, 184 Ariz. 906 P.2d 579 (1995), cert. denied 518 U.S. 1022 State v. (1996); 170 Greenway, 155, 170, Lavers, v. (1991); Ariz. 823 22 State 376, P.2d 168 Ariz. 391, cert. 333, denied 502 U.S. 926 814 P.2d Walton,

Moreover, after Arizona has executed defendants statute, under of its of that 22 with authority interpretation executions since 1992. Three of those executions occurred after the Arizona Court affirmed the defendants’ death Supreme penally sentences and the United States Court (post-Walton), Supreme their Miller, v. denied See State writs of certiorari. petitions 314, 186 Ariz. cert. denied 519 U.S. 1152 (1996), 921 P.2d 1151 Ross, State v. (1997); cert. (1994), 180 Ariz. 886 P.2d 1354 Brewer, denied 516 U.S. 878 (1995); State v. 170 Ariz. 486. One denials, should be too much into those but one leery reading If wonders: Court believed that Arizona was inter Supreme Walton a violated constitutional preting way petitioner’s would not the Court have at least one rights, granted petition one of those three executions? stop

574 Wal has Court the Arizona interpreted Supreme

Additionally, statute contained its death the claim that ton as penalty rejecting death, connected to the an argument closely presumption Gulbrandson, defendant ar death at argument. equipoise “once because tire Arizona statute was unconstitutional gued circumstance, the at one has least the state proven sub on a defendant the burden statute sufficiently prove places (Em death.” stantial presumption outweigh mitigation Gulbrandson, 72. Arizona added.) 184 Ariz. at Supreme phasis Wal has been “This Court rejected,” citing argument responded: Gulbrandson, at 72. State v. ton, 184 Ariz. See 497 U.S. at 650. (1992), 399, 411, 509 Salazar, P.2d 566 cert. denied 173 Ariz. 844 Brewer, 497; v. (1993); 170 Ariz. at State Green v. U.S. 912 State Ariz. 160. 170 way, Circuit, me, which had declared the the Ninth

Most tellingly unconstitutional, which the statute Arizona death establishes relied to statute Walton dissent heavily opine Amendment, also of death violation Eighth presumption In Richmond v. this Walton rejecting argument. interpreted (9th 1992), Lewis, Cir. the defendant had 948 F.2d creates an unconstitutional “that the Arizona statute pre argued Ninth sentence.” The Circuit that death is the sumption proper in Walton v. recent decision “The Court’s responded: this contention. Rich addressed and Arizona rejected” specifically Wood, mond, F.3d v. 948 F.2d at 1481. See Campbell Lewis, (1994); (9th Cir.), 511 U.S. 1119 Adamson cert. denied (9th 1992), 505 U.S. 1213 Cir. cert. denied F.2d (9th 1990). McCormick, 1153, 1170 (1992); 914 F.2d Cir. Smith Furthermore, Court the Kansas also I observe that in this fashion State Walton Spain, interpreted apparently 54, State v. 4 P.3d 621 before Kan. Kleypas, (2000) just year — (2001) it stated: 40 P.3d 139 272 Kan. —when Walton, did not create the Arizona death statute “In five agreed penalty justices The statute at issue in favor of death an unconstitutional penalty. presumption death if circum- any of the sentence of aggravating Walton required imposition ‘ and there were “no circumstances sufficiently stances were established mitigating ’ Ann. at 644 Ariz. Rev. Stat. warrant 497 U.S. (quoting substantial” to leniency. [1989]). 13-703[E] chosen § Arizona Although language legislature does not include the terms or what the statute weigh’ is ‘outweigh,’ prescribes that results in of the death if weighing process imposition mitigating circumstances are not of sufficient the balance toward weight tip leniency.” added.) 269 Kan. 59. at (Emphasis I our “to the balance toward interpret phrase tip leniency” more circumstances than circum- requiring mitigating aggravating Le., stances, a tie to the State. goes observe, Davis, I with that the Finally, again Supreme Justice Court of Idaho Walton the same In State v. interpreted way. Hoff man, (1993), 123 Idaho cert. denied 851 P.2d 934 (1994), the defendant of Idaho’s death argued part pen statute, like statute, Marsh about of Kansas’ alty argues part “unconstitutional because it a defendant miti requires provide circumstances which cir gating outweigh any statutory aggravating cumstance found.” 123 Idaho 646-47. The challenged portion statute, 19-2515(c) (1987), Idaho Code similar to § very 21-4624(e). K.S.A. It stated: death, “Where a is convicted of an offense which person bemay punishable by a sentence of death (1) shall not be unless the court finds at least one imposed circumstance. statutory Where the aggravating court statutory aggravating finds circumstance the court shall sentence the to death unless the court defendant finds circumstances which be mitigating presented may outweigh gravity of (Em- circumstance and make aggravating imposition unjust.” found of added.) phasis 21-4624(e): K.S.A.

Compare “If, vote, unanimous finds a reasonable doubt that one jury beyond or more circumstances enumerated in KS.A. 21-4625 and amend- of exist, ments thereto and further, that the existence such circum- stances is not by any circumstances which are outweighed found exist, death-,otherwise, shall sentenced to the defendant shall be defendant added.) sentenced as law.” provided by (Emphasis

The Idaho Court Mr. Hoffman’s quickly dispatched constitutional because argument Arizona, scheme was found to be “[t]his constitutional Walton case, 110 S. Ct. 111 L. Ed. 2d 511 In that Court held: ‘So as a State’s method long burdens does not lessen allocating proof

the State’s burden element every offense or this case prove charged, circumstances, a constitutional defendant’s the existence to prove circum- on him the burden violated proving are not by placing rights at at 110 S. Ct. to call leniency. substantial sufficiently stances 3055.’ the offense element of charged, was every “Because the State required prove circumstances, on Hoffman the burden placed the statutory including 19-2515(c) his constitutional did not violate rights. Code] of [Idaho by operation § Arizona, at 123 Idaho 647. Walton v. supra." 21- reasons, K.S.A. Marsh’s same

For the argument —that it death at because mandates 4624(e) is unconstitutional facially court. our be quickly dispatched equipoise—should Court’s decision the Colorado In outside of summaiy, 1991) (which (Colo. I with 814 P.2d 834 in v. agree Young, People and relies Arizona scheme Davis misreads the sentencing Justice Constitution), 868 F. the Colorado Hulsey Sargent, 1993) (E.D. (which not mention Walton but Ark. does Supp. Adamson, Circuit admits abro- which the Ninth relies upon Walton), other court since I been unable to find have gated in with the was released the Walton decision agrees po- in the instant case. sition of the four the majority justices conclusion, is the United States In this court bound by Court— until such time as that Walton Court’s holding plurality in that case— Scalia in his as warned concurring opinion by Justice mandates that the death mind. And Walton its equipoise changes statute, 21-4624, is K.S.A. in our death contained concept constitutional. I with I dissent. respectfully agree C.J., dissenting:

McFarland, 21- in K.S.A. contained Davis that weighing equation Justice 4624(e) If on a clean as written. we were constitutional writing dissent; slate, me to further write there would be no reason for however, 272 Kan. the case. State such is not Kleypas, K.S.A, 21- (2001), construed P.3d 139 majority opinion Davis, constitutional; 4624(e) to I dissent joined Justice in a Abbott as did concluding dissenting separate opinion, Justice Thus, the court constitutional as written. the statute was Kleypas 21-4624(e). K.S.A. the constitutionality unanimously upheld law, the ma- Now, in substantive without change any intervening overrules not because the statute as con- jority opinion Kleypas, unconstitutional, strued is but because the decides the majority court exceeded its in the stat- Kleypas judicial authority construing decision, ute. a 4 to 3 of a Kleypas majority consisting opinion and two written dissents. None of three took the opinions po- sition that Kansas death law must be struck down as penalty The constitutionally impermissible. majority opinion upheld law with an minor construction relative to extremely judicial equi- with the three dissenters the law as written. In poise, upholding us, decision, the case before another 4 to 3 concludes majority the death and flawed action fatally rejects majority’s in which remedied the flaw. There Kleypas perceived equipoise has been no in relevant constitutional law as change by expressed the United States Court. The has been the Supreme only change of Kansas Court occasioned re- composition by Six, Larson, Lockett, of tirements While fi- Abbott. Justices to the doctrine of stare decisis is not an “inexorable com- delity mand,” we should be of an earlier highly skeptical reversing decision where has of the nothing except changed composition Tennessee, 808, 848, court. v. See 501 U.S. 115 L. Ed. 2d Payne 720, 2597, (1991) (Marshall S. Ct. reh. denied 501 U.S. 1277 J., dissenting). of the doctrine of stare decisis to our importance legal sys-

tem has been often stated. The United States Court has that, command,” not an “inexorable recognized although “[s]tare decisis is the course it because the even- preferred promotes handed, and consistent of predictable, development legal princi- decisions, fosters on reliance and contributes to the ples, judicial actual and v. perceived integrity judicial process.” Payne Tennessee, 501 U.S. at 827. Stare decisis is: “the means which [the Court] that the law will not by ensure[s] merely change in but will erratically, fashion. principled [Stare decisis] develop intelligible that bedrock permits society are founded the law rather presume principles individuals, than in thе of contributes of to the proclivities thereby integrity our constitutional of both and in system government, fact.” appearance Vasquez 254, 265-66, 474 U.S. 88 L. Ed. Hillery, 2d 106 S. Ct. 617 See also Planned Parenthood Pa. Southeastern 505 U.S. Casey, of 833, L. (1992) Ed. 2d 112 S. Ct. (stating our own Consti of law rule underlying concept “very time that a over such

tution respect prec continuity requires v. American definition, is, edent Thornburgh indispensable”); 779, 106 786-87, 90 L. Ed. 2d & Coll. Gyn., of Obst (White, rule (1986) “[t]he S. Ct. J., dissenting) (stating if essential of stare decisis is case-by-case decisionmaking judicial law, for when of the rule with the is to be reconciled principle case, decid are to revision standards every open governing legal will, with a mere exercise cases becomes arbitrary judicial ing results”). and unpredictable stare decisis

We have acknowledged importance similarly decisions, in our stating: court, law of will of law has been established generally “once point point cases and all courts of lower rank subsequent the same court be followed by is raised. Stare decisis system^

where the same issue operates promote legal of decisions that have been the survival wide and continuity ensuring stability by . . of stare decisis ensures this court. . The by application approved previously re of a judicial continuing legitimacy stability continuity demonstrating — 336, 356, Services, Inc., 789 P.2d 246 Kan. Samsel Wheeler view.” Transport 824, 844, Peck, (1990), Bair v. 248 Kan. on other disapproved grounds, P.2d 1176 service to the of stare The concept majority opinion pays lip decisis, it, but hastily disregards stating: case law from well-settled and sound “Stare decisis is protect precip- designed It to insulate a consti- is not itous or changes. designed questionable impulsive and, for, when called abandonment. This tutional from critique rule thoughtful of a like the one us here. true in situation Kleypas’ application especially facing untested. was not vetted. It is and previously the avoidance doctrine young fully erroneous; 21-4624(e) aas constitu- Its of K.S.A. was not clearly only rewriting 278 Kan. it encroached of tional adjudication, power legislature.” 544-45. in 2000. In was heard December pre- Kleypas appeal months, number of hours was an spent

ceding unprecedented research court research many attorneys lengthiest by preparing I issues memorandum have ever seen. relating Fifty-one sentence, conviction, of the and the constitutionality validity law as a whole were considered Kansas death exhaustively penalty deliberation, a examination and court. At the end of of this year by 28, 2001, on December a we issued in which we 338-page ruling law, concluded that the Kansas death spеcifically 21-4624(e), contained in K.S.A. was constitu- weighing equation tional. Far more time on this case spent by justices, issue, and on the than other general, weighing particular, I case since became a of member this court in 1977. The majority brushes off the opinion majority holding Kleypas; stating vetted,” issue was not cannot cri- withstand “fully “thoughtful and is erroneous.” tique,” “clearly

While it is true that stare decisis need not be an “inexorable command,” from it should be “informed a series any departure by considerations to test the prudential pragmatic designed with decision the ideal of the rule consistency overruling prior law, and to costs of and over- gauge respective reaffirming case.” See Planned Parenthood v. 505 U.S. at ruling prior Casey, (1) 854. These considerations include: whether the decision sought

to be overturned has to be intolerable proven simply defying (2) whether the decision is to a kind practical “workability”; subject of reliance that would lend to the special hardship consequences and add (3) to the cost of overruling inequity repudiation; whether related of law have so far as to have principles developed left the rule established the old decision no more than a remnant doctrine; (4) of abandoned and whether facts have so or changed, have come to be seen so as to have robbed the rule differently, established the old decision of or significant application justifi- cation. 505 U.S. at 854-55.

There can be no serious contention that our decision in Kleypas 21-4624(e) K.S.A. in a constitutional manner has construing proven to be unworkable. From the the constitu- beginning, perceived tional with the was the problem weighing equation slight: weighing mandated rather death than life sentence in ex- equation event that the determined the tremely unlikely juiy and circumstances to be in is balance. It almost perfect to conceive as to how this event would come in about impossible real, as situation. In the stat- opposed hypothetical, construing circumstance, ute so as to in mandate life that we avoided the that the entire Kansas death law would be ren- possibility penalty that to an artificial situation its invalid because of dered application real There is no never arise. almost would question certainly in constitu- statute, decision construed our as Kleypas, by tional. our decision of whether us

This leads Kleypas question would lend a of reliance that to a kind has been special “subject to the of and add to the inequity overruling hardship consequences into 505 U.S. at “The 854. See cost of inquiry Casey, repudiation.” it would fall on of a rule’s as counts the cost reliance repudiation continued on the rule’s who have relied those applica- reasonably one think 505 U.S. at 855. From tion.” opinion, might majority on our decision no reliance there could have been Kleypas, it as and characterizes inasmuch as the previously “young majority However, real this 278 Kan. at 544. untested.” very ignores courts, of Kansas have and reliance that the people legislature, on our decision. placed death the moral of the

Whatever one’s on pen- validity opinion on behalf the fact remains that acting legislature, alty, Kansas, an act for the of into law of the passed providing people narrow, de- as a death clearly punishment penalty possible See L. murders. fined of intentional group premeditated consider the 252. was the first case to ch. State validity Kleypas was awaited of that death our decision by eagerly penalty, that the Kansas as a test of whether death penalty people muster. had enacted would constitutional pass legislature we told the our Kleypas, legislature, Through opinion Kansas, it the death law had extension penalty people this was constitutional as construed court. enacted legisla- on our of the ture had the construction rely weighing equa- right 21-4624(e), no action on and concluded that further tion in K.S.A. have a in order for Kansas to constitutional its was necessary part our that the Kansas death death reliance on assurances penalty. construed, a substantial number law constitutional state, have tried in this been resulting penalty proceedings A of five death sentences. in the report by Legis- imposition of Post Audit estimated the costs lative Division taxpayers’ in its in the millions dollars. cases included study post-Kleypas See Kansas Audit Post Committee Performance Audit Legislative Cases, (De- Costs Incurred for Death D Report, Penalty Appendix 2003). cember to the this what court should have done in

According majority, was declare the statute unconstitutional on its face. The Kleypas therefore believes that is the here. majority appropriate remedy However, the situation is not same here as it was in Kleypas. Where on this court has not of a stat- spoken constitutionality ute, all of those affected it are on notice that its by constitutionality tested, However, been has not and that it be found might wanting. involved, where this court has addressed the statute on the precise articulated, constitutional, and found the statute to be precise point decision, on should entitled to not see it over- persons rely turned the next time case the same issue comes very involving before this court. This reliance militates dis- against haphazardly our in decision carding Kleypas. can there be no that “related

Certainly, argument principles law have so far as to have left the old rule” established developed “no more than remnant of abandoned doctrine.” See Kleypas 505 U.S. at 855. Our decision is a mere 3 Casey, years Kleypas old, and this court has said in the interim has evidenced nothing our intention to its abandon there underlying principles. Similarly, has been of the United States Su- nothing jurisprudence Court time show that our decision in preme during Kleypas was incorrect.

Nor have “facts ... so or come be seen so differ- changed, as to have robbed the old rule [established ently, Kleypas or See decision] Planned significant application justification.” Parenthood 505 U.S. at 855. There has been no Casey, significant decision, in the factual of our change underpinnings Kleypas no facts that its would cause central to be ren- change holding dered obsolete. decision the barest of discards today, majority’s margins,

our decision in not because that decision has 3-year-old Kleypas, unworkable, become or the laws or facts it have underpinning it, aor United States Court decision mandates changed, but because this new has the to do so. And simply majority power of an where the continuation is not situation end? This

to what hard- the to work decision has erroneous great potential allegedly in the statute Our construction of of individuals. on the rights ship with affect the those not does charged adversely rights Kleypas murder; rather, it protection. actually provides greater in 21- K.S.A. that the is no There weighing equation question constitutional. 4624(e), decision in is as construed our Kleypas, Thus, defendant will be sen- no there is now any possibility circum- the and tenced to death where mitigating decision in creates in This court’s stances are Kleypas equipoise. Nevertheless, the deci- no defendant. majority’s prejudice that death-sentence the anomalous sion herein has consequence Robinson, Carr, Carr, D. D. defendants: Reginald John Jonathan herein), Marsh, Belt, (defendant L. II Sr., and Michael Douglas the fact that their death sentences will have swept away, despite the was not factor which so concerns the pres- majority equipoise cases, in each of these five The death ent. proceedings penalty Marsh, and, thus, the each of were tried juries post-Kleypas except that, the to our decision was instructed Kleypas, ag- pursuant the factors were factors mitigating required outweigh gravating and so found. for death to be each imposed, jury over- decision in must be The reasons that our Kleypas majority the of the in order to avoid ruled legis- encroaching upon power that, viewed our de- had the One assume lature. legislature might encroachment, an at the there have been cision as an might outcry Yet, of the sort oc- was handed down. time the decision nothing curred. avoid desire to

It is ironic that its majority, professed so of the does by frustrating usurping power legislature, a constitutional death clear intent penalty. pass legislature’s the Kansas that the There is no indication passing legislature, law, concerned that the sentence particularly penalty circum- death in the event in his As Davis has shown dis- stances were exactly equal. Justice sent, is to arise out- an event such unlikely extremely “equipoise” are situations that more side the realm of province hypothetical the Kansas death than of law By invalidating professors judges. on the its law basis of a technical event that application world, almost certain never to arise the real the majority opin- ion thwarts intention of in order to legislature, ostensibly, it. tribute to pay this court is the con only currency legitimacy possesses

fidence of the that we will decide cases based on con public law, sistent rather than on the application proclivities courts, individual court members. trial Attorneys, public have law, to know settled, once will ‍‌‌‌​‌​‌​‌‌‌‌​​​‌‌‌​​​‌​​​‌​‌‌‌‌‌‌‌​‌​​‌​​​​‌‌​​​‍remain right point law of settled the state and not be overturned time the every of the court Our to the doctrine of composition changes. fidelity absolute, stare decisis need not be but we should not abandon our decisions without a reason to do so. See United prior compelling States v. International Business Machines 843, 856, Corp., L. 2d Ed. 116 S. Ct. 1793 No reason compelling and, result, has been shown herein as a I believe the opin majority ion ais breach of that fidelity. I the dissent of Davis in I because con- joined Kleypas Justice

cluded as he did that the was constitutional as weighing equation enacted. I still so believe and am his dissent herein on that joining decision, issue. In a 4 to all seven Kleypas, justices agreed constitutional, Kansas death law was either as construed penalty (dissent). minor or as written To now very respect (majority) is, strike down the Kansas death law in my opinion, wholly and I dissent therefrom. inappropriate unjustified,

Case Details

Case Name: State v. Marsh

Court Name: Supreme Court of Kansas

Date Published: Dec 17, 2004

Citation: 102 P.3d 445

Docket Number: 81,135

Court Abbreviation: Kan.