[Deathpenalty]death penalty news----KANSAS

[Rick Halperin]

Dec. 17



KANSAS:

Kansas Supreme Court strikes down death penalty


A divided Kansas Supreme Court struck down the state's death penalty.

The 4-3 decision vacates all 6 death penalty convictions in the Kansas
judicial system.

The court ruled unconstitutional the part of the death penalty that
instructs a jury on weighing aggravating factors of the crime against the
background of the defendant, which may have affected that person's
judgment.

Essentially, the law says that if a jury decides the aggravating factors
and mitigating factors are the same in weight, the defendent gets the
death penalty. It's referred to as "a tie goes to the state."

A majority said that was unconstitutional and needs to be fixed by the
Legislature. The majority included Justices Donald Allegrucci, Marla
Luckert, Robert Gernon and Carol Beier.

In dissent were Chief Justice Kay McFarland, Robert Davis and Lawton Nuss.

"To now strike down the Kansas death penalty law, is, in my opinion,
wholly inappropriate and unjustified," McFarland wrote.

The case involved Michael L. Marsh II, who was sentenced to die for the
June 1996 death in Wichita of Marry Ane Pusch, 21.

Pusch had been shot and stabbed and her 19-month old daughter left to die
in a fire.

(source: Lawrence Journal-World)



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IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 81,135

STATE OF KANSAS,

Appellee,

v.

MICHAEL LEE MARSH II,

Appellant.

SYLLABUS BY THE COURT

1. The standard of review on a sufficiency of the evidence claim in a
criminal appeal is whether, after review of all the evidence, viewed in
the light most favorable to the prosecution, we are persuaded that a
rational factfinder could have found the defendant guilty beyond a
reasonable doubt.

2. A conviction of even the gravest offense may be sustained by
circumstantial evidence. It is the function of a jury and not an appellate
court to weigh evidence and pass on the credibility of witnesses.

3. The evidence in this case was sufficient to establish that the
defendant set the fire in issue, that one of the victim's burns was the
proximate cause of her death, and that defendant acted intentionally and
with premeditation in killing the other victim.

4. The purpose of a motion in limine is to assure all parties a fair and
impartial trial by prohibiting inadmissible evidence, prejudicial
statements, and improper questions by counsel.

5. A party whose evidence is excluded by a motion in limine has the
responsibility of proffering sufficient evidence to preserve the issue on
appeal.

6. No error in either the admission or the exclusion of evidence is a
ground for new trial or for setting aside a verdict unless refusal to take
such action appears to be inconsistent with substantial justice. An
appellate court must disregard any error or defect in a proceeding that
does not affect the substantial rights of the parties.

7. Errors in violation of a constitutional right of a party are governed
by the federal constitutional error rule. Under that rule, an error of
constitutional magnitude may not be found harmless unless an appellate
court is willing to declare a belief beyond a reasonable doubt that the
error had little, if any, likelihood of having changed the result of the
trial.

8. Under the Kansas and federal Constitutions a criminal defendant is
entitled to present the theory of his or her defense. Exclusion of
evidence that is an integral part of the theory violates the defendant's
fundamental right to a fair trial.

9. Few rights are more fundamental than that of an accused to present
witnesses in his or her defense. The right to present a defense is,
however, subject to statutory rules and case law interpretation of rules
of evidence and procedure.

10. The general rule is that, unless otherwise provided by statute,
constitutional prohibition, or court decision, all relevant evidence is
admissible. Relevant evidence is evidence having any tendency in reason to
prove any material fact.

11. To establish relevance, a party must show there is some material or
logical connection between the asserted facts and the inference or result
they are designed to establish.

12. The probative values of direct and circumstantial evidence are
intrinsically similar, and there is no logically sound reason for drawing
a distinction as to the weight to be assigned to each.

13. Proper application of Kansas' third-party evidence rule is limited.
Although evidence of a third party's motive to commit a crime, standing
alone, is not relevant, such evidence may be relevant if there is other
evidence connecting the third party to the crime. Furthermore,
circumstantial evidence connecting a third party to a crime must not be
excluded merely because the State relies upon direct evidence of a
defendant's guilt. There is no bright line rule. Instead, the decision
whether to admit third-party evidence is entrusted to the sound discretion
of the district court, after evaluation of the totality of facts and
circumstances in a given case under the relevance standard set forth in
K.S.A. 60-407(f). To the extent earlier Kansas decisions suggest that the
third-party evidence rule should be applied more broadly, they are
disapproved.

14. On the record in this case, the district court's failure to engage in
an evaluation of the totality of facts and circumstances under the
relevance standard set forth in K.S.A. 60-407(f) in order to determine
whether the defendant's third-party evidence was admissible was reversible
error.

15. A party, through testimony, may open the door for otherwise
inadmissible evidence.

16. The admission of circumstantial evidence of a third person's
culpability is constitutionally required when the third person testifies
against the defendant. A defendant's constitutional right of confrontation
is violated when he or she is prohibited from engaging in otherwise
appropriate cross-examination designed to show a prototypical form of
bias, a need to deflect suspicion, on the part of the third party.

17. On the record in this case, the district court committed reversible
error by refusing to admit the defendant's third-party evidence after the
third party testified against the defendant.

18. It is a fundamental rule of statutory construction, to which all other
rules are subordinate, that the intent of the legislature governs if that
intent can be ascertained. The legislature is presumed to have expressed
its intent through the language of the statutory scheme it enacted. When a
statute is plain and unambiguous, the court must give effect to the
intention of the legislature as expressed, rather than determine what the
law should or should not be. Stated another way, when a statute is plain
and unambiguous, the appellate courts will not speculate as to the
legislative intent behind it and will not read such a statute so as to add
something not readily found in the statute.

19. Kansas courts may apply the avoidance doctrine in appropriate cases.
The doctrine is characterized by application of two canons of statutory
interpretation. First, the constitutionality of a statute is presumed. All
doubts must be resolved in favor of its validity, and, before the statute
may be stricken down, it must clearly appear the statute violates the
constitution. In determining constitutionality, it is the court's duty to
uphold a statute under attack rather than defeat it. If there is any
reasonable way for the court to construe the statute as constitutionally
valid, it should do so. Statutes are not stricken down unless the
infringement of the superior law is clear beyond a reasonable doubt.
Second, a statute apparently void on its face may be constitutional when
limited and construed to read the necessary requirements into it. This may
be done, for example, when such an interpretation will carry out the
intent of the legislature.

20. The avoidance doctrine seeks in part to minimize disagreement between
the legislative and judicial branches of government by preserving
enactments that might otherwise founder on constitutional objections. It
is not designed to aggravate that friction by creating, through the power
of precedent, statutes foreign to those the legislature intended. Those
who invoke the doctrine must believe that the alternative is a serious
likelihood that the statute will be held unconstitutional. In addition,
the statute must be genuinely susceptible to two constructions after, and
not before, its complexities are unraveled. Only then is the statutory
construction that avoids the constitutional question a fair one.

21. The courts' power to employ the avoidance doctrine to construe away a
statute's constitutional infirmity is limited. The judiciary may not
rewrite language enacted by the legislature. Rather, the doctrine applies
only when a statute is ambiguous, vague, or overbroad.

22. It is recognized under the doctrine of stare decisis that, once a
point of law has been established by a court, that point of law generally
will be followed by the same court and all courts of lower rank in
subsequent cases where the same legal issue is raised. Stare decisis
operates to promote system-wide stability and continuity by ensuring the
survival of decisions that have been previously approved.

23. Judicial adherence to constitutional precedent ensures that all
branches of government, including the judicial branch, are bound by law.
However, courts of last resort are not inexorably bound by their own
precedents. They will follow the rule of law established in earlier cases
unless clearly convinced that the rule was originally erroneous or is no
longer sound.

24. Stare decisis is a principle of policy and not a mechanical formula of
adherence to the latest decision. It is designed to protect well-settled
and sound case law from precipitous or impulsive changes. It is not
designed to insulate a questionable constitutional rule from thoughtful
critique and, when called for, abandonment. This is especially true when
the rule in question was adopted sua sponte and is young and previously
untested.

25. K.S.A. 21-4624(e) is unambiguous. Its express language was clearly
intended to mandate the imposition of a death sentence when the existence
of aggravating circumstances was not outweighed by any mitigating
circumstances. The legislature chose this language over alternative
wording recommended by the attorney general to avoid constitutional
infirmity. As a result, the statute is unconstitutional on its face under
the Eighth and Fourteenth Amendments.

26. The avoidance doctrine cannot be appropriately applied to save K.S.A.
21-4624(e). Any holding to the contrary in State v. Kleypas, 272 Kan. 894,
40 P.3d 139 (2001), is overruled.

27. On the record of this case, the evidence was sufficient to support a
finding that aggravating circumstances in support of imposition of a hard
40 sentence were not outweighed by mitigating circumstances.

28. There are three exceptions to the rule that issues must have been
raised in the district court before they will be addressed on appeal: (1)
The newly asserted claim involves only a question of law arising on proved
or admitted facts and is determinative of the case; (2) consideration of
the claim is necessary to serve the ends of justice or to prevent the
denial of fundamental rights; and (3) the district court was right for the
wrong reason.

29. Kansas' hard 40 sentencing scheme as set forth in K.S.A. 2003 Supp.
21-4635(a) does not increase the statutory maximum punishment; it sets a
minimum punishment. As such, it is not unconstitutional as a violation of
the holding in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435,
120 S. Ct. 2348 (2000).

Appeal from Sedgwick district court, CLARK V. OWENS II, judge. Opinion
filed December 17, 2004. Affirmed in part, reversed in part, and remanded
with directions.

Rebecca E. Woodman and Steven R. Zinn, capital appellate defenders, argued
the cause and were on the briefs for appellant.

John K. Bork, assistant attorney general, argued the cause, and Kristafer
Ailslieger, Jared Maag, and Elizabeth Reimer, assistant attorneys general,
and Carla J. Stovall, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

ALLEGRUCCI, LUCKERT, GERNON, and BEIER, JJ.: This is an appeal by the
defendant, Michael L. Marsh II, from convictions of capital murder of
Marry Elizabeth Pusch (M.P.), first-degree premeditated murder of Marry
Ane Pusch (Marry), aggravated arson, and aggravated burglary. Marsh has
been sentenced to death for the capital offense, life imprisonment with a
mandatory minimum term of 40 years for the murder of Marry, 51 months for
aggravated arson, and 34 months for aggravated burglary. The district
court ordered the last three sentences to be served consecutively.

On appeal, Marsh raises 18 issues arising from the guilt phase of the
trial and 16 issues from the penalty phase. We begin by observing that
there is a heightened scrutiny of trial proceedings in a capital case.
Beck v. Alabama, 447 U.S. 625, 637-38, 65 L. Ed. 2d 392, 100 S. Ct. 2382
(1980). However, because we conclude K.S.A. 21-4624(e) is unconstitutional
on its face, precluding application of the death penalty, we will not
apply a heightened scrutiny standard of review to the remaining issues on
appeal.

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

FACTS

On the evening of June 17, 1996, Marry and her 19-month-old daughter,
M.P., were murdered in their Wichita home. Marry died as a result of
multiple gunshot wounds to her head and a knife wound to her heart. The
perpetrator or perpetrators apparently did not physically harm M.P before
setting the house afire and leaving the child to die in the ensuing
conflagration. M.P. sustained severe burns to her body, resulting in
multiple organ failure and death on June 23, 1996.

Fire investigators determined the fire was intentionally started with an
accelerant applied to Marry's body. An autopsy revealed Marry had been
shot 3 times, stabbed in the heart, and her throat slashed. The county
coroner concluded Marry had died as a result of her wounds, with her body
set afire after death.

In the initial stages of investigation, detectives interviewed Marry's
husband, Eric Pusch (Pusch), who mentioned having spent most of June 17
with a friend, Michael Marsh, before going to work at approximately 4:30
p.m. as a delivery man for a local Pizza Hut. This led the police to
interview Marsh.

A series of interviews with Marsh resulted in his confession to shooting
Marry and abandoning M.P. when he fled the residence. He told the
detectives his motive was to obtain money from the Pusch family. According
to Marsh, he planned to be in the home when Marry and M.P. arrived, tie
them up, and wait until Pusch got home. He would then threaten Pusch with
harm to his wife and child to obtain the money needed for a trip to
Alaska. Marsh indicated his plan went awry when Marry and M.P. arrived at
the house earlier than he had anticipated; he panicked and shot Marry.
Initially, he told detectives he could not recall how many times he pulled
the trigger; subsequently, he indicated firing the gun once. Marsh was
equivocal regarding the fire. At one point he indicated he probably did
set the fire; at another point he stated he could not remember; and,
finally, he denied setting the fire. Marsh denied Pusch was in any way
involved in committing the crimes.

There was substantial evidence corroborating Marsh's confession. Marsh
lived with his grandparents. Keys to the Pusch home were found discarded
in a yard next to the grandparents' home. Among the items recovered during
execution of a search warrant at the grandparents' residence were a .25
caliber pistol with five cartridges in the magazine, Marsh's bloodstained
tennis shoes, a pillow with bullet holes in it wrapped in duct tape, and a
water bottle with duct tape around its neck. Expert testimony at trial
established the pillow and bottle could be used as a makeshift silencer.

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

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

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

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

SUFFICIENCY OF THE EVIDENCE

The issue on appeal is limited to whether the evidence was sufficient to
support the jury's verdict finding Marsh guilty of capital murder. Marsh
contends the evidence was insufficient to establish that: (1) he set the
fire; (2) M.P.'s burns were the proximate cause of her death; or (3) he
intentionally killed M.P. with premeditation. When a sufficiency of the
evidence issue is raised, our standard of review is whether, after review
of all the evidence, viewed in the light most favorable to the
prosecution, the appellate court is convinced that a rational factfinder
could have found the defendant guilty beyond a reasonable doubt. State v.
Zabrinas, 271 Kan. 422, 441-42, 24 P.3d 77 (2001).

Marsh confessed to the crime of aggravated burglary. He admitted hiding in
the Pusch home and shooting Marry in the head when she came into the
bedroom. The .25 caliber pistol used to shoot Marry was subsequently found
in Marsh's backpack at his grandparents' home. He admitted to attempting
to start a fire with matches to conceal his crimes but claimed this was
unsuccessful. Nonetheless, we know from the uncontroverted evidence there
was a fire that caused burns to more than 75 percent of M.P.'s body.
Although there is no direct evidence Marsh set the fire, the
circumstantial evidence is sufficient for a rational factfinder to
conclude beyond a reasonable doubt that he did so and that he abandoned
M.P. to die in the fire.

Marsh also argues the evidence was insufficient to establish M.P.'s burns
were the proximate cause of her death. This argument must fail. Both the
treating physician and the medical coroner testified M.P.'s cause of death
resulted from the extensive burns to her body and the related failure of
internal organs. Conversely, both doctors concluded the drugs given to
M.P. at the hospital did not cause her death.

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

THE EXCLUSION OF MARSH'S EVIDENCE

Marsh contends the district court erred in excluding evidence connecting
Pusch to the crimes. Marsh argues the court's pretrial order in limine
excluding the evidence was erroneous for two reasons: First, the Kansas
third-party evidence rule only excludes motive evidence in the absence of
other relevant evidence, circumstantial or direct, to connect a third
party to the crime; and second, after Pusch testified as a witness for the
State, the "door was opened" and the order in limine should have been
disregarded.

"'The purpose of a motion in limine is to assure all parties a fair and
impartial trial by prohibiting inadmissible evidence, prejudicial
statements, and improper questions by counsel.'" State v. Abu-Fakher, 274
Kan. 584, 594, 56 P.3d 166 (2002) (quoting Brunett v. Albrecht, 248 Kan.
634, 638, 810 P.2d 276 [1991]). A party whose evidence is excluded by a
motion in limine has the responsibility of proffering sufficient evidence
to preserve the issue on appeal. State v. Evans, 275 Kan. 95, 99, 62 P.3d
220 (2003). We observe the State does not challenge the sufficiency of
Marsh's proffer to the district court. We conclude the issue has been
properly preserved for appeal.

We acknowledge our standard of review to be as stated in Evans:

"K.S.A. 60-261 provides that no error in either the admission or the
exclusion of evidence is a ground for granting a new trial or for setting
aside a verdict unless refusal to take such action appears to be
inconsistent with substantial justice. The court at every stage of the
proceeding must disregard any error or defect in the proceeding which does
not affect the substantial rights of the parties. State v. Leitner, 272
Kan. 398, Syl.  7, 34 P.3d 42 (2001); State v. Morris, 255 Kan. 964, Syl.
6, 880 P.2d 1244 (1994).

"Errors in violation of a constitutional right of a party are governed by
the federal constitutional error rule. State v. Lyons, 266 Kan. 591, 598,
973 P.2d 794 (1999). Under the federal constitutional error rule, an error
of constitutional magnitude is serious and may not be found harmless
unless the appellate court is willing to declare a belief that it was
harmless beyond a reasonable doubt. Before the court may declare the error
harmless, it must be able to declare beyond a reasonable doubt that the
error had little, if any, likelihood of having changed the result of the
trial. Leitner, 272 Kan. 398, Syl.  8; State v. Clark, 261 Kan. 460, 469,
931 P.2d 664 (1997); State v. McClanahan, 259 Kan. 86, Syl.  4, 910 P.2d
193 (1996).

"This court has previously recognized that under the state and federal
Constitutions a defendant is entitled to present the theory of his or her
defense and that the exclusion of evidence that is an integral part of
that theory violates a defendant's fundamental right to a fair trial.
Mays, 254 Kan. at 486 (quoting State v. Bradley, 223 Kan. 710, Syl.  2,
576 P.2d 647 [1978]); State v. Gonzales, 245 Kan. 691, 699, 783 P.2d 1239
(1989). '"Few rights are more fundamental than that of an accused to
present witnesses in his own defense."' Gonzales, 245 Kan. at 699 (quoting
Chambers v. Mississippi, 410 U.S. 284, 302, 35 L. Ed. 2d 297, 93 S. Ct.
1038 [1973]). The right to present a defense is, however, subject to
statutory rules and case law interpretation of rules of evidence and
procedure. State v. Bedford, 269 Kan. 315, 319, 7 P.3d 224 (2000); State
v. Davis, 256 Kan. 1, 11, 883 P.2d 735 (1994); Bradley, 223 Kan. at 714."
State v. Evans, 275 Kan. at 102.

With the above standards in place, we turn to the substantive issue: Did
the district court err in concluding as a matter of law that
circumstantial evidence connecting Pusch to the crimes, as outlined in
Marsh's proffer, was irrelevant?

The general rule is that, unless otherwise provided by statute,
constitutional prohibition, or court decision, all relevant evidence is
admissible. K.S.A. 60-407(f). Relevant evidence is "evidence having any
tendency in reason to prove any material fact." K.S.A. 60-401(b). To
establish relevance, there must be some material or logical connection
between the asserted facts and the inference or result they are designed
to establish. State v. Lumley, 266 Kan. 939, 950-51, 976 P.2d 486 (1999).
We have also recognized the "probative values of direct and circumstantial
evidence are intrinsically similar, and there is no logically sound reason
for drawing a distinction as to the weight to be assigned to each." State
v. Scott, 271 Kan. 103, Syl.  2, 21 P.3d 516, cert. denied 534 U.S. 1047
(2001).

Under the above rules of evidence, we have said: "Where the State relies
on direct rather than on circumstantial evidence for conviction, evidence
offered by defendant to indicate a possible motive of someone other than
the defendant to commit the crime is incompetent absent some other
evidence to connect the third party with the crime." (Emphasis added.)
State v. Neff, 169 Kan. 116, Syl.  7, 218 P.2d 248, cert. denied 340 U.S.
866 (1950). We said in Neff that evidence of a third person's motive alone
would not have any tendency to prove a material fact, but instead would
serve to "confuse the jury, to permit [jurors] to indulge in speculations
on collateral matters wholly devoid of probative value relative to who
committed the [crime] and to divert their attention from the main issue
they were sworn to try." 169 Kan. at 123. Thus understood, the so-called
third-party evidence rule has limited application and is most assuredly
subordinate to the general rules of evidence and the statutory definition
of relevancy in K.S.A. 60-401(b).

Our recent decision in State v. Evans also helps to clarify the limited
application of the rule excluding third-party motive evidence. In Evans,
the State asserted it would call two eyewitnesses to testify Evans shot
the victim. In opposing the State's motion in limine, the defendant
proffered the testimony of several witnesses who said they saw a third
person, Reed, holding the murder weapon immediately after the shot. Thus
there was direct evidence Evans shot the victim, and there was
circumstantial evidence Reed shot the victim. The district court excluded
the circumstantial evidence under the third-party evidence rule. 275 Kan.
at 97-98. We reversed, noting that, in terms of probative value, there was
no distinction between direct and circumstantial evidence. 275 Kan. at
105. We further stated:

"The trial court's exclusion of the proffered evidence was inconsistent
with substantial justice and infringed upon Evans' substantial rights. The
evidence Evans sought to present in this case was more than just that
someone other than the defendant may have committed the crime. There was
evidence that linked Reed to the commission of the crimewitnesses saw Reed
holding the gun immediately after the shot was firedand evidence that Reed
subsequently admitted to shooting [the victim] and dumping his body. Under
these circumstances, it was erroneous for the trial court to have excluded
Evans from presenting the proffered circumstantial evidence." 275 Kan. at
106.

Both Neff and Evans clarify that, while evidence of the motive of a third
party to commit the crime, standing alone, is not relevant, such evidence
may be relevant if there is other evidence connecting the third party to
the crime. A corollary rule is that circumstantial evidence connecting a
third party to a crime will not be excluded merely because the State
relies upon direct evidence of the defendant's guilt. In short, there is
no bright line rule. Instead, there must be the sound exercise of judicial
discretion dependent on the totality of facts and circumstances in a given
case. Here, Marsh did not merely proffer evidence of Pusch's motive.
Rather, he also proffered other evidence of Pusch's connection to the
crime. This required the district judge to consider whether the evidence
was relevant under K.S.A. 60-407(f), and his failure to do so constitutes
error.

We recognize there are decisions of our court arguably suggesting we
should apply the third-party evidence rule more broadly. See State v.
Bedford, 269 Kan. 315, 320, 7 P.3d 224 (2000); State v. Bornholdt, 261
Kan. 644, 666, 932 P.2d 964 (1997); State v. Peckham, 255 Kan. 310, 321,
875 P.2d 257 (1994); State v. Calvert, 211 Kan. 174, 179, 505 P.2d 1110
(1973). To the extent these cases are inconsistent with Evans, they are
disapproved.

There are additional reasons the district court's refusal to admit the
third-party evidence constituted error.

First, even under the State's inflated view of the third-party evidence
rule, the rule should not have been applied as to the capital murder and
the aggravated arson charges. The State's evidence on those crimes was
circumstantial, not direct, because Marsh specifically denied setting the
fire leading to M.P.'s death. See Evans, 275 Kan. at 105-06.

There also is merit to Marsh's contention that, regardless of the
propriety of the district court's order in limine, it erred in failing to
admit the proffered evidence after Pusch testified at trial. Marsh argues
that Pusch's testimony "opened the door" to evidence connecting Pusch to
the crime.

A party, through testimony, may open the door for otherwise inadmissible
evidence. State v. Bedford, 269 Kan. at 322; State v. McClanahan, 259 Kan.
86, 94, 910 P.2d 193 (1996). The admission of circumstantial evidence of a
third person's culpability is constitutionally required where that third
person is a government witness. 2 Jones on Evidence  13:38 (1994) (citing
the United States Supreme Court's decisions in Olden v. Kentucky, 488 U.S.
227, 102 L. Ed. 2d 513, 109 S. Ct. 480 [1988]; and Davis v. Alaska, 415
U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105 [1974]). In both Olden and
Davis, the Court held a defendant's constitutional right of confrontation
was violated upon a showing he was prohibited from engaging in "otherwise
appropriate cross-examination designed to show a prototypical form of bias
on the part of the witness." Olden, 488 U.S. at 231; Davis, 415 U.S. at
318. As has been noted, "[w]hat greater motive could a witness have to
lie, than to deflect suspicion from himself or herself?" 2 Jones on
Evidence  13:38.

Evidence that a witness was in fact the person who committed the crime is
almost always relevant and should be admissible where the witness
testifies against the defendant. However, we did uphold a district court's
refusal to allow such evidence in State v. Bedford. It is on this case
that the State bases its argument that Pusch's testimony did not open the
door to evidence of his involvement in the crime.

In Bedford, our decision was based upon unique circumstances. Although the
estranged husband in Bedford testified on behalf of the State, his
testimony simply showed that the victim went to a bar on the day of the
murder, after which he never saw the victim again. 269 Kan. at 319-321.
There was apparently no testimony by him in any way connecting the
defendant to the murder and thus little need to question his credibility.

Having concluded the district court erred in entering an order in limine,
we turn to the issue of whether the exclusion of the third-party evidence
violated Marsh's fundamental right to a fair trial. We will not unduly
extend the length of this opinion with an exhaustive review of the
evidence proffered by Marsh that tended to connect Pusch to the crime. The
fact is the district court misconstrued the third-party evidence rule and
did not determine whether the proffered evidence was otherwise admissible
under the rules of evidence. Clearly, much of the evidence sought to be
introduced demonstrated more than mere motive, and we are not prepared to
say beyond a reasonable doubt that the district court's error had little,
if any, likelihood of altering the jury's determination that Marsh
committed capital murder. See Chapman v. California, 386 U.S. 18, 23-24,
17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). Upon remand, the district court
must carefully consider the relevancy of each "piece" of challenged
evidence to avoid prejudicing Marsh's right to present his theory of
defense.

We conclude a new trial must be ordered for the crimes of capital murder
and aggravated arson.

CONSTITUTIONALITY OF K.S.A. 21-4624(e)

At the penalty phase of Marsh's trial, the district court's jury
instructions and verdict forms followed the language of K.S.A. 21-4624(e)
by requiring a death sentence if the jury found aggravating circumstances
were not outweighed by mitigating circumstances. The governing statute
reads:

"If, by unanimous vote, the jury finds beyond a reasonable doubt that one
or more of the aggravating circumstances enumerated in K.S.A. 21-4625 and
amendments thereto exist and, further, that the existence of such
aggravating circumstances is not outweighed by any mitigating
circumstances which are found to exist, the defendant shall be sentenced
to death; otherwise, the defendant shall be sentenced as provided by law."
K.S.A. 21-4624(e).

Under the authority of this provision, Marsh's jury was directed that a
tie must go to the State. In the event of equipoise, i.e., the jury's
determination that the balance of any aggravating circumstances and any
mitigating circumstances weighed equal, the death penalty would be
required.

Since Marsh's sentencing proceeding, we decided State v. Kleypas, 272 Kan.
894, 40 P.3d 139 (2001).

In Kleypas, we first held that the weighing equation in K.S.A. 21-4624(e)
as written was unconstitutional under the Eighth and Fourteenth
Amendments. We avoided striking the statute down as unconstitutional on
its face only by construing it to mean the opposite of what it said, i.e.,
to require aggravating circumstances to outweigh mitigating circumstances.
272 Kan. 894, Syl.   45-48. This reasoning compelled us to vacate Kleypas'
death sentence and remand the case for reconsideration of the death
penalty under proper instructions on the weighing equation. 272 Kan. 894,
Syl.  49.

In Kleypas, after the majority determined that K.S.A. 21-4624(e) as
written violated the Eighth and Fourteenth Amendments, it added:

"Our decision does not require that we invalidate K.S.A. 21-4624 or the
death penalty itself. We do not find K.S.A. 21-4624(e) to be
unconstitutional on its face, but rather, we find that the weighing
equation impermissibly mandates the death penalty when the jury finds that
the mitigating and aggravating circumstances are in equipoise." 272 Kan.
at 1016.

"The legislative intent in passing the death penalty act is obvious.
K.S.A. 21-4624 provides for a death sentencing scheme by which a sentence
of death is imposed for certain offenses. By simply invalidating the
weighing equation and construing K.S.A. 21-4624(e) to provide that if the
jury finds beyond a reasonable doubt that one or more of the aggravating
circumstances enumerated in K.S.A. 21-4625 exists and, further, that such
aggravating circumstance or circumstances outweigh any mitigating
circumstance found to exist, the defendant shall be sentenced to death,
the intent of the legislature is carried out in a constitutional manner.
So construed, we hold that K.S.A. 21-4624 does not violate the Eighth
Amendment prohibition against cruel and unusual punishment. Our holding
requires that this case be remanded for the jury to reconsider imposition
of the death penalty." 272 Kan. at 1018.

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

We agree.

After a discussion of applicable case law, the Kleypas majority succinctly
summarized why K.S.A. 21-4624(e) as written did not comport with the
Eighth and Fourteenth Amendments:

"The legislature cannot mandate a death sentence for any category of
murder. The legislature is limited to defining who is eligible, within
constitutional limits, to receive the death penalty. It is for the jury,
within permissible guidelines, to determine who will live and who will
die. The issue is not whether the penalty of death is per se cruel and
unusual punishment. Furman [v. Georgia, 408 U.S. 238] did not hold that
the death penalty was cruel and unusual punishment per se under the Eighth
Amendment. Here the issue, as that before the Furman court, is whether the
process used to select which defendant will receive the irrevocable
penalty of death 'comports with the basic concept of human dignity at the
core of the [Eighth] Amendment.' Gregg [v. Georgia,] 428 U.S. at 183.

"Is the weighing equation in K.S.A. 21-4624(e) a unique standard to ensure
that the penalty of death is justified? Does it provide a higher hurdle
for the prosecution to clear than any other area of criminal law? Does it
allow the jury to express its 'reasoned moral response' to the mitigating
circumstances? We conclude it does not. Nor does it comport with the
fundamental respect for humanity underlying the Eighth Amendment. Last,
fundamental fairness requires that a 'tie goes to the defendant' when life
or death is at issue. We see no way that the weighing equation in K.S.A.
21-4624(e), which provides that in doubtful cases the jury must return a
sentence of death, is permissible under the Eighth and Fourteenth
Amendments." 272 Kan. at 1015-16.

In dissent, Justice Davis disagreed with the majority's holding that the
weighing equation as written in K.S.A. 21-4624(e) was unconstitutional.
272 Kan. at 1125. Chief Justice McFarland joined in the dissent, and
Justice Abbott, writing separately, concurred with Justice Davis. 272 Kan.
at 1136.

Since Kleypas was decided, there have been no persuasive Eighth or
Fourteenth Amendment cases helpful to a resolution of the facial
constitutionality questions. Although Ring v. Arizona, 536 U.S. 584, 153
L. Ed. 2d 556, 122 S. Ct. 2428 (2002), overruled Walton v. Arizona, 497
U.S. 639, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990), which had been relied
upon by the Kleypas majority, it did so only on a distinct point of law,
i.e., whether a jury or a judge must make the findings required on
aggravating and mitigating circumstances.

In their dissents today, Justices Davis and Nuss nevertheless revisit the
constitutionality of K.S.A. 21-4624(e) as written. They, joined by Chief
Justice McFarland, argue first that equipoise will be rare. We cannot know
this.

Second, they focus on cases that predate Walton and analyze distinct
statutory language, asserting these decisions mean the Constitution
guarantees capital defendants only an opportunity to have mitigating
evidence considered by the jury. These cases, obviously, do not control.

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

This brings us to the next issue: whether Kleypas properly construed the
statute to reverse the effect of equipoise under the weighing equation. As
Justice Davis recently emphasized,

"'it is a fundamental rule of statutory construction, to which all other
rules are subordinate, that the intent of the legislature governs if that
intent can be ascertained. [Citation omitted.] The legislature is presumed
to have expressed its intent through the language of the statutory scheme
it enacted. When a statute is plain and unambiguous, the court must give
effect to the intention of the legislature as expressed, rather than
determine what the law should or should not be. [Citation omitted.] Stated
another way, when a statute is plain and unambiguous, the appellate courts
will not speculate as to the legislative intent behind it and will not
read such a statute so as to add something not readily found in the
statute. [Citation omitted.]'" State ex rel. Graeber v. Marion County
Landfill, Inc., 276 Kan. 328, 339, 76 P.3d 1000 (2003) (quoting In re
Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998).

We also are mindful of additional canons of statutory interpretation
related to constitutional challenges:

"The constitutionality of a statute is presumed, all doubts must be
resolved in favor of its validity, and before the statute may be stricken
down, it must clearly appear the statute violates the constitution. In
determining constitutionality, it is the court's duty to uphold a statute
under attack rather than defeat it, and if there is any reasonable way to
construe the statute as constitutionally valid, that should be done.
Statutes are not stricken down unless the infringement of the superior law
is clear beyond a reasonable doubt. [Citation omitted.]" State v. Engles,
270 Kan. 530, 531, 17 P.3d 355 (2001).

"'"[A] statute apparently void on its face may be constitutional when
limited and construed in such a way as to uphold its constitutionality by
reading the necessary judicial requirements into the statute. This has
often been done when it is clear that such an interpretation will carry
out the intent of the legislature. State v. Motion Picture Entitled 'The
Bet', 219 Kan. 64, 70, 547 P.2d 760 (1976); State v. Gunzelman, 210 Kan.
481, 502 P.2d 705 (1972); State v. Hart, 200 Kan. 153, 434 P.2d 999
(1967)."'" Kleypas, 272 Kan. at 1017.

Applying these two canons in Kleypas, we held that the unconstitutional
weighing equation in K.S.A. 21-4624(e) could be construed to carry out the
legislature's intent to enact a constitutional death penalty statute. 272
Kan. at 1018. This approach is commonly referred to by legal scholars as
the "avoidance doctrine" or the "rule of constitutional doubt."

As articulated by the United States Supreme Court, the rule of
constitutional doubt is that the Supreme Court will not strike down a
statute as unconstitutional if the statute can be construed, in a manner
consistent with the will of Congress, to comport with constitutional
limitations. This rule of constitutional construction was described as
follows in Almendarez-Torres v. United States, 523 U.S. 224, 238, 140 L.
Ed. 2d 350, 118 S. Ct. 1219 (1998):

"'This canon is followed out of respect for Congress, which we assume
legislates in the light of constitutional limitations.' [Citations
omitted.] The doctrine seeks in part to minimize disagreement between the
branches by preserving congressional enactments that might otherwise
founder on constitutional objections. It is not designed to aggravate that
friction by creating (through the power of precedent) statutes foreign to
those Congress intended, simply through fear of a constitutional
difficulty that, upon analysis, will evaporate. Thus, those who invoke the
doctrine must believe that the alternative is a serious likelihood that
the statute will be held [to be] unconstitutional. Only then will the
doctrine serve its basic democratic function of maintaining a set of
statutes that reflect, rather than distort, the policy choices that
elected representatives have made. For similar reasons, the statute must
be genuinely susceptible to two constructions after, and not before, its
complexities are unraveled. Only then is the statutory construction that
avoids the constitutional question a 'fair' one."

In short, the United States Supreme Court is willing to exercise its power
to construe statutes in a constitutional manner to save a legislative
enactment rather than strike it down. However, both the United States
Supreme Court and this court have acknowledged that the power to construe
away constitutional infirmity is limited. "'Statutes should be construed
to avoid constitutional questions, but this interpretative canon is not a
license for the judiciary to rewrite language enacted by the
legislature.'" Salinas v. United States, 522 U.S. 52, 59-60, 139 L. Ed. 2d
352, 118 S. Ct. 469 (1997). "We cannot press statutory construction 'to
the point of disingenuous evasion' even to avoid a constitutional
question." United States v. Locke, 471 U.S. 84, 96, 85 L. Ed. 2d 64, 105
S. Ct. 1785 (1985). The maxim cannot apply where the statute itself is
unambiguous. United States v. Oakland Cannabis Buyers' Cooperative, 532
U.S. 483, 494, 149 L. Ed. 2d 722, 121 S. Ct. 1711 (2001).

Our formulation of the avoidance doctrine is similar to that of the
federal courts. In State v. Durrant, 244 Kan. 522, 534, 769 P.2d 1174
(1989), we stated:

"This court not only has the authority, but also the duty, to construe a
statute in such a manner that it is constitutional if the same can be done
within the apparent intent of the legislature in passing the statute. To
accomplish this purpose the court may read the necessary judicial
requirements into the statute."

These cases make plain that the avoidance doctrine is applied
appropriately only when a statute is ambiguous, vague, or overbroad. The
doctrine is not an available tool of statutory construction if its
application would result in rewriting an unambiguous statute. The court's
function is to interpret legislation, not rewrite it. State v. Beard, 197
Kan. 275, 278, 416 P.2d 783 (1966); Patrick v. Haskell County, 105 Kan.
153, 181 Pac. 611 (1919).

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

Moreover, the Kleypas court's rationale for the rewriting of K.S.A.
21-4624(e) rested entirely upon the premise that the legislature intended
to pass a death penalty statute that was constitutional. 272 Kan. at 1018.
This begged the question of whether the legislature actually succeeded in
doing so. It also constituted an insufficient justification for
application of the avoidance doctrine to an unambiguous statute. Such
construction by any other name is a usurpation of the legislative
prerogative. See Beard, 197 Kan. at 278; see also People v. LaValle, 3
N.Y. 3d 88, 817 N.E. 2d 341 (2004) (state's highest court cannot rewrite
unconstitutional death penalty provision; it lacks legislative power to
fill void left by elimination of invalid provision).

This point was not lost upon Justice Davis in his Kleypas dissent. His
explanation was, and still is, persuasive:

"The majority reverses the weighing equation adopted by the legislature in
K.S.A. 21-4624(e) with the idea that the intent of the legislature is to
be carried out in a constitutional manner. There is no question, based on
the express language of the legislature, that it intended to mandate the
imposition of a death sentence where the existence of such aggravating
circumstances is not outweighed by any mitigating circumstances found to
exist. The precise question was brought to the attention of the
legislature in testimony by the attorney general, who recommended that the
statute provide for the aggravating circumstances to outweigh the
mitigating circumstances before a death sentence may be imposed. The
legislature rejected that suggestion of the attorney general and adopted
our present statute.

"The majority, however, replaces the express language with its own
language based upon its conclusion that this new language carries out the
intent of the legislature in a constitutional manner. Because the new
language mandated by the majority is contrary to the expressed intent and
language adopted by the legislature in K.S.A. 21-4624(e), I believe the
majority invades the province of the legislature. In the face of a clearly
expressed legislative intent, the majority not only strikes this clear
language as unconstitutional but adopts language exactly the opposite of
what the legislature stated. If the language of the statute offends the
Constitution, the appropriate judicial solution, in my opinion, is to so
hold and let the legislature resolve the matter consistent with the
court's opinion." 272 Kan. at 1124-25.

We agree with Justice Davis' reasoning and conclusion that the Kleypas
majority erred in substituting a weighing equation with exactly the
opposite effect of the equation provided by the legislature. The holding
eviscerated the legislature's clear and unambiguous intent regarding
equipoise and thus overstepped the judiciary's authority to interpret
legislation rather than make it. Chief Justice McFarland's dissent, which
argues that the legislature apparently did not mind the interference
misses the point. (It also reads too much into its inaction when the court
had removed its incentive to act.) Justice Davis had it exactly right: The
appropriate, limited judicial response to the problem identified for the
first time in Kleypas was to hold K.S.A. 21-4624(e) unconstitutional on
its face and let the legislature take such further action as it deemed
proper.

This was especially true given the legislative history. As the Kleypas
majority observed:

"It is important to note that on March 14, 1995, the attorney general
analyzed the statute and recommended in the House Judiciary Committee of
the Kansas Legislature that the statute be amended to require that
aggravating circumstances outweigh mitigating circumstances, stating: "Now
if they are equal, 'tie' goes to state. We're proposing 'tie' goes to
defense . . . ." Unfortunately, the legislature did not follow the
attorney general's recommendation." Kleypas, 272 Kan. at 1014-15.

In Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 564 (S.D.N.Y. 2002),
the bedrock principle of separation of powers in our tripartite form of
government was at issue and eloquently explained. Padilla, an American
citizen, was being held by the United States as an "enemy combatant"
associated with Al Qaeda at a naval brig in South Carolina. He filed a
habeas petition, relying primarily upon 18 U.S.C.  4001(a) (2000), which
provides: "No citizen shall be imprisoned or otherwise detained by the
United States except pursuant to an Act of Congress." In support of its
motion to dismiss, the Government argued a literal reading of 18 U.S.C.
4001(a) would conflict with Article II, section 2, clause 1 of the
Constitution, which makes the President of the United States "Commander in
Chief of the Army and Navy of the United States."

In rejecting the government's argument, the court stated:

"The government suggests that because reading the statute to impinge on
the President's Article II powers, including detention of enemy
combatants, creates a danger that the statute might be found
unconstitutional as applied to the present case, a court should read the
statute so as not to cover detention of enemy combatants, applying the
canon that a statute should be read so as to avoid constitutional
difficulty. See, e.g., Jones v. United States, 529 U.S. 848, 857, 120 S.
Ct. 1904, 146 L. Ed. 2d 902 (2000) (citing 'the guiding principle that
"where a statute is susceptible of two constructions, by one of which
grave and doubtful constitutional questions arise and by the other of
which such questions are avoided, our duty is to adopt the latter."')
(quoting United States ex rel. Attorney General v. Delaware & Hudson Co.,
213 U.S. 366, 408, 29 S. Ct. 527, 53 L. Ed. 836 (1909)).

"However, this doctrine of constitutional avoidance '"has no application
in the absence of statutory ambiguity."' HUD v. Rucker, 535 U.S. 125, 122
S. Ct. 1230, 1235, 152 L. Ed. 2d 258 (2002) (quoting United States v.
Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 494, 121 S. Ct. 1711,
149 L. Ed. 2d 722 (2001)). Any other approach, as pointed out in Rucker,
'"while purporting to be an exercise in judicial restraint, would trench
upon the legislative powers vested in Congress by Art. I,  1, of the
Constitution."' Id. at 1235-36 (quoting United States v. Albertini, 472
U.S. 675, 680, 105 S. Ct. 2897, 86 L. Ed. 2d 536 (1985)). That is, if a
court read an ambiguity into an unambiguous statute simply for the purpose
of avoiding an adverse decision as to the constitutionality of that
statute, the court would be exercising legislative powers and thereby
usurping those powers. There is no ambiguity here. The plain language of
the statute encompasses all detentions of United States citizens.
Therefore, the constitutional avoidance canon cannot affect how the
statute is read." 233 F. Supp. 2d at 597.

Our holding that K.S.A. 21-4624(e) is unconstitutional on its face
presumptively requires that we overrule that portion of Kleypas upholding
the statute through application of the avoidance doctrine. The only
contrary argument left for our consideration is that the doctrine of stare
decisis should prevent us from doing so.

In Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 356, 789 P.2d
541(1990), overruled on other grounds Bair v. Peck, 248 Kan. 824, 811 P.2d
1176 (1991), we stated:

"It is recognized under the doctrine of stare decisis that, once a point
of law has been established by a court, that point of law will generally
be followed by the same court and all courts of lower rank in subsequent
cases where the same legal issue is raised. Stare decisis operates to
promote system-wide stability and continuity by ensuring the survival of
decisions that have been previously approved by this court. . . . The
application of stare decisis ensures stability and continuity
demonstrating a continuing legitimacy of judicial review. Judicial
adherence to constitutional precedent ensures that all branches of
government, including the judicial branch, are bound by law.

". . . The general American doctrine as applied to courts of last resort
is that a court is not inexorably bound by its own precedents but will
follow the rule of law which it has established in earlier cases, unless
clearly convinced that the rule was originally erroneous or is not longer
sound because of changing conditions and that more good than harm will
come by departing from precedent."

This is consistent with the United States Supreme Court's 2003 decision in
Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508, 525, 123 S. Ct. 2472
(2003), in which the Court overruled its 1986 decision in Bowers v.
Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841 (1986). The
Court stated:

"The doctrine of stare decisis is essential to the respect accorded to the
judgments of the Court and to the stability of the law. It is not,
however, an inexorable command. Payne v. Tennessee, 501 U.S. 808, 828, 115
L. Ed.2d 720, 111 S. Ct. 2597 (1991) ('Stare decisis is not an inexorable
command; rather, it "'is a principle of policy and not a mechanical
formula of adherence to the latest decision, [however recent and
questionable, when such adherence involves collision with a prior doctrine
more embracing in its scope, intrinsically sounder, and verified by
experience]'" (quoting Helvering v. Hallock, 309 U.S. 106, 119, 84 L. Ed.
604, 60 S. Ct. 444 (1940))." 539 U.S. at 577.

Similarly, in Ring, 536 U.S. 584, the Court observed that, "[a]lthough
'"the doctrine of stare decisis is of fundamental importance to the rule
of law[,]" . . . [o]ur precedents are not sacrosanct.' Patterson v. McLean
Credit Union, 491 U.S. 164, 172 (1989), (quoting Welch v. Texas Dept. of
Highways and Public Transp., 483 U.S. 468, 494 (1987). '[W]e have
overruled prior decisions where the necessity and propriety of doing so
has been established.' 491 U.S. at 172."

In particular, the United States Supreme Court has frequently emphasized
that stare decisis has less persuasive force in constitutional
adjudication. As Justice Scalia stated in Vieth v. Jubelirer, 541 U.S.
267, ___, 158 L. Ed 2d 546, 124 S. Ct. 1769, 1792 (2004), which overturned
precedent concerning congressional redistricting:

"Considerations of stare decisis do not compel us to allow Bandemer to
stand. That case involved an interpretation of the Constitution, and the
claims of stare decisis are at their weakest in that field, where our
mistakes cannot be corrected by Congress. See Payne v. Tennessee, 501 U.S.
808, 828, 111 S. Ct. 2697, 115 L. Ed. 2d 720 (1991). They are doubly weak
in Bandemer because the majority's inability to enunciate the judicially
discernible and manageable standard that it thought existed (or did not
think did not exist) presaged the need for reconsideration in light of
subsequent experience. And they are triply weak because it is hard to
imagine how any action taken in reliance upon Bandemer could conceivably
be frustrated--except the bringing of lawsuits, which is not the sort of
primary conduct that is relevant.

"While we do not lightly overturn one of our own holdings, 'when governing
decisions are unworkable or are badly reasoned, "'this Court has never
felt constrained to follow precedent.'" Id., at 827, 111 S. Ct. 2597
(quoting Smith v. Allwright, 321 U.S. 649, 665, 64 S. Ct. 757, 88 L. Ed.
2d 987 (1944)). Eighteen years of essentially pointless litigation have
persuaded us that Bandemer is incapable of principled application. We
would therefore overrule that case, and decline to adjudicate these
political gerrymandering claims." 541 U.S. at ___, 158 L. Ed. 2d at
575-76. See also Harris v. United States, 536 U.S. 545, 581, 153 L. Ed. 2d
524, 122 S. Ct. 2406 (2002) (Thomas, J., dissenting) (when court "has
wrongly decided a constitutional question, the force of stare decisis is
at its weakest"; relative recency of rule also weakens precedential
value).

Furthermore, a rule not previously subjected to "full-dress argument" is
rightly examined more closely before it is applied a second time. See
Church of the Lukumi Babalu Aye, Inc., v. City of Hialeah, 508 U.S. 520,
571, 124 L. Ed. 2d 472, 113 S. Ct. 2217 (1993). Such should be the case
with our sua sponte application of the avoidance doctrine in Kleypas.
Although we should not casually discard precedent, neither should we shy
away from admitting "'when governing decisions are unworkable or are badly
reasoned.'" United States v. Dixon, 509 U.S. 688, 712, 125 L. Ed. 2d 556,
113 S. Ct. 2849 (1993) (citing Payne v. Tennessee, 501 U.S. at 827).

The Chief Justice's dissent focuses on factors listed by Justice O'Connor
in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 120 L.
Ed. 2d 674, 112 S. Ct. 2791 (1992), "prudential and pragmatic
considerations designed to test the consistency of overruling a prior
decision with the ideal of the rule of law, and to gauge the respective
costs of reaffirming and overruling a prior case." 505 U.S. at 854-55. But
Justice O'Connor explicitly labeled "examples." Any exhaustive list of
such considerations necessarily would also include whether the court now
recognizes that its earlier ruling was incorrect, unwise, or did violence
to the roles assigned the various branches of government.

We conclude that the second holding of Kleypas--that the equipoise
provision could be rescued by application of the avoidance doctrine--is
not salvageable under the doctrine of stare decisis. That holding of
Kleypas is overruled. Stare decisis is designed to protect well settled
and sound case law from precipitous or impulsive changes. It is not
designed to insulate a questionable constitutional rule from thoughtful
critique and, when called for, abandonment. This is especially true in a
situation like the one facing us here. Kleypas' application of the
avoidance doctrine was not fully vetted. It is young and previously
untested. Its rewriting of K.S.A. 21-4624(e) was not only clearly
erroneous; as a constitutional adjudication, it encroached upon the power
of the legislature.

Our decision today to confine the application of the avoidance doctrine to
appropriate circumstances recognizes the separation of powers and the
constitutional limitations of judicial review and rightfully looks to the
legislature to resolve the issue of whether the statute should be
rewritten to pass constitutional muster. This is the legislature's job,
not ours. This decision does more in the long run to preserve separation
of powers, enhance respect for judicial review, and further predictability
in the law than all the indiscriminate adherence to stare decisis can ever
hope to do.

HARD 40 SENTENCE  SUFFICIENCY

Marsh contends there was insufficient evidence to support the district
court's finding of aggravating circumstances not outweighed by mitigating
circumstances. See K.S.A. 2003 Supp. 21-4635. Where the sufficiency of the
evidence is challenged for establishing the existence of an aggravating
circumstance in a hard 40 proceeding, the standard of review to be applied
is whether, after reviewing all the evidence, viewed in the light most
favorable to the State, a rational factfinder could have found the
existence of the aggravating circumstances by a preponderance of the
evidence.

In imposing the hard 40, the district court found the same aggravators as
did the jury in imposing the death penalty: (1) the defendant knowingly or
purposely killed or created a great risk of death to more than one person;
(2) the killing was especially heinous, atrocious, or cruel; and (3) the
killing was committed in order to avoid or prevent a lawful arrest or
prosecution. Further, in applying the weighing equation as required in
K.S.A. 2003 Supp. 21-4635, the district judge stated:

"I believe that these aggravating factors, each one individually--that you
wouldn't necessarily need to take the three of them as a whole
combined--that any one of those three are sufficient to outweigh any
mitigating circumstances in this case regarding the death of [Marry],
which would require the imposition of the maximum penalty." (Emphasis
added.)

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

We conclude, based upon the district court's statement, that any one of
the aggravating circumstances was not outweighed by mitigating
circumstances. The district court's imposition of the hard 40 sentence is
upheld. See State v. Lopez, 271 Kan. 119, 141, 22 P.3d 1040 (2001)
(stating the district court's weighing of aggravating and mitigating
circumstances is within its sound discretion and will not be disturbed on
appeal absent an abuse of discretion.)

HARD 40 SENTENCE  CONSTITUTIONALITY

Marsh argues the Kansas hard 40 sentencing scheme is unconstitutional
because K.S.A. 2003 Supp. 21-4635 does not require aggravating
circumstances to be submitted to a jury and proved beyond a reasonable
doubt. He contends State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000),
cert. denied 532 U.S. 932 (2001), should be overruled.

This argument was not made to the district court. Normally, constitutional
grounds asserted for the first time are not properly before this court for
review. State v. Shears, 260 Kan. 823, 837, 925 P.2d 1136 (1996). However,
we have long recognized three exceptions to this rule: (1) where the newly
asserted claim involves only a question of law arising on proved or
admitted facts and determinative of the case; (2) where consideration of
the claim is necessary to serve the ends of justice or to prevent the
denial of fundamental rights; and (3) where the district court is right
for the wrong reason. See Pierce v. Board of County Commissioners, 200
Kan. 74, 80-81, 434 P.2d 858 (1967). Here, the issue raised by Marsh
requires we address only a question of law.

In Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct.
2348 (2000), the United States Supreme Court held "[o]ther than the fact
of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt." 530 U.S. at 490. In Conley, we held the
hard 40 sentencing scheme did not increase the statutory maximum, but
rather simply set a statutory minimum. See 270 Kan. at 33-34. We also
concluded our holding was consistent with the United States Supreme
Court's pronouncement in McMillan v. Pennsylvania, 477 U.S. 79, 88-89, 91
L. Ed. 2d 67, 106 S. Ct. 2411 (1986). In McMillan, the Court held a
judicial finding of aggravating factors that only raises the minimum
sentence that may be imposed by the district court was permissible. 477
U.S. at 89.

Marsh argues the United States Supreme Court's ruling in Ring v. Arizona,
536 U.S. 584, requires us to reverse our holding in Conley. We disagree.
In State v. Boldridge, 274 Kan. 795, 57 P.3d 8 (2002), this court
addressed a constitutional challenge to the hard 50 sentencing scheme
under K.S.A. 2001 Supp. 21-4635. The court noted the defendant's reliance
on Ring but found no reason to alter its reasoning and holdings in State
v. Douglas, 274 Kan. 96, 49 P.3d 446 (2002), Conley, and State v.
Boorigie, 273 Kan. 18, 41 P.3d 764 (2002). Boldridge, 274 Kan. at 812.

Additionally, Marsh contends we misread McMillan in deciding Conley. This
is not a novel argument. We have consistently declined to overrule Conley
and have rejected the argument that our reliance on McMillan was
misplaced. See State v. Albright, 273 Kan. 811, 826-27, 46 P.3d 1167
(2002). The decision in Harris v. United States, 536 U.S. 545, 153 L. Ed.
2d 524, 122 S. Ct. 2406 (2002), decided the same day as Ring, reaffirms
the continuing validity of McMillan. In Harris, the Supreme Court
considered Apprendi but held that increasing a defendant's minimum
sentence based upon a judge's finding that a weapon was brandished did not
violate the Fifth or Sixth Amendments. Harris, 536 U.S. at 568.

For the foregoing reasons, we reject Marsh's argument that Conley was
wrongly decided and should be overruled.

CONCLUSION

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

We affirm Marsh's convictions and sentences for aggravated burglary and
the premeditated murder of Marry; we reverse and remand for new trial
Marsh's convictions for the capital murder of M.P. and aggravated arson.

DAVIS, J., dissenting: I respectfully dissent from the majority's holding
that the weighing equation in K.S.A. 21-4624(e) is unconstitutional on its
face. In my opinion, K.S.A. 21-4624(e) was constitutional when it was
passed by the Kansas Legislature and remains constitutional today.

The majority holds that the Kansas death penalty is unconstitutional on
its face under the Eighth Amendment to the United States Constitution.
According to the majority, the offending provision lies in the following
weighing equation found in K.S.A. 21-4624(e):

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

In State v. Kleypas, 272 Kan. 894, 40 P.3d 139 (2001), the majority held
that the above weighing equation was unconstitutional but attempted to
salvage the death penalty by rewriting the equation language to provide
that the aggravating circumstances must outweigh the mitigating
circumstances before death may be imposed. The majority today holds that
the attempt in Kleypas was erroneous and that the entire death penalty is
unconstitutional under the Eighth Amendment.

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

I begin with the majority's conclusion that in order for the death penalty
to be constitutional in Kansas, a tie in the aggravating circumstances and
mitigating circumstances must go to the defendant under the Eighth
Amendment. I agree with the majority that the Kansas Legislature
consciously chose the weighing equation but strongly disagree that the
language used is unconstitutional under the Eighth Amendment. I may
personally disagree with the legislature's policy decision that a tie goes
to the State but I cannot conclude that its enactment is unconstitutional
because of that language unless the United States Constitution, as
interpreted by the United States Supreme Court, supports such a
conclusion. An analysis of the United States Supreme Court jurisprudence,
as well as other decisions addressing this point, does not support such a
conclusion and, in fact, supports the opposite conclusion.

As a prelude to my analysis, I think it is important to stress just how
unlikely it is that the "tie" envisioned by the majority would ever occur.
First, before the weighing equation is even implicated, it must be proven
beyond a reasonable doubt that the defendant is guilty of the crime of
capital murder. Thus, for the defendant to even be eligible for the death
penalty, a jury must find the existence of one or more of the following
factors that make the murder committed more serious then even first-degree
murder: (1) the intentional and premeditated killing of any person in the
commission of kidnapping or aggravated kidnapping with the intent of
holding such person for ransom; (2) the intentional and premeditated
killing of any person pursuant to contract or agreement; (3) the
intentional and premeditated killing of any person by an inmate or
prisoner; (4) the intentional and premeditated killing of the victim of
rape, criminal sodomy, or aggravated criminal sodomy; (5) the intentional
and premeditated killing of a law enforcement officer; (6) the intentional
and premeditated killing of more than one person as a part of the same act
or transaction or in two or more acts or transactions connected together
or constituting parts of a common scheme or course of conduct; or (7) the
intentional and premeditated killing of a child under the age of 14 in the
commission of kidnapping or aggravated kidnapping where such crime was
committed with the intent to commit a sex offense upon or with the child
or with intent that the child commit or submit to a sex offense. See
K.S.A. 21-3439.

Once the defendant has been convicted of capital murder, he or she is
death eligible. However, the death sentence may still not be imposed
without a consideration of an additional set of aggravating circumstances
and a consideration of mitigating circumstances. The aggravating
circumstances are set forth in K.S.A. 21-4625, as follows:

"(1) The defendant was previously convicted of a felony in which the
defendant inflicted great bodily harm, disfigurement, dismemberment or
death on another.

"(2) The defendant knowingly or purposely killed or created a great risk
of death to more than one person.

"(3) The defendant committed the crime for the defendant's self or another
for the purpose of receiving money or any other thing of monetary value.

"(4) The defendant authorized or employed another person to commit the
crime.

"(5) The defendant committed the crime in order to avoid or prevent a
lawful arrest or prosecution.

"(6) The defendant committed the crime in an especially heinous, atrocious
or cruel manner.

"(7) The defendant committed the crime while serving a sentence of
imprisonment on conviction of a felony.

"(8) The victim was killed while engaging in, or because of the victim's
performance or prospective performance of, the victim's duties as a
witness in a criminal proceeding."

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

A nonexclusive list of mitigating circumstances that a defendant may
present to the jury are set out in K.S.A. 2003 Supp. 21-4626:

"(1) The defendant has no significant history of prior criminal activity.

"(2) The crime was committed while the defendant was under the influence
of extreme mental or emotional disturbance.

"(3) The victim was a participant in or consented to the defendant's
conduct.

"(4) The defendant was an accomplice in the crime committed by another
person, and the defendant's participation was relatively minor.

"(5) The defendant acted under extreme distress or under the substantial
domination of another person.

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

"(7) The age of the defendant at the time of the crime.

"(8) At the time of the crime, the defendant was suffering from
post-traumatic stress syndrome caused by violence or abuse by the victim."

As stated above, these mitigating circumstances are nonexclusive. Thus,
the jury is instructed that mitigating circumstances it may consider also
include that "[a] term of imprisonment is sufficient to defend and protect
the people's safety from the defendant" as well as "any other aspect of
the defendant's character, background or record, and any other aspect of
the offense which was presented in either the guilt or penalty phase which
you find may serve as a basis for imposing a sentence less than death."
See PIK Crim. 56.00-D (2003 Supp.).

Note again the serious nature of the mitigating circumstances and the fact
that there is no limit on mitigating circumstances that a defendant may
present to the jury. Also note that the defendant is not required to prove
these circumstances beyond a reasonable doubt.

For example, assume that a defendant kills a witness who was to testify
against him in his upcoming criminal trial (aggravating circumstance).
Assume further that the defendant is 19 years old at the time, came from a
broken home, was abused as a child, and has no significant past criminal
history (mitigating circumstances). Once the prosecution has presented
evidence of the aggravating circumstance(s) and the defendant has
presented as much mitigating evidence as he wishes to the jury, it is now
up to the jury to determine whether to impose the death sentence. Under
our law, if the mitigating circumstances outweigh the aggravating
circumstance(s) death cannot be imposed. If aggravating circumstances
outweigh mitigating circumstances death is imposed. Before deliberations,
the jury is instructed similar to the following:

1. If the jury unanimously finds beyond a reasonable doubt that the
aggravating factor exists, and that the aggravating factor outweighs the
mitigating circumstances found to exist, the sentence is death.

2. If the jury unanimously finds beyond a reasonable doubt that the
aggravating factor exists, and that the mitigating circumstances found to
exist outweigh the aggravating circumstance, a prison sentence is the
sentence.

3. If the jury unanimously finds beyond a reasonable doubt that the
aggravating factor exists, and that the aggravating factor is not
outweighed by any mitigating circumstances found to exist (this would
include situations where aggravating factor and mitigating circumstances
are equal), the defendant is sentenced to death.

Each member of the jury then decides whether the aggravating factor has
been proven beyond a reasonable doubt. Unless the jury unanimously
concludes that at least one aggravating factor has been proven, death
cannot be imposed. Once an aggravating factor has been proven, each juror
decides what weight to give that aggravating factor and then what weight
to give the mitigating factors. The total weight of the aggravating factor
and the mitigating factors are then compared. In order to impose death,
each member of the jury must find that the aggravating factor is not
outweighed by the mitigating factors. If even one member of the jury finds
that the aggravating factor is outweighed by the mitigating factors, then
the defendant cannot be sentenced to death. Further, as noted above, the
jury is not limited on what mitigating evidence it can consider. Thus,
even if a juror in our example determines that the mitigating
circumstances offered by the defendant, i.e., that he was 19 years old at
the time, came from a broken home, was abused as a child, and has no
significant criminal history, are insufficient to outweigh the aggravating
factor, that juror still does not have to vote for death if there is any
other circumstance or circumstances which in the juror's mind pushes the
weight of the mitigating circumstances past the aggravating circumstance.
Such circumstances can include the juror's feeling that life in prison is
a sufficient sentence or simply that the defendant does not deserve to
die.

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

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

There is no question that the Eighth Amendment imposes several
requirements with regard to capital sentencing. First, states are required
to limit and channel the discretion of judges and juries "so as to
minimize the risk of wholly arbitrary and capricious action." Gregg v.
Georgia, 428 U.S. 153, 189, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976). In
order for a capital sentencing scheme to pass constitutional muster, it
must "genuinely narrow the class of persons eligible for the death penalty
and must reasonably justify the imposition of a more severe sentence on
the defendant compared to others found guilty of murder." Zant v.
Stephens, 462 U.S. 862, 877, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983).

The Kansas Death Penalty Act narrows the class of persons eligible for the
death penalty in two ways. First, it requires a conviction of capital
murder for death penalty eligibility rather than simply applying the death
penalty to all first-degree murders. Second, it narrows that eligibility
even further through the weighing of aggravating and mitigating factors
during the penalty phase. Thus, the Kansas Legislature has limited and
channeled the discretion of judges and juries "so as to minimize the risk
of wholly arbitrary and capricious action" in accord with Gregg v.
Georgia.

Further, even though the Eighth Amendment requires that jury discretion be
guided, it also requires that the sentencer be allowed to retain
sufficient discretion to consider all relevant mitigating evidence, so
that it can ensure that "'death is the appropriate punishment in a
specific case.'" Lockett v. Ohio, 438 U.S. 586, 601, 57 L. Ed. 2d 973, 98
S. Ct. 2954 (1978) (quoting Woodson v. North Carolina, 428 U.S. 280, 305,
49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976). To this end, the sentencer cannot
"be precluded from considering, as a mitigating factor, any aspect of a
defendant's character or record and any of the circumstances of the
offense that the defendant proffers as a basis for a sentence less than
death." Lockett, 438 U.S. at 604. Further, the sentencer must be able to
"give effect" to this evidence. Penry v. Lynaugh, 492 U.S. 302, 328, 106
L. Ed. 2d 256, 109 S. Ct. 2934 (1989). Again, it must be noted that Kansas
lists eight important mitigating circumstances and puts no limit on the
number of such circumstances a defendant may present. The jury is
instructed that it must consider and give effect to this evidence.

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

In enacting its death penalty statute, Kansas has chosen to follow the
Florida system, which provides for aggravating circumstances which are
then weighed against any mitigators found to exist as set forth above. See
Stringer v. Black, 503 U.S. 222, 229-231, 117 L. Ed. 2d 367, 112 S. Ct.
1130 (1992). The Supreme Court held that the Florida system satisfied
constitutional requirements in Proffitt v. Florida, 428 U.S. 242, 49 L.
Ed. 2d 913, 96 S. Ct. 2960 (1976).

In states which follow the Florida system, i.e. "weighing states,"
questions have arisen over the composition of the weighing equation. The
Supreme Court answered those questions in a series of three cases:
Blystone v. Pennsylvania, 494 U.S. 299, 108 L. Ed. 2d 255, 110 S. Ct. 1078
(1990); Boyde v. California, 494 U.S. 370, 108 L. Ed. 2d 316, 110 S. Ct.
1190 (1990); and Walton v. Arizona, 497 U.S. 639, 111 L. Ed. 2d 511, 110
S. Ct. 3047 (1990), overruled on other grounds Ring v. Arizona, 536 U.S.
584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002).

In Blystone, the question was whether having a mandatory weighing equation
which required death where the jury found that the aggravating
circumstances outweighed the mitigating circumstances violated the
Constitution. The argument was that this mandatory penalty somehow
"limited the discretion of the jury" in contravention of Lockett's
requirement that a capital jury be allowed to consider and give effect to
all relevant mitigating evidence. See Blystone, 494 U.S. at 303.

The Supreme Court held that the Pennsylvania scheme satisfied the Lockett
requirement for two reasons. First, the statute did not limit the
mitigating factors that could be taken into account (Kansas does not limit
the mitigating factors). Second, it did not automatically mandate death
upon conviction for certain types of murder (nor does Kansas); rather, it
mandated the imposition of death only after a finding that the aggravating
circumstances outweighed the mitigating circumstances. 494 U.S. at 305-06.
The Supreme Court stated that "[t]he requirement of individualized
sentencing in capital cases is satisfied by allowing the jury to consider
all relevant mitigating evidence." 494 U.S. at 307. Further, the Supreme
Court noted that it was not particularly concerned with the form or
procedure used in establishing weighing equations so long as the
requirement that the jury be allowed to consider and give effect to all
relevant mitigating evidence is satisfied, stating: "Within the
constitutional limits defined by our cases, the States enjoy their
traditional latitude to prescribe the method by which those who commit
murder shall be punished." (Emphasis added.) 494 U.S. at 309.

The next case concerning weighing equations, Boyde v. California,
addressed a similar question with regard to California's weighing
equation, which mandated death upon a jury's finding that the aggravating
circumstances outweigh mitigating circumstances. The Supreme Court in
Boyde, for the same reasons as in Blystone, found the statute
constitutional. In the process, the Supreme Court reiterated that "'[t]he
requirement of individualized sentencing in capital cases is satisfied by
allowing the jury to consider all relevant mitigating evidence'" and
further stated that "there is no . . . constitutional requirement of
unfettered sentencing discretion in the jury, and States are free to
structure and shape consideration of mitigating evidence 'in an effort to
achieve a more rational and equitable administration of the death
penalty.'" 494 U.S. at 377.

Blystone and Boyde stand, therefore, for the proposition that it is not
unconstitutional for a weighing equation to mandate death upon certain
findings, so long as the jury is allowed to consider and give effect to
all relevant mitigating circumstances. They also confirm that a weighing
equation which mandates death upon the jury's finding that aggravating
circumstances outweigh mitigating circumstances satisfies this standard.
They did not, however, address whether other versions of the weighing
equation, specifically the weighing equation used in K.S.A. 21-4624(e),
meet this standard. That question was left for the next "weighing
equation" case, Walton v. Arizona, 497 U.S. 639.

Walton is particularly important to this case because of the similarities
between the weighing equation at issue in Walton and that in K.S.A.
21-4624. The Arizona weighing equation in Walton provided that the
sentencer (in that case, a judge) was to weigh the aggravating
circumstances against the mitigating circumstances and impose death if
there were "no mitigating circumstances sufficiently substantial to call
for leniency." Walton, 497 U.S. at 643-44. Although the words used are
different, Arizona, then and now, has interpreted this weighing equation
to mean exactly the same as the one used in K.S.A. 21-4624(e): Death is
the penalty unless the aggravating circumstances are outweighed by the
mitigating circumstances. See State v. Gretzler, 135 Ariz. 42, 53-55, 659
P.2d 1 (1983); State v. Ysea, 191 Ariz. 372, 375, 956 P.2d 499 (1998)
(stating that "[i]f the judge finds one or more of the aggravating factors
listed in  13-703[F], the defendant is death eligible, and if the
aggravating factors are not outweighed by mitigating factors listed in
13-703[G], the resulting sentence is death"). See also Walton, 497 U.S. at
687 (Blackmun, J., dissenting) (stating that "[t]he Arizona Supreme Court
repeatedly has indicated that a defendant's mitigating evidence will be
deemed 'sufficiently substantial to call for leniency' only if the
mitigating factors 'outweigh' those in aggravation").

Further, one of the issues in Walton was the same equipoise question faced
in Kleypas and now in this case, the validity of the weighing equation
under the Eighth Amendment. See Walton, 497 U.S. at 651-52. In order to
understand the Court's holding on the issue, it is important to note that
Walton reached the Supreme Court in part as the result of a split between
the Arizona Supreme Court and the Ninth Circuit Court of Appeals on the
equipoise issue. In Adamson v. Ricketts, 865 F.2d 1011 (9th Cir. 1988) (en
banc), the Ninth Circuit Court of Appeals held that the Arizona death
penalty scheme was unconstitutional for the same reason the majority
opinion in this case holds the Kansas statute K.S.A. 21-4624(e)
unconstitutional:

"While the statute does require balancing, it nonetheless deprives the
sentencer of the discretion mandated by the Constitution's individualized
sentencing requirement. This is because in situations where the mitigating
and aggravating circumstances are in balance, or, where the mitigating
circumstances give the court reservation but still fall below the weight
of the aggravating circumstances, the statute bars the court from imposing
a sentence less than death. Thus, the presumption can preclude
individualized sentencing as it can operate to mandate a death sentence,
and we note that '[p]resumptions in the context of criminal proceedings
have traditionally been viewed as constitutionally suspect.'" 865 F.2d at
1043-44. (Emphasis added.)

This ruling, however, conflicted with the decision of the Arizona Supreme
Court which summarily upheld the constitutionality of the Arizona death
penalty scheme in State v. Walton, 159 Ariz. 571, 584-85, 769 P.2d 1017
(1989). In order to resolve this split between the two cases, the United
States Supreme Court granted certiorari in Walton. See Walton, 497 U.S. at
647 ("Because the United States Court of Appeals for the Ninth Circuit has
held the Arizona death penalty statute to be unconstitutional for the
reasons submitted by Walton in this case, see Adamson v. Ricketts
[citation omitted], we granted certiorari . . . to resolve the conflict
and to settle issues that are of importance generally in the
administration of the death penalty.").

The Supreme Court of the United States addressed Walton's argument that
because the Arizona statute provided that the court must impose the death
penalty if one or more aggravating circumstances are found and the
mitigating circumstances are insufficient to call for leniency, this
created an unconstitutional presumption that death was the proper
sentence. 497 U.S. at 651-52. The Court rejected this contention, stating:

"Our recent decisions in Blystone v. Pennsylvania [citation omitted] and
Boyde v. California [citation omitted] foreclose this submission. Blystone
rejected a challenge to a jury instruction based on a Pennsylvania statute
requiring the imposition of the death penalty if aggravating circumstances
were found to exist but no mitigating circumstances were present. We
pointed out that '[t]he requirement of individualized sentencing in
capital cases is satisfied by allowing the jury to consider all relevant
mitigating evidence,' [citation omitted] and concluded that because the
Pennsylvania statute did not preclude the sentencer from considering any
type of mitigating evidence, [citation omitted] it was consonant with that
principle. In addition, the Court concluded that the statute was not
'impermissibly "mandatory" as that term was understood' in Woodson v.
North Carolina [citation omitted] and Roberts v. Louisiana [citation
omitted] because it did not automatically impose death upon conviction for
certain types of murder. [Citation omitted.] The same is true of the
Arizona statute.

"Similarly, Boyde v. California, supra, upheld a pattern jury instruction
which stated that '[i]f you conclude that the aggravating circumstances
outweigh the mitigating circumstances, you shall impose a sentence of
death.' [Citation omitted]. The Court specifically noted that 'there is no
. . . constitutional requirement of unfettered sentencing discretion in
the jury, and States are free to structure and shape consideration of
mitigating evidence 'in an effort to achieve a more rational and equitable
administration of the death penalty."' [Citation omitted.]

"Walton's arguments in this case are no more persuasive than those made in
Blystone and Boyde." (Emphasis added.) 497 U.S. at 651-52.

Justices Blackmun, Brennan, Marshall, and Stevens dissented from this
holding, arguing that the fact that the Arizona statute required death if
the aggravating and mitigating circumstances were in equipoise violated
the Eighth Amendment. See 497 U.S. at 687 (Blackmun, J., dissenting). The
dissenting opinion in Walton is the reason the majority in this case holds
K.S.A. 21-4624(e) unconstitutional. Walton, however, rejected the
equipoise argument, holding just the opposite of the majority opinion in
this case.

Walton not only reaffirmed the holdings in Blystone and Boyde that it is
not a violation of the Eighth Amendment to mandate death upon certain
findings, such as that the aggravating factors outweigh the mitigating
factors, but also extended that rationale to a weighing equation such as
that used in Arizona which mandated death unless the mitigating factors
were sufficiently substantial to call for leniency, that is, unless
aggravating factors were not outweighed by the mitigating circumstances.

It is clear to me that the United States Supreme Court's opinion in Walton
answered the equipoise question. The Ninth Circuit certainly thought it
did. In Adamson v. Lewis, 955 F.2d 614, 619 (9th Cir. 1992), it recognized
that Walton overturned its decision in Adamson v. Ricketts regarding the
constitutionality of the Arizona death penalty. The Idaho Supreme Court
also thought so. In State v. Hoffman, 123 Idaho 638, 646-47, 851 P.2d 934
(1993), the Idaho Supreme Court found that under State v. Walton, its
statute which required a defendant to prove mitigating circumstances which
outweighed aggravating circumstances was constitutional. The Illinois
Supreme Court, in a decision which actually predated Walton, cited
Blystone for this same proposition. See People v. Thomas, 137 Ill. 2d 500,
542, 561 N.E.2d 57 (1990).

Cases decided by the United States Supreme Court since Blystone, Boyde,
and Walton have continued with the theme established in those cases. In
Harris v. Alabama, 513 U.S. 504, 512, 130 L. Ed. 2d 1004, 115 S. Ct. 1031
(1995), the Supreme Court, in finding that Alabama's death penalty scheme
was not unconstitutional even though it did not give the judge guidance in
determining whether to accept the jury's advisory verdict, reiterated: "We
have rejected the notion that 'a specific method for balancing mitigating
and aggravating factors in a capital sentencing proceeding is
constitutionally required.'" Similarly, in Buchanan v. Angelone, 522 U.S.
269, 276, 139 L. Ed. 2d 702, 118 S. Ct. 757 (1998), the Court stated:

"In the selection phase, our cases have established that the sentencer may
not be precluded from considering, and may not refuse to consider, any
constitutionally relevant mitigating evidence. [Citations omitted.]
However, the state may shape and structure the jury's consideration of
mitigation so long as it does not preclude the jury from giving effect to
any relevant mitigating evidence. [Citations omitted.] Our consistent
concern has been that restrictions on the jury's sentencing determination
not preclude the jury from being able to give effect to mitigating
evidence.

"But we have never gone further and held that the state must affirmatively
structure in a particular way the manner in which juries consider
mitigating evidence." (Emphasis added.)

Given the United States Supreme Court's continued insistence that the
Constitution does not require a specific method for balancing aggravating
and mitigating circumstances, and its specific approval of Arizona's
weighing equation which is identical in practice to that in K.S.A.
21-4624(e), I find it difficult to understand how the majority comes to
its conclusion that K.S.A. 21-4624(e) is unconstitutional on its face.
Certainly, the conclusion cannot come from the cases which have addressed
the subject. The few cases from other jurisdictions which might lend
support the majority's conclusion are entirely unpersuasive.

Besides our opinion in Kleypas, a weighing equation such as the one used
in K.S.A. 21-4624(e) has been declared unconstitutional in only four
cases: the aforementioned Ninth Circuit opinion in Adamson v. Ricketts,
865 F.2d 1011; Hulsey v. Sargent, 868 F. Supp. 1090 (E.D. Ark. 1993);
People v. Young, 814 P.2d 834 (Colo. 1991); and State v. Biegenwald, 106
N.J. 13, 524 A.2d 130 (1987). The circumstances of each of these cases,
however, give them little weight.

First, Adamson, as the Ninth Circuit Court recognized, was abrogated by
the Supreme Court's opinion in Walton v. Arizona. See Adamson v. Lewis,
955 F.2d at 619. This abrogation also causes problems for Hulsey v.
Sargent, in that the federal district court in that case relied entirely
on Adamson v. Ricketts for its decision and did not even mention the
effect of Walton. See 868 F. Supp. at 1103. It is highly questionable
whether the decision in Hulsey would have survived review by the Eighth
Circuit Court of Appeals, given its express reliance on Adamson v.
Ricketts and the Ninth Circuit's determination that Adamson v. Ricketts
was abrogated by Walton. The State's appeal in Hulsey, however, was
dismissed by the Eighth Circuit because the State failed to timely file
its notice of appeal. See Hulsey v. Sargent, 15 F.3d 115, 118-19 (8th Cir.
1994).

Nor are the two state cases, Biegenwald and Young, persuasive. Biegenwald
was decided in 1987, before Blystone, Boyde, and Walton. The New Jersey
Supreme Court in Biegenwald found that "fundamental fairness" required
that the defendant get the benefit of the doubt where the "explanations
for his misconduct were equally as significant as the culpable aspects of
that misconduct." See 106 N.J. at 62. However, this argument for
fundamental fairness was not keyed to the United States Constitution but
rather to New Jersey's "traditional concern for the rights of defendants
charged with capital offenses" and the legislative history of the adoption
of the weighing equation which suggested that the New Jersey legislature
had actually meant to adopt a different equation requiring the aggravating
factors to outweigh the mitigating factors. See 106 N.J. at 59-60.

Similarly, in Young the Colorado Supreme Court determined that a weighing
equation which mandated death when the aggravating and mitigating factors
were in equipoise would violate the requirement that a death penalty
scheme would be rational and reliable. See 814 P.2d at 845. In reaching
this conclusion, the court distinguished the holding in Walton by clearly
misinterpreting the Arizona weighing equation, stating that under the
Arizona weighing equation, "[t]he sentencer must also determine whether
those mitigating factors are outweighed by the aggravating factors . . .
or, stated alternatively, are sufficient to call for leniency." 814 P.2d
at 846. As noted above, the Arizona weighing equation is in reality, the
opposite. See Walton, 497 U.S. at 687 (Blackmun, J., dissenting); State v.
Gretzler, 135 Ariz. at 53-55. This misconstruction allowed the Young court
to lump Walton's approval of the Arizona weighing equation in with the
Supreme Court's approval of the weighing equations in Blystone and Boyde
to conclude that Walton did not address the equipoise question. See 814
P.2d at 846. In the end, however, the Young court appeared unsure of its
construction of the United States Constitution and instead held that even
if its determination that the weighing equation violated the United States
Constitution was incorrect, the weighing equation would violate the
Colorado Constitution. 814 P.2d at 845-46.

This, then, is the sum total of authority for the proposition that a
weighing equation which mandates death when aggravating and mitigating
factors are in equipoise violates the Eighth Amendment: A Ninth Circuit
case which the Ninth Circuit has recognized as having been abrogated by
the United States Supreme Court; a federal district court case based
entirely on that Ninth Circuit Court case; a New Jersey state case which
predates any United States Supreme Court discussion of the issue and which
is primarily based not on the United States Constitution but instead on
New Jersey's "traditional concern for the rights of defendants charged
with capital offenses," and a Colorado state case based primarily on the
Colorado state constitution. This authority pales in comparison to that of
a decision of the United States Supreme Court expressly authorizing such a
weighing equation, see Walton v. Arizona, 497 U.S. 639, and the repeated
assertions of the United States Supreme Court that no specific method for
balancing mitigating and aggravating factors in a capital sentencing
proceeding is constitutionally required. Buchanan v. Angelone, 522 U.S.
269, 276, 139 L. Ed. 2d 702, 118 S. Ct. 757 (1998). See Walton, 497 U.S.
at 651-52; Boyde v. California, 494 U.S. at 377; Blystone v. Pennsylvania,
494 U.S. at 309.

There seems to be a general feeling among the majority that the weighing
equation which mandates death in the highly unlikely event that the jury
finds the aggravating and mitigating circumstances to be exactly equal in
weight is somehow "unfair." While it is certainly within the province of
this court to interpret the Eighth Amendment, we cannot do so in a vacuum.
We cannot simply rely on our own inchoate feelings, but instead have a
duty to examine, analyze, and apply the United States Supreme Court's
jurisprudence on the matter. This is especially true in cases such as the
one before us where the majority of the court holds that a statute enacted
by the legislature violates the Constitution on its face and is,
therefore, invalid. We have held:

"The constitutionality of a statute is presumed, all doubts must be
resolved in favor of its validity, and before the statute may be stricken
down, it must clearly appear the statute violates the Constitution. . . .
Statutes are not stricken down unless the infringement of the superior law
is clear beyond substantial doubt." State v. Groschang, 272 Kan. 652, 668,
36 P.3d 231 (2001).

This is not to say that we should not strike down statutes which clearly
infringe on the Constitution. However, when a court takes such a step it
is imperative that a clearly articulated reason be given and that it be
explained how that reason fits into the United States Supreme Court's
jurisprudence on the issue. The cases examined compel the opposite
conclusion from the majority's decision.

It is ironic that the majority appears more than ready to adopt my
dissenting opinion in Kleypas on the question of whether the statute could
be saved if it did in fact violate the Constitution. That part of the
dissent was written in an unsuccessful effort to compel the Kleypas
majority to squarely address the question of the statute's
constitutionality and to articulate its reasoning as to why K.S.A.
21-4624(e) violates the Constitution. It is unfortunate that the majority
rushes to give me perhaps too much credit for my dissenting opinion that
the statute, if unconstitutional, is unconstitutional on its face, but
completely disregards the overriding theme of my dissent, which is that
the statute is not unconstitutional at all. See Kleypas, 272 Kan. at 1124
(Davis, J., dissenting).

I respectfully dissent from the majority opinion because I conclude that
K.S.A. 21-4624(e), as passed by the Kansas Legislature in 1994, was and is
today constitutional under the Eighth Amendment to the United States
Constitution.

McFARLAND, C.J. and NUSS, J. join in the foregoing dissenting opinion.

NUSS, J., dissenting: I join Justice Davis for the reasons discussed in
his dissenting opinion. I write a separate dissent primarily to elaborate
upon one of his reasons: the controlling authority, over the instant
case's issue of death at equipoise, of Walton v. Arizona, 497 U.S. 639,
111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990), overruled on other grounds Ring
v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002).

Ever since the United States Supreme Court's decision in Furman v.
Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972), many state
legislatures have struggled to fashion death penalty statutes which the
Supreme Court will not strike as unconstitutional. Their paths have been
neither smooth nor straight because the Court's directions, and often its
requirements, certainly have been less than clear and at least arguably
less than consistent. Many legislatures could justifiably consider the
constitutionality target in death penalty jurisprudence as a moving one.
As described by one of the Supreme Court's own members, "[f]or state
lawmakers, the lesson has been that a decision of this Court is nearly
worthless as a guide for the future; though we approve or seemingly even
require some sentencing procedure today, we may well retroactively
prohibit it tomorrow." Walton v. Arizona, 497 U.S. at 668. (Scalia, J.,
concurring).

The Supreme Court did, however, bestow constitutional passing grades on
state death penalty statutes in three cases in 1990: Blystone v.
Pennsylvania, 494 U.S. 299, 108 L. Ed. 2d 255, 110 S. Ct. 1078 (1990);
Boyde v. California, 494 U.S. 370, 108 L. Ed. 2d 316, 110 S. Ct. 1190
(1990); and Walton. As a result, if a state legislature can fashion a
death penalty statute identical to any of those which were approved in
these cases, then its statute should also receive a constitutional passing
grade. The Kansas death penalty statute, K.S.A. 21-4624, is functionally
identical  on the issue of death at equipoise  to the Arizona death
penalty statute approved in Walton. Accordingly, Walton controls. To
demonstrate that Walton controls, I find it necessary to set forth below
much of its specific language.

WALTON

There is no question that the issue of death at equipoise was squarely
before the Walton Court. As Justice Davis' dissent explains, the Supreme
Court granted certiorari to resolve the conflict between the Arizona
Supreme Court, which held its state death penalty statute to be
constitutional, and the United States Court of Appeals for the Ninth
Circuit, which held the statute to be unconstitutional "for the reasons
submitted by Walton in this case, see Adamson v. Ricketts, 865 F.2d 1011
(1988) (en banc)." 497 U.S. at 647.

Petitioner Walton's brief

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

Petitioner Walton began by clearly stating his second "Question Presented"
on p. 1 of his brief as follows:

"Whether Arizona's capital sentencing statute violates the Eighth and
Fourteenth Amendments by:

"a) requiring that death be imposed if the defendant fails to prove the
existence of mitigating circumstances sufficiently substantial to call for
leniency; and

"b) precluding the sentencer from considering mitigating circumstances
unless the defendant has established their existence by a preponderance of
the evidence?" (Emphasis added.)

Next, petitioner Walton articulated the effect of this italicized
statutory language  as interpreted by both the Arizona Supreme Court and
the Ninth Circuit  on p. 33 of his brief. In the section titled "The
Statutory Presumption in Favor of Death," he argued:

"Not only must Arizona capital defendants establish that particular
mitigating circumstances exist, but they must show that these
circumstances are 'sufficiently substantial to call for leniency.' . . .
This statutory language tells an Arizona sentencing judge who finds even a
single aggravating factor, that death must be imposed, unless--as the
Arizona Supreme Court put it in Petitioner's case--there are 'out-weighing
mitigating factors.'" (citing State v. Walton, 159 Ariz. 571, 769 P.2d
1017 [1989]).

At p. 33, Walton then repeated the italicized statutory language's effect.
He also clearly argued why he considered death at equipoise, which is
connected to his argument regarding the statutory presumption in favor of
death, to be violative of his constitutional rights:

"In Adamson v. Ricketts, [865 F.2d 1011 (9th Cir. 1988)], the Ninth
Circuit succinctly described this system:

'Under the statute, once any single statutory aggravating circumstance has
been established, the defendant must not only establish the existence of a
mitigating circumstance, but must also bear the risk of nonpersuasion that
any mitigating circumstance will not outweigh the aggravating
circumstance(s) . . . The relevant clause in the statute--"sufficiently
substantial to call for leniency"--thus imposes a presumption of death
once the court has found the existence of any single statutory aggravating
circumstance. 865 F.2d at 1041-2 (footnotes omitted)." (Emphasis added.)

Finally, petitioner Walton again clearly presented the issue of death at
equipoise on pp. 36-37 of his brief. In the section titled "The Removal of
Sentencing Discretion," he argued:

"The Arizona statute is explicitly mandatory: it provides that the
sentencer 'shall' impose a death sentence whenever a single aggravating
circumstance is found and the defendant fails to meet his statutory
burdens of proof. . . .

. . . .

". . . While the statute does require balancing, it nonetheless deprives
the sentencer of the discretion mandated by the Constitution's
individualized sentencing requirement. This is because in situations where
the mitigating and aggravating circumstances are in balance . . . the
statute bars the court from imposing a sentence less than death. Thus, the
presumption can preclude individualized sentencing as it can operate to
mandate a death sentence. . . . Adamson v. Ricketts, supra, 865 F.2d at
1043 (footnotes omitted)." (Emphasis added.)

Plurality Opinion

Justice White, writing for the plurality, addressed the two subparts of
petitioner Walton's second "Question Presented" in Sections III and IV of
the opinion. See 497 U.S. at 649-652. In Section III, he expressly
rejected Walton's contention "that the Arizona statute violates the Eighth
and Fourteenth Amendments because it imposes on defendants the burden of
establishing, by a preponderance of the evidence, the existence of
mitigating circumstances sufficiently substantial to call for leniency."
497 U.S. at 649.

Then in Section IV of the plurality opinion, Justice White expressly
rejected Walton's other contention that

"because [Arizona statute]  13-703(E) provides that the court 'shall'
impose the death penalty if one or more aggravating circumstances are
found and mitigating circumstances are held insufficient to call for
leniency, the statute creates an unconstitutional presumption that death
is the proper sentence." 497 U.S. at 651.

As support for rejecting Walton's latter argument, Justice White looked to
two capital cases decided by the Court only 4 months earlier:

"Our recent decisions in Blystone v. Pennsylvania, 494 U.S. 299 (1990) and
Boyde v. California, 494 U.S. 370 (1990), foreclose this submission. . . .
We pointed out [in Blystone] that '[t]he requirement of individualized
sentencing in capital cases is satisfied by allowing the jury to consider
all relevant mitigating evidence.'" 497 U.S. at 651-52 (citing Blystone,
494 U.S. at 307).

Justice White then proceeded to explain why Boyde v. California in
particular supported the plurality's analysis and its rejection of
Walton's argument:

"Similarly, Boyde v. California, supra, upheld a pattern jury instruction
which stated that '[i]f you conclude that the aggravating circumstances
outweigh the mitigating circumstances, you shall impose a sentence of
death.' See 494 U.S. at 374. . . . The Court specifically noted that
'there is no . . . constitutional requirement of unfettered sentencing
discretion in the jury, and States are free to structure and shape
consideration of mitigating evidence "in an effort to achieve a more
rational and equitable administration of the death penalty."' Id., at 377
(quoting Franklin v. Lynaugh, 487 U.S. 164 (1988) (plurality opinion)).
Walton's arguments in this case are no more persuasive than those made in
Blystone and Boyde." (Emphasis added.) 497 U.S. at 652.

Justice Scalia joined White and the other three justices of this
plurality, Chief Justice Rehnquist, Justice O'Connor, and Justice Kennedy,
to form a majority which held Arizona's death penalty sentencing
procedures were constitutional and affirmed Walton's death sentence which
had been imposed under those procedures.

Dissenting Opinion

While Justice White did not use the word "equipoise" or expressly signal
the concept, i.e., specifically referencing "situations where the
mitigating and aggravating circumstances are in balance," his four
dissenting colleagues certainly acknowledged that the issue of death at
equipoise was directly presented to them. Justice Blackmun, writing for
himself and fellow dissenters Justices Brennan, Marshall, and Stevens, not
only addressed this specific issue in Section B of the dissenting opinion
at 497 U.S. at 686, but actually began his analysis with death at
equipoise:

"I also believe that the Constitution forbids the State of Arizona to
place upon the capital defendant the burden of proving mitigating
circumstances that are 'sufficiently substantial to call for leniency.'
Ariz. Rev. Stat. Ann.  13-703(E) (1989). Once an aggravating circumstance
has been established, the Arizona statute mandates that death is to be
deemed the appropriate penalty unless the defendant proves otherwise. That
statutory provision, in my view, establishes a 'presumption of death' in
violation of the Eighth Amendment. [Citing, inter alia, Adamson v.
Ricketts, 865 F.2d 1011, 1041 (9th Cir. 1988).]

"The Arizona Supreme Court repeatedly has indicated that a defendant's
mitigating evidence will be deemed 'sufficiently substantial to call for
leniency' only if the mitigating factors 'outweigh' those in aggravation.
. . . If the mitigating and aggravating circumstances are in equipoise,
the statute requires that the trial judge impose capital punishment. The
assertion that a sentence of death may be imposed in such a case runs
directly counter to the Eighth Amendment requirement that a capital
sentence must rest upon a 'determination that death is the appropriate
punishment in a specific case.' [Citation omitted.]" (Emphasis added.) 497
U.S. at 686-87 (Blackmun, J., dissenting).

Not only did the four dissenters acknowledge that death at equipoise was
directly presented to them, but more important, they also unequivocally
interpreted Justice White's plurality opinion as having disposed of the
issue. Specifically, the dissenters opined that the plurality's reliance
on Blystone v. Pennsylvania and Boyde v. California was misplaced because
those states' death penalty statutes were distinguishable from Arizona's
on this very issue:

"The statutes upheld in those cases provided that the death penalty would
be imposed 'only after a determination that the aggravating circumstances
outweigh the mitigating circumstances present in the particular crime
committed by the particular defendant, or that there are no such
mitigating circumstances.' Blystone, 494 U.S. at 305. In neither Boyde nor
Blystone did the challenged statute require a capital sentence when
aggravating and mitigating factors are evenly balanced. Those decisions
simply do not speak to the issue posed by the Arizona statute: whether the
State permissibly may place upon the capital defendant the burden of
demonstrating that a sentence of death is not appropriate." (Emphasis
added.) 497 U.S. at 687-88 (Blackmun, J., dissenting).

The dissenters' very next paragraph clearly continued their analysis of
the issue of death at equipoise as follows:

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

The dissenters not only denounced the plurality's tacit approval of the
concept that "in death, the tie goes to the State." They also worried that
the plurality's lack of a "limiting principle" would allow states to place
an even greater burden of proof upon the defendant fighting to avoid a
sentence of death:

"One searches in vain for any hint of a limiting principle. May a State
require that the death penalty be imposed whenever an aggravating factor
is established and mitigating circumstances do not 'substantially
outweigh' those in aggravation? May a state statute provide that a death
sentence is presumptively appropriate whenever an aggravating circumstance
is proved, and that the presumption can be rebutted only by a showing that
mitigating circumstances are 'extraordinarily great'? These formulations
would appear to satisfy the plurality's test; viz., that the State is
required to establish an aggravating circumstance, and no mitigating
evidence is excluded from the sentencer's consideration." (Emphasis
added.) 497 U.S. at 688 (Blackmun, J., dissenting).

The dissenters also observed that the plurality's approval of this concept
in the Arizona death penalty statute "appears to rest upon an analogy
between mitigating evidence in capital sentencing and affirmative defenses
in noncapital cases." 497 U.S. at 689. The dissenters then left no doubt
that they believed the plurality incorrectly permitted the tie to go to
the State. They ended their analysis by "conclud[ing] that the
Constitution bars Arizona from placing upon a capital defendant the burden
of proving that mitigating circumstances are 'sufficiently substantial to
call for leniency'"  a phrase that the dissenters admitted was interpreted
by the Arizona Supreme Court as requiring the defendant to prove his
mitigating factors outweighed his aggravating factors. 497 U.S. at 690.

In my view, the four dissenters were correct in their interpretation of
their colleagues' plurality opinion. The plurality conceivably required a
capital defendant to prove more than his or her mitigating factors
"outweighed" his or her aggravating factors; rather, e.g., that they
"substantially outweighed" them. Today, however, we need not try to
determine the outer reaches of the plurality opinion regarding the
defendant's burden of proof; rather, we need only acknowledge that death
at equipoise is within that opinion's constitutional boundaries.

Controlling cases cited in Walton

That said, the part of the plurality opinion which most persuades me that
death at equipoise is tacitly approved is  as observed by the dissent
Justice White's drawing an analogy between mitigating evidence and
affirmative defenses. In particular, he cited two of the Supreme Court's
capital decisions which placed the burden on the defendant to prove
self-defense or insanity  or else be put to death: Martin v. Ohio, 480
U.S. 228, 94 L. Ed. 2d 267, 107 S. Ct. 1098 (1987); and Leland v. Oregon,
343 U.S. 790, 96 L. Ed. 1302, 72 S. Ct. 1002 (1952). He additionally cited
two non-capital murder cases: Patterson v. New York, 432 U.S. 197, 53 L.
Ed. 2d 281, 97 S. Ct. 2319 (1977); and Rivera v. Delaware, 429 U.S. 877,
50 L. Ed. 2d 160, 97 S. Ct. 226 (1976), which also placed the burden on
the defendant to prove an affirmative defense. As Justice White concluded:

"The basic principle of these cases controls the result in this case. So
long as a State's method of allocating the burdens of proof does not
lessen the State's burden to prove every element of the offense charged,
or in this case to prove the existence of aggravating circumstances, a
defendant's constitutional rights are not violated by placing on him the
burden of proving mitigating circumstances sufficiently substantial to
call for leniency." (Emphasis added.) 497 U.S. at 650.

In one of the cited cases, Leland v. Oregon, 343 U.S. 790, the Court
upheld a requirement that the defense of insanity be proved beyond a
reasonable doubt by the defendant who had been sentenced to death. Next,
in Rivera v. Delaware, 429 U.S. 877, though the court dismissed the appeal
for want of a substantial federal question, the case had precedential
value: a defendant convicted of second-degree murder who raised an
insanity defense was required to prove his mental illness or defect by a
preponderance of the evidence.

One year after Rivera, the Court stated in the second-degree murder case
of Patterson v. New York, 432 U.S. at 207, that it was "unwilling to
reconsider Leland and Rivera" and upheld a requirement that the
affirmative defense of extreme emotional disturbance be proved by a
preponderance of the evidence.

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

It is additionally persuasive to me that two of these four murder cases
cited by Justice White in the Walton plurality, Patterson v. New York and
Martin v. Ohio, were also authored by him. Moreover, Martin not only
affirmed the Leland line of cases, but it also was written only 3 years
before White wrote the plurality opinion in Walton. (Of the other two
cases cited as authority for Martin's holding, Leland v. Oregon predated
all the members of the Walton Court, and Rivera v. Delaware had no author
due to its dismissal on jurisdictional grounds.)

Accordingly, it is my opinion that Justice White knew exactly what these
four cases stood for and therefore knew  perhaps better than his
colleagues  exactly why these cases supported his opinion for the
plurality in Walton. In short, since the Court had repeatedly approved
requiring murder defendants, particularly two capital murder defendants,
to prove their affirmative defenses by at least a preponderance of the
evidence, it was entirely consistent for the Court to require defendant
Walton to prove, essentially by a preponderance of the evidence, why he
should not be sentenced to death, i.e., to "prov[e] mitigating
circumstances sufficiently substantial to call for leniency." 497 U.S. at
650. Furthermore, the Court's reliance upon Leland, whose capital
defendant was required to prove his affirmative defense by the even higher
standard of beyond a reasonable doubt, clearly suggests the Court would
approve some capital defendant sentencing burdens even greater than those
placed upon petitioner Walton.

The majority in the instant case, however,  much like the majority in
Kleypas whose reasoning it affirms in holding K.S.A. 21-4624(e)
unconstitutional as written  does not make any attempt to address these
four important United States Supreme Court precedents upon which Justice
White expressly relied. This omission is curious, since White's heavy
reliance upon these cases as the key to the Walton opinion's holding could
not have been stated any more clearly: "The basic principle of these cases
controls the result in this case." 497 U.S. at 650. At best, the majority
obliquely dismisses these four essential cases as "cases that predate
Walton" which require analyzing "distinct statutory language" and as a
result, "obviously, do not control." According to Walton, however, they
expressly control the outcome there and should in the instant case as
well.

CASE LAW INTERPRETATIONS OF WALTON

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

Since Walton, the Arizona Supreme Court has repeatedly interpreted its
death penalty statute to require the defendant to prove mitigating factors
which outweigh the aggravating factors in order to avoid a sentence of
death. "On appeal, our task is independently to 'review the record to
determine whether any mitigating circumstances outweigh aggravating
circumstances.'" (Emphasis added.) State v. Brewer, 170 Ariz. 486, 504,
826 P.2d 783, cert. denied 506 U.S. 872 (1992). "We make this decision [on
the death penalty sentence] after searching the entire record for error,
examining the evidence establishing the presence or absence of aggravating
and mitigating circumstances, and determining whether the latter
circumstances outweigh the former when both are present." (Emphasis
added.) Brewer, 170 Ariz. at 500. See State v. Pandeli, 200 Ariz. 365,
374, 26 P.3d 1136 (2001), cert. granted and judgment rev'd by Ring v.
Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002); State v.
Hoskins, 199 Ariz. 127, 147, 14 P.3d 997 (2000), cert. denied 534 U.S. 970
(2001); State v. Van Adams, 194 Ariz. 408, 422, 984 P.2d 16 (1999), cert.
denied 528 U.S. 1172 (2000); State v. Djerf, 191 Ariz. 583, 595, 959 P.2d
1274, cert. denied 525 U.S. 1024 (1998); State v. Ysea, 191 Ariz. 372,
375, 956 P.2d 499 (1998); State v. Rienhardt, 190 Ariz. 579, 592-93, 951
P.2d 454 (1997), cert. denied 525 U.S. 838 (1998); State v. Thornton, 187
Ariz. 325, 335, 929 P.2d 676 (1996), cert. denied 520 U.S. 1217 (1997);
State v. Gulbrandson, 184 Ariz. 46, 72, 906 P.2d 579 (1995), cert. denied
518 U.S. 1022 (1996); State v. Greenway, 170 Ariz. 155, 170, 823 P.2d 22
(1991); State v. Lavers, 168 Ariz. 376, 391, 814 P.2d 333, cert. denied
502 U.S. 926 (1991).

Moreover, after Walton, Arizona has executed capital defendants under the
authority of its interpretation of that statute, with 22 executions since
1992. Three of those executions occurred after the Arizona Supreme Court
affirmed the defendants' death penalty sentences (post-Walton), and the
United States Supreme Court denied their petitions for writs of
certiorari. See State v. Miller, 186 Ariz. 314, 921 P.2d 1151 (1996),
cert. denied 519 U.S. 1152 (1997); State v. Ross, 180 Ariz. 598, 886 P.2d
1354 (1994), cert. denied 516 U.S. 878 (1995); State v. Brewer, 170 Ariz.
486. One should be leery of reading too much into those denials, but one
wonders: If the Supreme Court believed that Arizona was interpreting
Walton in a way that violated a petitioner's constitutional rights, would
not the Court have granted at least one petition to stop one of those
three executions?

Additionally, the Arizona Supreme Court has interpreted Walton as
rejecting the claim that its death penalty statute contained a presumption
of death, an argument closely connected to the death at equipoise
argument. In Gulbrandson, the defendant argued that the Arizona statute
was unconstitutional because "once the state has proven at least one
aggravating circumstance, the statute places the burden on a defendant to
prove sufficiently substantial mitigation to outweigh the presumption of
death." (Emphasis added.) Gulbrandson, 184 Ariz. at 72. The Arizona
Supreme Court responded: "This argument has been rejected," citing Walton,
497 U.S. at 650. Gulbrandson, 184 Ariz. at 72. See State v. Salazar, 173
Ariz. 399, 411, 844 P.2d 566 (1992), cert. denied 509 U.S. 912 (1993);
State v. Brewer, 170 Ariz. at 497; State v. Greenway, 170 Ariz. at 160.

Most tellingly to me, the Ninth Circuit, which had declared the Arizona
death penalty statute unconstitutional, and upon which the Walton dissent
heavily relied to opine that the statute establishes a presumption of
death in violation of the Eighth Amendment, also interpreted Walton as
rejecting this argument. In Richmond v. Lewis, 948 F.2d 1473, 1481 (9th
Cir. 1992), the defendant had argued "that the Arizona statute creates an
unconstitutional presumption that death is the proper sentence." The Ninth
Circuit responded: "The Supreme Court's recent decision in Walton v.
Arizona specifically addressed and rejected" this contention. Richmond,
948 F.2d at 1481. See Campbell v. Wood, 18 F.3d 662, 675 (9th Cir.), cert.
denied 511 U.S. 1119 (1994); Adamson v. Lewis, 955 F.2d 614, 619 (9th Cir.
1992), cert. denied 505 U.S. 1213 (1992); Smith v. McCormick, 914 F.2d
1153, 1170 (9th Cir. 1990).

Furthermore, I observe that the Kansas Supreme Court also apparently
interpreted Walton in this fashion in State v. Spain, 269 Kan. 54, 4 P.3d
621 (2000)  just 1 year before State v. Kleypas, 272 Kan. 894, 40 P.3d 139
(2001)  when it stated:

"In Walton, five justices agreed the Arizona death penalty statute did not
create an unconstitutional presumption in favor of the death penalty. The
statute at issue in Walton required imposition of the sentence of death if
any aggravating circumstances were established and there were '"no
mitigating circumstances sufficiently substantial"' to warrant leniency.
497 U.S. at 644 (quoting Ariz. Rev. Stat. Ann.  13-703[E] [1989]).
Although the language chosen by the Arizona legislature does not include
the terms 'weigh' or 'outweigh,' what the statute prescribes is a weighing
process that results in imposition of the death penalty if the mitigating
circumstances are not of sufficient weight to tip the balance toward
leniency.'" (Emphasis added.) 269 Kan. at 59.

I interpret our phrase "to tip the balance toward leniency" as requiring
more mitigating circumstances than aggravating circumstances, i.e., a tie
goes to the State.

Finally, I observe, again with Justice Davis, that the Supreme Court of
Idaho interpreted Walton the same way. In State v. Hoffman, 123 Idaho 638,
851 P.2d 934 (1993), cert. denied 511 U.S. 1012 (1994), the defendant
argued that part of Idaho's death penalty statute, like Marsh argues about
part of Kansas' statute, was "unconstitutional because it requires a
defendant to provide mitigating circumstances which outweigh any statutory
aggravating circumstance found." 123 Idaho at 646-47. The challenged
portion of the statute, Idaho Code  19-2515(c)(1987), is very similar to
K.S.A. 21-4624(e). It stated:

"Where a person is convicted of an offense which may be punishable by
death, a sentence of death shall not be imposed unless the court finds at
least one (1) statutory aggravating circumstance. Where the court finds a
statutory aggravating circumstance the court shall sentence the defendant
to death unless the court finds that mitigating circumstances which may be
presented outweigh the gravity of any aggravating circumstance found and
make imposition of death unjust." (Emphasis added.)

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

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

The Idaho Supreme Court quickly dispatched Mr. Hoffman's constitutional
argument because

"[t]his scheme was found to be constitutional in Walton v. Arizona, 497
U.S. 639, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990). In that case, the
Supreme Court held:

'So long as a State's method of allocating the burdens of proof does not
lessen the State's burden to prove every element of the offense charged,
or in this case to prove the existence of aggravating circumstances, a
defendant's constitutional rights are not violated by placing on him the
burden of proving mitigating circumstances sufficiently substantial to
call for leniency. 497 U.S. at 650, 110 S. Ct. at 3055.'

"Because the State was required to prove every element of the offense
charged, including the statutory aggravating circumstances, the burden
placed on Hoffman by operation of [Idaho Code]  19-2515(c) did not violate
his constitutional rights. Walton v. Arizona, supra." 123 Idaho at 647.

For the same reasons, Marsh's argument  that K.S.A. 21-4624(e) is facially
unconstitutional because it mandates death at equipoise  should be quickly
dispatched by our court.

In summary, outside of the Colorado Supreme Court's decision in People v.
Young, 814 P.2d 834 (Colo. 1991) (which I agree with Justice Davis
misreads the Arizona sentencing scheme and relies upon the Colorado
Constitution), and Hulsey v. Sargent, 868 F. Supp. 1090 (E.D. Ark. 1993)
(which does not mention Walton but relies upon Adamson, which the Ninth
Circuit admits was abrogated by Walton), I have been unable to find any
other court since the Walton decision was released in 1990 that agrees
with the position of the four justices in the majority in the instant
case.

In conclusion, this court is bound by the United States Supreme Court's
plurality holding in Walton until such time as that Court  as warned by
Justice Scalia in his concurring opinion in that case  changes its mind.
And Walton mandates that the death at equipoise concept contained in our
death penalty statute, K.S.A. 21-4624, is constitutional.

McFARLAND, C.J., dissenting: I respectfully dissent. I agree with Justice
Davis that the weighing equation contained in K.S.A. 21-4624(e) is
constitutional as written. If we were writing on a clean slate, there
would be no reason for me to further write in dissent; however, such is
not the case. In State v. Kleypas, 272 Kan. 894, 40 P.3d 139 (2001), the
majority opinion construed K.S.A. 21-4624(e) to be constitutional; I
joined in the dissent of Justice Davis, as did Justice Abbott in a
separate dissenting opinion, concluding the statute was constitutional as
written. Thus, the Kleypas court unanimously upheld the constitutionality
of K.S.A. 21-4624(e). Now, without any intervening change in substantive
law, the majority opinion overrules Kleypas, not because the statute as
construed is unconstitutional, but because the majority decides the
Kleypas court exceeded its judicial authority in construing the statute.
Kleypas was a 4 to 3 decision, consisting of a majority opinion and two
written dissents. None of the three opinions took the position that the
Kansas death penalty law must be struck down as constitutionally
impermissible. The majority opinion upheld the law with an extremely minor
judicial construction relative to equipoise, with the three dissenters
upholding the law as written. In the case before us, another 4 to 3
decision, the majority concludes the death penalty is fatally flawed and
rejects the majority's action in Kleypas which remedied the perceived
equipoise flaw. There has been no change in relevant constitutional law as
expressed by the United States Supreme Court. The only change has been the
composition of the Kansas Supreme Court occasioned by the retirements of
Justices Larson, Six, Lockett, and Abbott. While fidelity to the doctrine
of stare decisis is not an "inexorable command," we should be highly
skeptical of reversing an earlier decision where nothing has changed
except the composition of the court. See Payne v. Tennessee, 501 U.S. 808,
848, 115 L. Ed. 2d 720, 111 S. Ct. 2597, reh. denied 501 U.S. 1277 (1991)
(Marshall J., dissenting).

The importance of the doctrine of stare decisis to our legal system has
been often stated. The United States Supreme Court has recognized that,
although not an "inexorable command," "[s]tare decisis is the preferred
course because it promotes the evenhanded, predictable, and consistent
development of legal principles, fosters reliance on judicial decisions,
and contributes to the actual and perceived integrity of the judicial
process." Payne v. Tennessee, 501 U.S. at 827. Stare decisis is:

"the means by which [the Court] ensure[s] that the law will not merely
change erratically, but will develop in a principled and intelligible
fashion. [Stare decisis] permits society to presume that bedrock
principles are founded in the law rather than in the proclivities of
individuals, and thereby contributes to the integrity of our
constitutional system of government, both in appearance and in fact."
Vasquez v. Hillery, 474 U.S. 254, 265-66, 88 L. Ed. 2d 598, 106 S. Ct. 617
(1986).

See also Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833,
854, 120 L. Ed. 2d 674, 112 S. Ct. 2791 (1992) (stating that the "very
concept of the rule of law underlying our own Constitution requires such
continuity over time that a respect for precedent is, by definition,
indispensable"); Thornburgh v. American Coll. of Obst. & Gyn., 476 U.S.
747, 786-87, 90 L. Ed. 2d 779, 106 S. Ct. 2169 (1986) (White, J.,
dissenting) (stating that "[t]he rule of stare decisis is essential if
case-by-case judicial decisionmaking is to be reconciled with the
principle of the rule of law, for when governing legal standards are open
to revision in every case, deciding cases becomes a mere exercise of
judicial will, with arbitrary and unpredictable results").

We have similarly acknowledged the importance of stare decisis in our
decisions, stating:

"once a point of law has been established by a court, that point of law
will generally be followed by the same court and all courts of lower rank
in subsequent cases where the same legal issue is raised. Stare decisis
operates to promote system-wide stability and continuity by ensuring the
survival of decisions that have been previously approved by this court. .
. . The application of stare decisis ensures stability and continuity
demonstrating a continuing legitimacy of judicial review." Samsel v.
Wheeler Transport Services, Inc., 246 Kan. 336, 356, 789 P.2d 541 (1990),
disapproved on other grounds, Bair v. Peck, 248 Kan. 824, 844, 811 P.2d
1176 (1991).

The majority opinion pays lip service to the concept of stare decisis, but
hastily disregards it, stating:

"Stare decisis is designed to protect well-settled and sound case law from
precipitous or impulsive changes. It is not designed to insulate a
questionable constitutional rule from thoughtful critique and, when called
for, abandonment. This is especially true in a situation like the one
facing us here. Kleypas' application of the avoidance doctrine was not
fully vetted. It is young and previously untested. Its rewriting of K.S.A.
21-4624(e) was not only clearly erroneous; as a constitutional
adjudication, it encroached upon the power of the legislature." 278 Kan.
at ___.

The Kleypas appeal was heard in December 2000. In the preceding 6 months,
an unprecedented number of hours was spent by many court research
attorneys preparing the lengthiest research memorandum I have ever seen.
Fifty-one issues relating to the validity of the conviction, sentence, and
the constitutionality of the Kansas death penalty law as a whole were
exhaustively considered by this court. At the end of a year of examination
and deliberation, on December 28, 2001, we issued a 338-page ruling in
which we concluded that the Kansas death penalty law, and specifically the
weighing equation contained in K.S.A. 21-4624(e), was constitutional. Far
more time was spent on this case by the justices, in general, and on the
weighing issue, in particular, than any other case since I became a member
of this court in 1977. The majority opinion brushes off the majority
holding in Kleypas, stating the issue was not "fully vetted," cannot
withstand "thoughtful critique," and is "clearly erroneous."

While it is true that stare decisis need not be an "inexorable command,"
any departure from it should be "informed by a series of prudential and
pragmatic considerations designed to test the consistency of overruling a
prior decision with the ideal of the rule of law, and to gauge the
respective costs of reaffirming and overruling a prior case." See Planned
Parenthood v. Casey, 505 U.S. at 854. These considerations include: (1)
whether the decision sought to be overturned has proven to be intolerable
simply in defying practical "workability"; (2) whether the decision is
subject to a kind of reliance that would lend a special hardship to the
consequences of overruling and add inequity to the cost of repudiation;
(3) whether related principles of law have so far developed as to have
left the rule established by the old decision no more than a remnant of
abandoned doctrine; and (4) whether facts have so changed, or have come to
be seen so differently, as to have robbed the rule established by the old
decision of significant application or justification. 505 U.S. at 854-55.

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

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

Whatever one's opinion on the moral validity of the death penalty, the
fact remains that in 1994, the legislature, acting on behalf of the people
of Kansas, passed into law an act providing for the death penalty as a
possible punishment for a narrow, clearly defined group of intentional and
premeditated murders. See L. 1994, ch. 252. State v. Kleypas was the first
case to consider the validity of that death penalty, and our decision was
eagerly awaited by the people of Kansas as a test of whether the death
penalty that the legislature had enacted would pass constitutional muster.


Through our opinion in Kleypas, we told the legislature, and by extension
the people of Kansas, that the death penalty law it had enacted was
constitutional as construed by this court. The legislature had the right
to rely on our construction of the weighing equation in K.S.A. 21-4624(e),
and concluded that no further action on its part was necessary in order
for Kansas to have a constitutional death penalty. In reliance on our
assurances that the Kansas death penalty law was constitutional as
construed, a substantial number of death penalty proceedings have been
tried in this state, resulting in the imposition of five death sentences.
A report by the Legislative Division of Post Audit estimated the
taxpayers' costs of the post-Kleypas cases included in its study in the
millions of dollars. See Kansas Legislative Post Audit Committee
Performance Audit Report, Costs Incurred for Death Penalty Cases, Appendix
D (December 2003).

According to the majority, what this court should have done in Kleypas was
declare the statute unconstitutional on its face. The majority therefore
believes that is the appropriate remedy here. However, the situation is
not the same here as it was in Kleypas. Where this court has not spoken on
the constitutionality of a statute, all of those affected by it are on
notice that its constitutionality has not been tested, and that it might
be found wanting. However, where this court has addressed the precise
statute involved, on the precise point articulated, and found the statute
to be constitutional, persons should be entitled to rely on that decision,
not see it overturned the very next time a case involving the same issue
comes before this court. This reliance militates against haphazardly
discarding our decision in Kleypas.

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

Nor have "facts . . . so changed, or come to be seen so differently, as to
have robbed the old rule [established by the Kleypas decision] of
significant application or justification." See Planned Parenthood v.
Casey, 505 U.S. at 855. There has been no significant change in the
factual underpinnings of our Kleypas decision, and no change in facts that
would cause its central holding to be rendered obsolete.

The majority's decision today, by the barest of margins, discards our
3-year old decision in Kleypas, not because that decision has become
unworkable, or the laws or facts underpinning it have changed, or a United
States Supreme Court decision mandates it, but simply because this new
majority has the power to do so. And to what end? This is not a situation
where the continuation of an allegedly erroneous decision has the
potential to work great hardship on the rights of individuals. Our
construction of the statute in Kleypas does not adversely affect the
rights of those charged with capital murder; rather, it actually provides
greater protection. There is no question that the weighing equation in
K.S.A. 21-4624(e), as construed by our decision in Kleypas, is
constitutional. Thus, there is now no possibility that any defendant will
be sentenced to death where the aggravating and mitigating circumstances
are in equipoise. This court's decision in Kleypas creates no prejudice to
any defendant. Nevertheless, the majority's decision herein has the
anomalous consequence that death-sentence defendants: Reginald D. Carr,
Jonathan D. Carr, John Robinson, Sr., Douglas Belt, and Michael L. Marsh,
II (defendant herein), will have their death sentences swept away, despite
the fact that the equipoise factor which so concerns the majority was not
present. The death penalty proceedings in each of these five cases were
tried post-Kleypas and, thus, each of the juries was instructed that,
pursuant to our decision in Kleypas, the aggravating factors were required
to outweigh the mitigating factors for death to be imposed, and each jury
so found.

The majority reasons that our decision in Kleypas must be overruled in
order to avoid encroaching upon the power of the legislature. One might
assume that, had the legislature viewed our decision as an encroachment,
there might have been an outcry at the time the decision was handed down.
Yet, nothing of the sort occurred.

It is ironic that the majority, in its professed desire to avoid usurping
the power of the legislature, does so by frustrating the legislature's
clear intent to pass a constitutional death penalty. There is no
indication that the legislature, in passing the Kansas death penalty law,
was particularly concerned that the sentence be death in the event that
the aggravating and mitigating circumstances were exactly equal. As
Justice Davis has shown in his dissent, such an "equipoise" event is
extremely unlikely to arise outside the realm of hypothetical situations
that are more the province of law professors than judges. By invalidating
the Kansas death penalty law on the basis of its application to a
technical event that is almost certain never to arise in the real world,
the majority opinion thwarts the intention of the legislature, ostensibly,
in order to pay tribute to it.

The only currency and legitimacy this court possesses is the confidence of
the public that we will decide cases based on the consistent application
of the law, rather than on the proclivities of individual court members.
Attorneys, trial courts, and the public have the right to know that a
point of law, once settled, will remain the settled law of the state and
not be overturned every time the composition of the court changes. Our
fidelity to the doctrine of stare decisis need not be absolute, but we
should not abandon our prior decisions without a compelling reason to do
so. See United States v. International Business Machines Corp., 517 U.S.
843, 856, 135 L. Ed. 2d 124, 116 S. Ct. 1793 (1996). No compelling reason
has been shown herein and, as a result, I believe the majority opinion is
a breach of that fidelity.

I joined the dissent of Justice Davis in Kleypas because I concluded as he
did that the weighing equation was constitutional as enacted. I still so
believe and am joining his dissent herein on that issue. In Kleypas, in a
4 to 3 decision, all seven justices agreed the Kansas death penalty law
was constitutional, either as construed in a very minor respect (majority)
or as written (dissent). To now strike down the Kansas death penalty law
is, in my opinion, wholly inappropriate and unjustified, and I dissent
therefrom.