State v. Gleason

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 97,296

STATE OF KANSAS,
Appellee,

v.

SIDNEY J. GLEASON,
Appellant.

SYLLABUS BY THE COURT

1.
This court's decision in State v. Gleason, 299 Kan. 1127, 329 P.3d 1102 (2014)
(Gleason I), rev'd and remanded sub nom. Kansas v. Carr, 577 U.S. ___, 136 S. Ct. 633,
193 L. Ed. 2d 535 (2016), was based on jurisprudence founded on the Eighth
Amendment to the United States Constitution as it relates to the holding regarding
instructions on mitigating circumstances. No state law questions were presented as to that
holding.

2.
K.S.A. 2015 Supp. 21-6619(b) mandates that the Kansas Supreme Court shall
consider any errors asserted in the review and appeal of a death penalty case.

3.
The Eighth Amendment to the United States Constitution does not require the
district court to instruct a capital jury that mitigating circumstances need not be proven
beyond a reasonable doubt.

1
4.
K.S.A. 21-4624(e) provides greater protection to a death-eligible defendant than
that required by the federal Constitution. Accordingly, a capital jury in Kansas must be
instructed that mitigating circumstances need not be proven beyond a reasonable doubt.

5.
A party cannot raise a challenge to a statute's constitutionality if the claimed defect
does not apply to that party.

6.
Under § 9 of the Kansas Constitution Bill of Rights, challenges asserting that a
punishment is categorically disproportionate are limited to term-of-years sentences.

7.
A criminal defendant does not have a liberty interest in having a jury instructed in
accord with an overruled interpretation of a provision of law.

8.
Although certain guilt-phase errors do not individually or collectively require
reversal of a conviction, those errors may be so compelling that they affect a sentencing
determination when the same jury has decided both guilt and sentence.

9.
A claim of cumulative error in the penalty phase of a death penalty appeal is
reviewed using a two-step analysis. First, we determine if any guilt-phase errors must be
considered in conjunction with the penalty-phase errors. Second, we must decide if the
total cumulative effect of the errors, viewed in the light of the record as a whole, had no
reasonable possibility of changing the jury's ultimate conclusion regarding the weight of
the aggravating and mitigating circumstances. The overwhelming nature of the evidence

2
is a factor to be considered in making this determination, but its impact is limited. The
question is not what effect the error might generally be expected to have upon a
reasonable jury but, rather, what effect it had upon the actual sentencing determination in
the case on review.

Appeal from Barton District Court; HANNELORE KITTS, judge. Opinion on remand filed February
3, 2017. Affirmed.

Sarah Ellen Johnson, of Capital Appellate Defender Office, and Meryl Carver-Allmond and
Rebecca E. Woodman, of the same office, were on the briefs for appellant.

Kristafer R. Ailslieger, deputy solicitor general, and Natalie Chalmers, assistant solicitor general,
and Derek Schmidt, attorney general, were on the briefs for appellee.

The opinion of the court was delivered by

BILES, J.: This case returns after the United States Supreme Court reversed and
remanded our penalty-phase determination in State v. Gleason, 299 Kan. 1127, 329 P.3d
1102 (2014) (Gleason I), rev'd and remanded sub nom. Kansas v. Carr, 577 U.S. ___,
136 S. Ct. 633, 193 L. Ed. 2d 535 (2016). That requires us to address the unresolved
penalty-phase issues from Sidney J. Gleason's capital murder trial. As explained, Gleason
is not entitled to relief on those issues, so we affirm his death sentence.

FACTUAL AND PROCEDURAL BACKGROUND

A jury convicted Gleason of capital murder for the killings of Darren Wornkey
and his girlfriend, Mikiala "Miki" Martinez, as well as premeditated first-degree murder
for killing Wornkey, aggravated kidnapping, aggravated robbery, and criminal possession
of a firearm. In a separate penalty phase, the same jury sentenced Gleason to death for the
capital offense. See K.S.A. 21-3439(a)(6) (defining capital murder as the "intentional and

3
premediated 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").

These crimes were more fully detailed in our earlier decision. See Gleason I, 299
Kan. at 1134-46. As explained there, Gleason and Damien Thompson were involved with
Martinez in an aggravated robbery. Fearing that Martinez was talking with law
enforcement about the robbery, Gleason and Thompson tried to intimidate her. In doing
so, Gleason shot and killed Wornkey. A short time later, Thompson shot and killed
Martinez. After their arrests, Thompson agreed to plead guilty to the first-degree murder
of Martinez, disclose the location of her body, and testify against Gleason. In return, the
State agreed to recommend certain sentencing terms and dismiss the remaining charges
against Thompson. This resulted in Thompson receiving a sentence of life imprisonment
with no possibility of parole for 25 years.

Gleason appealed his convictions and death sentence. A divided court affirmed
Gleason's convictions of capital murder, aggravated kidnapping, aggravated robbery, and
criminal possession of a firearm. 299 Kan. at 1184. Also by a divided vote, the court
vacated Gleason's death sentence, holding that the Eighth Amendment to the United
States Constitution required informing Gleason's jury that mitigating circumstances need
not be proven beyond a reasonable doubt. 299 Kan. at 1197.

On certiorari to the United States Supreme Court, the Court reversed and
remanded with one dissent. The Court held the Eighth Amendment did not require
Kansas juries in a death penalty case to be advised the defendant was not required to
prove mitigating circumstances beyond a reasonable doubt. Carr, 136 S. Ct. at 642
("[O]ur case law does not require capital sentencing courts 'to affirmatively inform the
jury that mitigating circumstances need not be proved beyond a reasonable doubt.'").
Gleason's case returned to this court for further proceedings because there were

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unresolved penalty-phase issues. See 136 S. Ct. at 646 (remanding case); Gleason I, 299
Kan. at 1199 (declining to address Gleason's remaining challenges to sentence after
concluding jury instruction issue was dispositive).

Shortly after that, Gleason filed a motion, asking us to affirm our original holding
about the burden-of-proof instruction for mitigating factors on the basis of state law. He
also moved for supplemental briefing. The State opposed both motions. We invited
further briefing at the parties' option. We also asked if additional oral argument was
necessary.

Gleason submitted a supplemental brief on some unresolved issues and adopted by
reference his earlier arguments as to others. The State advised more briefing was
unnecessary, arguing there was no new controlling authority since Gleason I. The State
also opposed further oral argument. Gleason did not explicitly request oral argument or
contend it would be beneficial. He only stated he would "welcome the opportunity" to
address the court.

It should be noted we considered sua sponte revisiting the trial errors rejected by
the Gleason I majority, particularly the claim that the district court violated Gleason's
constitutional right to confront the witnesses against him and the related question whether
the district court erred by not declaring a mistrial after a witness was declared unavailable
to testify at trial. This sua sponte consideration occurred in the context of addressing the
dissents' arguments below. Ultimately, a majority of the court determined revisiting these
questions was inappropriate given Gleason's failure on remand to request reconsideration
and because no exception to the law of the case doctrine was applicable. See State v.
Kleypas, 305 Kan. 224, 245, 382 P.3d 373 (2016) (Kleypas II) (applying law of the case
doctrine in death penalty case and noting only three exceptions to that doctrine: [1] a
subsequent trial produces substantially different evidence, [2] a controlling authority has

5
made a contrary decision regarding the law applicable to the issues, or [3] the prior
decision was clearly erroneous and would work a manifest injustice).

Accordingly, the outstanding issues are: (1) whether it was reversible error under
state law not to instruct jurors that mitigating circumstances need to be proven only to the
individual juror's satisfaction and not beyond a reasonable doubt; (2) whether the death
penalty is unconstitutionally disproportionate under § 9 of the Kansas Constitution Bill of
Rights as applied to an offender category to which Gleason claims to belong, namely
"non-triggerman" accomplices; (3) whether Gleason's death sentence is unconstitutionally
disproportionate in comparison to his accomplice's sentence; (4) whether Gleason's death
sentence is contrary to the aiding and abetting statute, K.S.A. 21-3205; (5) whether the
district court erred in giving a pre-Kleypas I instruction about the weighing equation
under K.S.A. 21-4624(e); (6) whether the district court committed clear error when
instructing the jury about the sentence Gleason would receive if the jury decided not to
impose the death penalty; (7) whether the penalty-phase verdict forms protected
Gleason's right to be free from double jeopardy; and (8) whether any cumulative error
requires reversal of the death sentence.

After conducting our own research and fully considering the original and
supplemental briefs, we conclude further oral argument is unnecessary. As explained, we
hold the remaining issues do not warrant reversal or remand.

THE JURY INSTRUCTION ON MITIGATION

In his motion for a ruling under state law, Gleason argued we should affirm our
prior holding that the district court's failure to provide an affirmative instruction that
mitigating factors need not be proven beyond a reasonable doubt required vacating his
death sentence. But a motion requesting a specific holding from this court is unusual.
And to the extent Gleason advanced a new claim in this motion, he chose the "wrong

6
procedural vehicle to obtain his requested relief." State v. Cheever, 304 Kan. 866, 875-76,
375 P.3d 979 (2016) (Cheever II) (motion practice cannot be used as end run around rules
of appellate procedure). Accordingly, we deny Gleason's motion, although that does not
end the question.

We note Gleason's motion was coupled with a motion for supplemental briefing,
which we granted. And K.S.A. 2015 Supp. 21-6619(b) requires this court in death penalty
cases to "consider . . . any errors asserted in the review and appeal" and authorizes us to
notice unassigned errors if doing so serves the "ends of justice." So based on the relevant
statute and the unique circumstances of this case, we will treat Gleason's arguments as if
they had been raised in his supplemental brief. See Cheever II, 304 Kan. at 876-77
(holding that although Cheever chose "the wrong procedural vehicle to obtain his
requested relief" the issue would be considered because this is a death penalty case and
K.S.A. 2015 Supp. 21-6619 applies).

Gleason first argues the state law references in our 2014 decision were central to
the outcome, overturning his death sentence due to the absence of a burden of proof
explanation for the mitigation instruction. He contends Gleason I's holding on this point
was based "on issues unique to Kansas state law," rather than the Eighth Amendment.
The upshot, he asserts, is that the United States Supreme Court's decision reversing
Gleason I is not binding and that we are free to ignore it.

But this disregards both Gleason's previous arguments in Gleason I and what we
said when deciding the case. Gleason's original brief declared: "[T]he specific question is
whether the instruction prevented the jury from giving proper consideration to mitigating
circumstances, as is required by the Eighth and Fourteenth Amendments." (Emphasis
added.) Similarly, Gleason's conclusion repeated that the jury was precluded "from giving
proper consideration to mitigating circumstances in determining the appropriate sentence
for Sidney Gleason, in violation of the Eighth and Fourteenth Amendments." (Emphasis

7
added.) Without question, Gleason did not present a state law basis in his original
briefing when arguing for reversal based on the mitigation instruction.

Just as plainly, there is no credence to his contention that our 2014 decision was
grounded in state law. We rejected this identical argument in Cheever II. We held
Gleason I and two other cases addressing the same issue "were framed as federal
constitutional claims." 304 Kan. at 883. Likewise, we reject Gleason's contention now
that our rationale rested on state law. The United States Supreme Court's decision cannot
be ignored or treated as nonbinding. It is part of the law of this case with respect to
Gleason's federal constitutional claim. See 304 Kan. at 878 (holding Kansas v. Carr
forecloses any relief under Eighth Amendment on failure to provide a burden of proof
instruction to accompany the mitigating circumstances instruction).

Gleason argues in the alternative that, even if our original holding was based on
Eighth Amendment jurisprudence, state law nonetheless requires an affirmative
instruction informing a penalty-phase jury that mitigating factors need not be proven
beyond a reasonable doubt. We agree. We recently considered the issue and held the trial
court's failure to give such an instruction was error under state law. See Cheever II, 304
Kan. at 886. In that case, we first noted K.S.A. 21-4624(e) states:

"'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 to life without the
possibility of parole. The jury, if its verdict is a unanimous recommendation of a sentence
of death, shall designate in writing, signed by the foreman of the jury, the statutory
aggravating circumstances which it found beyond a reasonable doubt. If, after a
reasonable time for deliberation, the jury is unable to reach a verdict, the judge shall

8
 dismiss the jury and impose a sentence of life without the possibility of parole and shall
commit the defendant to the custody of the secretary of corrections.'" 304 Kan. at 879.

We further observed: "K.S.A. 21-4624(e) provides greater protection to a death-
eligible defendant than that required by the federal Constitution, i.e., the defendant has
only a burden of production in establishing mitigating circumstances." 304 Kan. at 883.
And then we concluded:

"In enacting K.S.A. 21-4624(e), the Kansas Legislature endowed capital defendants with
protection above that of the federal constitutional floor with respect to the burden of
proof to establish mitigating circumstances. This greater protection is a matter of state
law outside the purview of the United States Supreme Court." 304 Kan. at 883-84.

We then applied our well known multi-step process for considering claims of jury
instruction error when there was no objection. Cheever II, 304 Kan. at 884-85 (two-part
test); see K.S.A. 22-3414(3) (no party may assert instructional error unless that party
objected before the jury retires, stating the grounds for the objection, unless the
instruction or failure to give it is clearly erroneous); State v. Robinson, 303 Kan. 11, 282,
363 P.3d 875 (2015) (holding "two-part test" requires appellate court to determine [1]
whether subject instruction legally and factually appropriate and [2] assess whether court
is firmly convinced jury would have reached different verdict had instruction error not
occurred); State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012) (clarifying how
review of jury instruction issues fits within the structure of the typical appellate process).

We held an instruction that mitigating circumstances need not be proven beyond a
reasonable doubt was both legally and factually appropriate, so it was error for the trial
court not to give it. 304 Kan. at 885-86. The instruction was legally appropriate because
of K.S.A. 21-4624(e)'s greater protections. 304 Kan. at 885 ("By necessary implication,
[K.S.A. 21-4624(e)] evidences the legislature's intent that a capital penalty phase jury be
9
instructed that mitigating circumstances need to be proved only to the satisfaction of the
individual juror in the juror's sentencing decision and not beyond a reasonable doubt.").
And it was factually appropriate because Cheever offered evidence of mitigating factors
and because "mercy itself may be considered a mitigating factor . . . ." 304 Kan. at 885.
We then proceeded to the next analytical step—deciding whether failure to give the
instruction was reversible, i.e., clearly erroneous, because Cheever did not request the
instruction or object to the one given. 304 Kan. at 886.

The same analysis used in Cheever II leading up to the determination of error
under the first analytical step is equally applicable in Gleason's case. We hold that an
instruction on the burden of proof explaining that mitigating circumstances need not be
proven beyond a reasonable doubt was legally and factually appropriate in Gleason's case
under state law. Accordingly, it was error for the district court not to give the instruction.
And because Gleason did not request the instruction, we next consider whether the failure
to instruct was clearly erroneous, i.e., whether we are firmly convinced the jury would
have reached a different verdict absent the error. As explained, we hold there was no
clear error.

The Gleason I court reviewed the sufficiency of the evidence supporting the
aggravating factors the jury found in imposing the death penalty. See K.S.A. 2015 Supp.
21-6619(c) (providing supreme court "shall determine . . . whether the evidence supports
the findings that an aggravating circumstance or circumstances existed"). The State
alleged four statutory aggravating circumstances, each of which the jury found: (1)
Gleason was previously convicted of a felony in which he inflicted great bodily harm,
disfigurement, or death on another; (2) Gleason knowingly or purposely killed or created
a great risk of death to more than one person; (3) Gleason committed the crime in order
to avoid or prevent his lawful arrest or prosecution; and (4) Martinez was killed because
she was a prospective witness against Gleason. See K.S.A. 21-4625 (listing aggravating
circumstances).

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 The standard of review the Gleason I court applied was whether, after studying all
the evidence and viewing it in the light most favorable to the prosecution, the court was
convinced a rational factfinder could have found the existence of the alleged aggravating
circumstance beyond a reasonable doubt. 299 Kan. at 1189. The court concluded
sufficient evidence supported all four aggravating circumstances, explaining:

"Regarding the avoid arrest and victim witness aggravators, the evidence
established that Gleason, Thompson, Galindo, Fulton, and Martinez robbed Elliott on
February 12, 2004. After the robbery, Gleason and Thompson, collectively and
individually, threatened their accomplices to discourage them from talking to the police
about the robbery. Later, Gleason and Thompson learned that Martinez and Fulton had
talked to the police and, 9 days after the robbery, Gleason and Thompson killed Martinez
and Wornkey. We are convinced that a rational factfinder could have found beyond a
reasonable doubt both that Gleason killed Martinez to avoid arrest or prosecution for the
Elliott robbery and that Martinez was killed because she was a prospective witness
against Gleason regarding the Elliott robbery. Further, we note that because Martinez
witnessed Wornkey's murder, it also would have been reasonable for the jury to conclude
that Gleason killed Martinez to avoid arrest or prosecution for killing Wornkey and that
Martinez was killed because she was a prospective witness against Gleason regarding
Wornkey's murder.

"Gleason challenges the sufficiency of the evidence to support the risk of death
aggravator by incorporating his previous argument regarding the State's alleged failure to
prove the murders of Wornkey and Martinez were committed as '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.' We rejected that argument in the guilt phase
portion of this opinion because the State's evidence clearly established the requisite
connection between the two murders. This same evidence supports the jury's finding that
Gleason 'knowingly or purposely killed . . . more than one person.' See K.S.A. 21-
4625(2).

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 "Finally, the evidence clearly supports that Gleason previously had been
convicted of a felony in which he inflicted great bodily harm, disfigurement,
dismemberment, or death on another. See K.S.A. 21-4625(1). Agent Latham testified
Gleason was convicted of attempted voluntary manslaughter in 2001 and that at the time
of Gleason's trial in this case, the victim of that crime still had a bullet lodged in his
chest, had significant scars from three gunshot wounds, and had a surgical scar from the
removal of a bullet from his hip." 299 Kan. at 1189-90.

Against the State's alleged statutory aggravating circumstances, Gleason claimed
as mitigating circumstances: (1) His capacity to appreciate the criminality of his conduct
was impaired; (2) he was relatively young—24 years old at the time of the crime; (3) the
public would be adequately protected if he were given a term of imprisonment; (4) he had
an accomplice who significantly participated in planning and committing the crimes; (5)
his accomplice received only a life sentence with eligibility for parole in 25 years; (6) he
lacked contact with his mother in his early years because she was in jail; (7) he and his
siblings were all in jail at the time of sentencing; (8) he was obedient and an excellent
student when he lived with his great aunt; and (9) his family loved him.

On remand, Gleason argues we must reverse his death sentence because we cannot
presume an instructional error of this type "did not sway the vote of a single juror."
Therefore, the argument continues, we cannot be firmly convinced the verdict would
have been the same had the proper instruction been given.

But our task on appeal is stated differently. To find clear error, the court must be
firmly convinced the jury would have reached a different verdict absent the instructional
error. This inquiry requires us to review and consider the complete record on appeal to
determine the error's impact. Cheever II, 304 Kan. at 886-87. We have done that in
Gleason's cases by independently reviewing the record on appeal in full, including the
penalty-phase proceedings. We found nothing suggesting there would have been a
different verdict had the jury been instructed properly.
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 Gleason's mother, great aunt, brothers, and childhood pastor testified to the
mitigating circumstances. There was little, if any, dispute about the facts establishing
their existence. As to this mitigating evidence, the district court instructed the jury:

"You may further consider as a mitigating circumstance 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. Each of you must consider every mitigating
circumstance found to exist."

The court also told the jury, "The appropriateness of exercising mercy can itself be
a mitigating factor in determining whether the State has proved beyond a reasonable
doubt that the death penalty should be imposed."

Moreover, the parties' closing arguments further dispel the notion that we should
be firmly convinced the jury would have reached a different verdict absent the
instructional error. The State repeatedly told the jury it would be each juror's "individual
choice" to decide whether mitigating factors exist based upon "any evidence" to support a
particular factor. The State never suggested mitigation had to be proven beyond a
reasonable doubt or even under the lower preponderance-of-the-evidence standard. To
the contrary, the State repetitively spoke about each mitigation factor alleged by Gleason
and asked, "Did you hear any evidence about that?" or, "Can you find that one to exist
based on the evidence?"

In some instances, the State simply conceded a factor's existence, such as
Thompson's involvement with the crimes. The State also admitted Thompson received a
life sentence with parole eligibility no earlier than 25 years from the date of sentencing.
Indeed, a fair review of the State's closing shows little, if any, dispute about the existence

13
of Gleason's mitigating factors and not a hint of argument that Gleason had failed to
demonstrate any factor's existence. Instead, the State focused on what weight those
factors should be given in light of the aggravators—and there is no claim of error in that
regard.

Likewise, in Gleason's closing, his defense counsel told the jurors:

"You're also told in [Instruction 7] that mitigators do not have to be proven unanimously.
You all have to consider them, but if you believe something is a mitigator, it goes on your
scale, it doesn't matter if anyone else places it on theirs. Likewise, you independently
weigh those mitigators." (Emphasis added.)

Defense counsel further explained, "Mitigators are anything in your independent moral
assessment whether it's on this list in Instruction 7 or not." And he later added:

"Any one of you who says no, I think that there's mitigation, be it mercy, be it something
on the list, be it something of your own that outweighs aggravation guarantees Sidney
life. It's minority rule in that regard. There's a presumption of life."

The penalty-phase closing arguments by both the State and the defense did exactly
what they were supposed to do—they helped the jury understand the evidence and apply
the law. See PIK Crim. 3d 56.00-D (2003 Supp.). Based on the complete record, we
conclude there simply is no clear error requiring us to vacate Gleason's death sentence
based on the defective jury instruction.

We note the concurrence disagrees with the analytical approach just explained and
would instead have simply determined the mitigation instruction as originally given was
legally appropriate, i.e., there was no error. The concurrence's premise is that we were
wrong in Cheever II to find a state law error and now equally wrong following that
14
caselaw here. The concurrence essentially argues the United States Supreme Court laid to
rest the claim of error in Kansas v. Carr, 136 S. Ct. at 643-44, even though that decision
"is not technically binding in law on this court in the context of state law." (Slip. op. at 35
[Stegall, J., concurring].) Some observations are appropriate in response.

First, it is unexplained why this court should apply a federal constitutional
standard to what is exclusively a state law claim. Neither our legislature nor this court are
subordinate to a federal test that merely denotes the federal constitutional floor when
state law requires more. The federal test advanced by the concurrence is not the exclusive
way to identify error in the penalty phase, and it is inapplicable to this state law issue
because we are considering the absence of a legally appropriate instruction, not simply
whether the instructions as given were ambiguous under the Eighth Amendment.

Second, under our state law analysis, there is a difference between whether an
instruction is legally appropriate and whether prejudice occurred from an instructional
error. In Cheever II, this court held that an instruction on the burden of proof that
explained mitigating circumstances need not be proven beyond a reasonable doubt was
legally appropriate. This determination was based on our statutory analysis of K.S.A. 21-
4624(e) in conjunction with the other instructions given, caselaw precedent, and
legislative inaction following our decisions on the necessity of affirmatively instructing
the jury on the burden of proof for mitigating circumstances. See Cheever II, 304 Kan. at
883-85.

Third, turning to the harmless inquiry itself, the quotations referred to in the
concurrence from the United States Supreme Court's Kansas v. Carr, 136 S. Ct. at 643-
44, decision and the dissent in Gleason I, 299 Kan. at 1213 (Biles, J., dissenting), are
actually analogous to the state law harmless prong, even though they were made
originally in the "reasonable likelihood" context of the Eighth Amendment. And our
decision to reject Gleason's prejudice claims on the mitigation instruction question finds

15
those same quotations instructive in determining that the state law error was harmless.
We simply apply their wisdom at the proper place in the state law analysis.

Finally, the concurrence questions whether Cheever II's state law discussion of the
mitigation instruction might be seen as judicial pique in reaction to the earlier reversal by
the United States Supreme Court on the federal Eighth Amendment issue. But as
explained by the Cheever II court, it was Cheever who raised this state law issue for the
first time after remand from the United States Supreme Court—he just did it improperly.
See Cheever II, 304 Kan. at 874-76. Given that, the Cheever II court simply followed
K.S.A. 2015 Supp. 21-6619(b) (The court "shall consider the question of sentence as well
as any errors asserted in the review and appeal and shall be authorized to notice
unassigned errors appearing of record if the ends of justice would be served thereby.").
This is the same statutory authority we have exercised in Gleason's case to dispose of this
same issue.

§ 9 OF THE KANSAS CONSTITUTION BILL OF RIGHTS

Gleason claims his death sentence is unconstitutional under § 9 of the Kansas
Constitution Bill of Rights for two reasons. First, he contends § 9 categorically prohibits
imposing the death penalty against "a non-triggerman accomplice who has been found
guilty of capital murder based on aiding and abetting" because death is "an
unconstitutionally disproportionate punishment" for that category of offenders. Second,
he argues his death sentence is "an unconstitutionally disproportionate punishment" under
§ 9 in comparison to the hard 25 sentence received by his accomplice, Thompson, who
engaged in the same conduct as Gleason.

The State initially contends these questions are not properly preserved, but in
pressing this contention it ignores the special review provisions applicable to death
penalty appeals, as discussed above. See K.S.A. 2015 Supp. 21-6619(b) (providing this

16
court must review every error asserted in a death penalty appeal). We will not address
these provisions again. Accordingly, we reject this preservation argument.

Standard of review

Whether the Kansas death penalty statute is constitutional under § 9, as applied to
a certain category of offenders, is a question of law over which this court exercises
unlimited review. See State v. Dull, 302 Kan. 32, 40, 351 P.3d 641 (2015); see also State
v. Gomez, 290 Kan. 858, 863-66, 235 P.3d 1203 (2010) (holding defendant's
proportionality claim under the Eighth Amendment presents questions of law); State v.
Scott, 286 Kan. 54, 92, 183 P.3d 801 (2008) ("[T]he constitutionality of a statute . . .
raises a question of law over which [the court] exercise[s] an unlimited standard of
review."), overruled on other grounds State v. Dunn, 304 Kan. 773, 807-11, 375 P.3d 332
(2016).

The non-triggerman accomplice argument

Gleason urges this court to "interpret § 9's cruel or unusual punishment clause to
prohibit the death penalty for an accomplice such as Sidney Gleason, convicted of capital
murder based on aiding and abetting Damien Thompson's killing of Miki Martinez." In
other words, Gleason casts himself as only a non-triggerman accomplice. But that is not
really the proper category to place him in, so he would not have standing to assert that
claim. See Cheever II, 304 Kan. at 888 (party cannot challenge a statute's
constitutionality when the claimed defect does not apply to that party).

Gleason was actually convicted of capital murder based on the intentional and
premediated killing of two victims, in which he was the principal for one killing and a
non-triggerman accomplice in the second. But such a narrow categorical definition would
be inconsistent with the United States Supreme Court's approach to categorizing

17
defendants "by broad characteristics such as those who committed their crimes before the
age of 18 or whose intellectual functioning is in a low range." State v. Mossman, 294
Kan. 901, 928, 281 P.3d 153 (2012) (citing Roper v. Simmons, 543 U.S. 551, 578, 125 S.
Ct. 1183, 161 L. Ed. 2d 1 [2005], and Atkins v. Virginia, 536 U.S. 304, 321, 122 S. Ct.
2242, 153 L. Ed. 2d 335 [2002]); see Enmund v. Florida, 458 U.S. 782, 797, 102 S. Ct.
3368, 73 L. Ed. 2d 1140 (1982) (adopting broad categorical rule that a person who has
not in fact killed, attempted to kill, or intended that a killing take place or that lethal force
be used may not be sentenced to death).

Gleason's narrower class of offender based on the facts of his crime "is so case-
specific it seems to obliterate the distinction between the two categories of analysis: (1) a
case-specific analysis that 'would allow courts to account for factual differences between
cases' and (2) a categorical analysis." Mossman, 294 Kan. at 928 (quoting Graham v.
Florida, 560 U.S. 48, 77, 130 S. Ct. 2011, 176 L. Ed. 2d 825 [2010]); see State v.
Florentin, 297 Kan. 594, Syl. ¶ 3, 303 P.3d 263 (2013) (defendant cannot argue sentence
categorically disproportionate in violation of Eighth Amendment by creating fact-specific
categories relating to nature of offender and details of crime).

The United States Supreme Court's approach to categorizing defendants by broad
characteristics when assessing categorical challenges is a sound one, and we adopt that
approach when considering categorical challenges under § 9. Gleason's case-specific
argument would too narrowly define his class, and he does not belong to the broader class
of non-triggerman accomplices, for which a categorical analysis might be appropriate.

As-applied challenge under § 9

Gleason next argues his death sentence is unconstitutional under § 9 as a
disproportionate punishment when compared to the hard 25 sentence Thompson received

18
after pleading guilty. Simply stated, Gleason seeks a comparative proportionality review
of his death sentence.

But "neither the Kansas Constitution, the Kansas death penalty statutes, nor
Kansas case law requires that a defendant's sentence be subjected to a proportionality
review which compares the defendant's sentence with those imposed on other Kansas
defendants for the same or similar crimes." State v. Kleypas, 272 Kan. 894, 1033, 40 P.3d
139 (2001) (Kleypas I), cert. denied 537 U.S. 834 (2002), abrogated in part Kansas v.
Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006). Gleason argues that we
should overrule Kleypas I as to this point, but we have recently affirmed it on its merits.
See State v. Kleypas, 305 Kan. 224, 338-39, 382 P.3d 373 (2016) (Kleypas II).

Gleason further suggests this court has recently reaffirmed the availability of
comparative proportionality review in noncapital cases under § 9. But he supports this by
citing cases dealing with the three-part test from State v. Freeman, 223 Kan. 362, 367,
574 P.2d 950 (1978). That test does not apply when the method of punishment rather than
the term of years is challenged as cruel or unusual. Kleypas II, 305 Kan. at 338-39;
Mossman, 294 Kan. at 909; see also Kleypas I, 272 Kan. at 1031-33; State v. Scott, 265
Kan. 1, 8-9, 961 P.2d 667 (1998) (declining to apply the three-prong test set forth in
Freeman). Gleason is challenging the method of his punishment for capital murder—
death—as compared to the length of Thompson's sentence for first-degree murder—25 to
life. That is not the type of comparison contemplated under Freeman. See 223 Kan. at
367 (developing "three techniques" to consider "[i]n determining whether the length of a
sentence offends the constitutional prohibition against cruel punishment").

Kleypas I makes clear that a comparative proportionality review of a death
sentence is not required under the federal or state constitutions or under state law, and
Gleason offers no new arguments as to why this court should reverse the position taken in

19
that case. We decline to consider Gleason's request for a comparative proportionality
review of his death sentence.

AIDING AND ABETTING STATUTE

Gleason next claims there is no statutory authority for imposing a death sentence
against an aider and abettor. Specifically, he contends this court has consistently
misinterpreted the aiding and abetting statute, K.S.A. 21-3205, as allowing an aider and
abettor to be punished in the same manner as a principal. He further argues that because
K.S.A. 21-3205 does not expressly authorize an aider and abettor to be punished in the
same manner as a principal, the aggravating circumstances of K.S.A. 21-4625 do not
apply when a defendant is convicted of capital murder under a theory of aiding and
abetting.

Like Gleason's § 9 challenges, these arguments rest entirely upon his
mischaracterization of his capital murder conviction. He was not "convicted of capital
murder on an aiding and abetting theory." He was convicted of capital murder because he
committed first-degree, premeditated murder when he shot and killed Wornkey and then
committed first-degree, premeditated murder when he aided and abetted Thompson in
killing Martinez. Both murders were sufficiently related to constitute the crime of capital
murder under K.S.A. 21-3439(a)(6) (intentionally and with premeditation killing more
than one person in same or related transactions). Gleason's capital murder conviction
actually rests upon the jury's determination that he committed two related, intentional,
premeditated murders, only one of which is predicated on an aiding-and-abetting theory.

Since the factual underpinnings of Gleason's argument are missing, we reject this
claim as meritless.

20
 PRE-KLEYPAS I INSTRUCTION FOR K.S.A. 21-4624(e)'S WEIGHING EQUATION

Over Gleason's objection, the district court instructed the jury, in part, "If you find
unanimously beyond a reasonable doubt that one or more aggravating circumstances
exists and that they are not outweighed by any mitigating circumstances found to exist,
then you shall impose a sentence of death."

Gleason claims this instruction was legally incorrect because the district court
failed to modify the instruction in accordance with this court's interpretation of K.S.A.
21-4624(e) as set forth in Kleypas I. There, the court held the statute violated the Eighth
Amendment because it mandated a death sentence if the jury found the aggravating and
mitigating factors to be in equipoise. Kleypas I, 272 Kan. 894, Syl. ¶ 45.

The problem with Gleason's argument is that the instruction given by the district
court is consistent with the statutory language of K.S.A. 21-4624(e), and that statute was
held constitutional by the United States Supreme Court after Gleason's trial. See Marsh,
548 U.S. at 181. In other words, even though the instruction was incorrect at the time of
Gleason's trial based on then-controlling authority, two months later that instruction was
determined to be correct by the United States Supreme Court. Accordingly, we cannot
hold that the instruction was legally inappropriate. Further, there is no claim the
instruction created juror confusion or prevented the jury from considering relevant
mitigating evidence.

Gleason also argues he had a liberty interest in having the jury instructed
consistent with Kleypas I, and the district court's failure to do so violated his right to due
process under the Fourteenth Amendment to the United States Constitution. He relies on
Hicks v. Oklahoma, 447 U.S. 343, 100 S. Ct. 2227, 65 L. Ed. 2d 175 (1980). When
addressing this argument in Kleypas II, we stated:

21
 "The liberty interest recognized by the Hicks Court was the right to have the jury
determine a defendant's punishment and to be able to exercise its full discretion. Kleypas
essentially attempts to create a liberty interest in having the jury instructed in accord with
an overruled interpretation of a provision of law. But that is not the holding in Hicks.

"Here, Kleypas was sentenced by the jury in accord with the statute applicable to
his offense at the time he committed it. See State v. Keel, 302 Kan. 560, 586-87, 357 P.3d
251 (2015) (penalty parameters for a crime are fixed on the date the offense was
committed), cert. denied 136 S. Ct. 865 (2016); see also Griffith v. Kentucky, 479 U.S.
314, 327, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987) ("a new rule for the conduct of
criminal prosecutions is to be applied retroactively to all cases, state or federal, pending
on direct review or not yet final"); Gaudina v. State, 278 Kan. 103, 106, 92 P.3d 574
(2004) (Kansas follows "the same rule for finality [for purposes of the retroactive
applicability of a new rule] set forth in Griffith."). And, according to the holding in
Marsh, the instruction fulfilled Kleypas' liberty interest in having the jury exercise the
full discretion allowed by law." Kleypas II, 305 Kan. at 295-96.

We similarly conclude the sentencing procedure did not deprive Gleason of any
liberty interest.

ADVISING JURY OF ALTERNATIVE SENTENCES

Gleason next claims the district court gave a "confusing and inaccurate"
instruction about the sentences he could receive if the jury decided not to impose the
death penalty. Gleason contends flaws in the instruction were exacerbated when the
instruction was read with other instructions and the verdict forms. He did not bring any of
these alleged flaws to the district court's attention at the time of trial.

On appeal, Gleason focuses on a portion of Instruction 11. It provided: "If, at the
conclusion of your deliberations, the jury finds that the mitigating circumstances

22
outweigh the aggravating circumstances, then the Court will sentence Sidney Gleason
pursuant to the Kansas Sentencing Guidelines Act . . . ." (Emphasis added.) The
instruction then informed the jury about possible noncapital sentences the court could
impose.

Gleason reads the italicized portion of the instruction in isolation and quite
literally. He argues no instruction and no verdict form provided an option for the jury to
make an affirmative finding that the mitigating circumstances outweighed the
aggravating circumstances. According to Gleason, the jury was left to speculate about the
noncapital sentence he would receive if not sentenced to death. In addition, Gleason
asserts the instruction (1) risked leading the jury to believe it had to be unanimous in
finding mitigating circumstances outweighed aggravating circumstances for the
noncapital sentences to be imposed, and (2) created a reasonable likelihood the
instruction prevented the jurors from giving meaningful effect to Gleason's asserted
mitigating circumstance that a term of imprisonment would be sufficient to defend and
protect the public's safety.

Gleason recognizes this court's standard of review in the absence of an objection
to a jury instruction is generally clear error. See K.S.A. 22-3414(3). And the State asserts
this standard of review applies because Gleason failed to lodge an objection to the
instruction on the grounds he now asserts. But citing Boyde v. California, 494 U.S. 370,
110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990), Gleason contends a "heightened review"
applies to alleged instructional claims of error occurring during the penalty phase of a
death penalty case.

We recently clarified how Boyde intersects our multi-step process for considering
claims of jury instruction error. We noted that under Boyde, when a claim is made that
jury instructions impermissibly restrict a jury's consideration of evidence relevant to
mitigating factors in the penalty phase of a death penalty case, the proper inquiry as to the

23
instruction's legal appropriateness under the Eighth Amendment is whether there is a
reasonable likelihood the jury applied the challenged instruction in a way that prevented
consideration of constitutionally relevant evidence. Kleypas II¸ 305 Kan. 224, Syl. ¶ 24.
We observed further the Boyde test is not a harmless error test. Instead, it determines
whether constitutional error occurred when the jury was given an ambiguous instruction
that it might have interpreted to prevent consideration of constitutionally relevant
evidence. Kleypas II, 305 Kan. at 304. We then more fully discussed how the Boyde test
fit within the structure of this state's established jury instruction analysis.

Drawing from Calderon v. Coleman, 525 U.S. 141, 146-47, 119 S. Ct. 500, 142 L.
Ed. 2d 521 (1998), we articulated the following steps: (1) A reviewing court must
determine if the jury instruction was ambiguous and whether that ambiguity opened the
possibility of misleading the jury; (2) the court must apply the Boyde test to decide if
there was a reasonable likelihood the jury understood the instruction in a manner that was
misleading to the jury; (3) if the court finds a reasonable likelihood, it must determine
whether the instruction, as so understood, was unconstitutional as applied to the
defendant; and (4) if so, the court must apply the appropriate harmless error test
depending on whether a proper request or objection was made. Kleypas II, 305 Kan. at
304-06.

In other words, at step four, if a death penalty defendant failed to request or object
to an instruction, the court must apply the clearly erroneous standard for harmless error
and determine whether it is firmly convinced the jury would have reached a different
verdict had the instruction error not occurred. And the party claiming there was a clearly
erroneous instruction would have the burden to establish the degree of prejudice
necessary for reversal. Kleypas II, 305 Kan. at 306.

In this case, we need not labor over the analysis step by step. Instead, we simply
recognize a more accurate instruction would have told the jury that "[i]f, at the conclusion

24
of your deliberations, the jury is unable to reach a unanimous verdict sentencing Sidney
Gleason to death, then the Court will sentence Sidney Gleason pursuant to the Kansas
Sentencing Guidelines Act as follows . . . ." Given that, we may assume—without
deciding—that the first three steps outlined above resolve in Gleason's favor. This brings
us to the fourth step where we must determine if we are firmly convinced the jury would
have reached a different verdict had the instruction error not occurred. We do this based
on our review of the entire record.

Although we are willing to assume instructional error, we do not assume each
basis Gleason asserts for potential juror confusion. First, the instructions and verdict
forms cannot fairly be read to have confused the jurors with respect to the noncapital
sentences Gleason faced if the jury failed to sentence him to death. The instruction
informed the jury of the possible sentences Gleason faced under the Kansas Sentencing
Guidelines Act, and the jury was told that if it was "unable to reach a unanimous verdict
sentencing Sidney Gleason to death," he would be "sentenced by the Court as otherwise
provided by law." See Boyde, 494 U.S. at 378, 380-81 (instructions must be read as a
whole; jurors "do not sit in solitary isolation booths parsing instructions for subtle shades
of meaning in the same way that lawyers might"). Second, there is simply no possibility
the jury could have read the instruction to require jurors to be unanimous with respect to
the weight to afford the mitigating circumstances.

This leaves Gleason's contention that the instruction prevented the jury from
giving meaningful effect to his asserted mitigating circumstance that "[a] term of
imprisonment is sufficient to defend and protect the people's safety from Sidney
Gleason." This argument fails as well.

Even if we accept for the sake of argument this assertion is true, we are not
convinced the jury would have reached a different verdict had it considered Gleason's
assertion. The jury was instructed that Gleason faced a minimum of 25 years of

25
imprisonment were it not to impose the death penalty, so it was keenly aware Gleason
would not be a threat to the public for at least two and a half decades. Nevertheless, the
jury returned a verdict of death. Moreover, future dangerousness was not central to
Gleason's mitigation defense because he focused on his family and upbringing. Finally,
we note again the jury found the existence of all four aggravating circumstances alleged
by the State. Accordingly, we conclude the assumed instructional error does not require
reversal under federal or state law.

PENALTY-PHASE VERDICT FORMS

When this case was first heard, Gleason claimed the verdict forms provided to the
jury in the penalty phase were not adequate to protect his right to be free from double
jeopardy as guaranteed by the Fifth Amendment to the United States Constitution and
interpreted by Sattazahn v. Pennsylvania, 537 U.S. 101, 108, 123 S. Ct. 732, 154 L. Ed.
2d 588 (2003). We determined in Gleason I this issue was not ripe for appellate review.
State v. Gleason, 299 Kan. 1127, 1198, 329 P.3d 1102 (2014) (Gleason I); see also State
v. Burnett, 293 Kan. 840, 849-50, 270 P.3d 1115 (2012) (issue is not ripe until
defendant's capital conviction is overturned and the State attempts to punish defendant
again for the same crime). Because the prerequisites for this claim have not occurred,
Gleason's double jeopardy argument is still not ripe for review.

CUMULATIVE ERROR DURING PENALTY PHASE

Our review of a claim of cumulative error in the penalty phase involves a two-step
analysis. Kleypas II, 305 Kan. at 346. First, we must determine whether any of the guilt-
phase errors must be considered in conjunction with penalty-phase errors. See State v.
Cheever, 304 Kan. 866, 902-03, 375 P.3d 979 (2016) (Cheever II) ("[C]ertain guilt-phase
errors . . . could be of such a nature that they impact the sentencing determination when
the same jury decides both guilt and sentence."). Second, we must determine whether the

26
total cumulative effect of the errors, viewed in the light of the record as a whole, had no
reasonable possibility of changing the jury's ultimate conclusion regarding the weight of
the aggravating and mitigating circumstances. Kleypas II, 305 Kan. 224, Syl. ¶ 37. In
reaching this determination, the overwhelming nature of the evidence is a factor to be
considered, but its impact is limited. "The question before the court is not what effect the
error might generally be expected to have upon a reasonable jury but, rather, what effect
it had upon the actual sentencing determination in the case on review." Kleypas II, 305
Kan. 224, Syl. ¶ 37.

The Gleason I court previously identified three unrelated "procedural" guilt-phase
errors: (1) the district court's instruction that another trial would be a burden on both
sides; (2) witnesses testifying in jail clothes; and (3) the district court's failure to answer a
jury question in open court with Gleason present. None can be reasonably seen to carry
through to the penalty phase, and Gleason makes no argument that they did. 299 Kan. at
1184.

As to penalty-phase errors, we have identified one error relating to the mitigating
circumstances burden of proof under state law and we have assumed another with respect
to Gleason's claim on Instruction 11. We have addressed both errors under the applicable
standard of review and found no clear error.

In considering their cumulative effect, we note both were instructional errors. But
we do not perceive they had the effect of intensifying one another. The first involved the
district court's failure to give an instruction regarding the burden of proof for mitigating
circumstances. The second, which we assumed, involved Gleason's claim that Instruction
11 prevented the jury from considering an asserted mitigating circumstance. Neither of
these intersect.

27
 Logically, our generous assumption in Gleason's favor that the jury failed to
consider one of his mitigating circumstances in total precludes a finding that he could
have suffered further prejudice from the failure to instruct the jury that that mitigating
circumstance need not be proven beyond a reasonable doubt. Accordingly, we conclude
beyond a reasonable doubt that any cumulative effect of these two instructional errors in
the penalty phase had no reasonable possibility of changing the jury's ultimate conclusion
regarding the weight of the aggravating and mitigating circumstances.

CONCLUSION

For the foregoing reasons, we affirm Gleason's death sentence.

Affirmed.

***

STEGALL, J., concurring: I concur with the outcome of today's decision. But in
reaching the correct result, the majority insists on perpetuating an error in our capital
sentencing caselaw that has already been rejected and purportedly corrected by the
United States Supreme Court in Kansas v. Carr, 577 U.S. ___, 136 S. Ct. 633, 643, 646,
193 L. Ed. 2d 535 (2016). The post-Carr reemergence of our instructional rule requiring
capital juries in Kansas to be affirmatively "instructed that mitigating circumstances need
not be proved beyond a reasonable doubt" first appeared last year in State v. Cheever, 304
Kan. 866, Syl. ¶ 5, 375 P.3d 979 (2016) (Cheever II) (Stegall, J., not participating). Both
Cheever II and this case (Gleason II) are wrong on this issue, and I take the opportunity
here to register my dissent from Syllabus paragraph 4 above and Syllabus paragraph 5 in
Cheever II.

28
 The history of this issue in Kansas is robust. As recited by the majority opinions in
both Cheever II and Gleason II above, this court has repeatedly held "that the failure of
the district court to instruct the jury that mitigating circumstances need not be prove[d]
beyond a reasonable doubt required vacating each appellant's death sentence under the
Eighth Amendment" to the United States Constitution. Cheever II, 304 Kan. at 874
(reciting the holdings of State v. Carr, 300 Kan. 1, 303, 331 P.3d 544 [2014], State v.
Carr, 300 Kan. 340, 369-70, 329 P.3d 1195 [2014], and State v. Gleason, 299 Kan. 1127,
1196-97, 329 P.3d 1102 [2014] [Gleason I]). But all three of those decisions were
subsequently reversed by the United States Supreme Court on this precise issue. Carr,
136 S. Ct. at 643-44, 646.

In her lone dissent in Carr, Justice Sonia M. Sotomayor suggested that the United
States Supreme Court had improvidently granted review of this court's decisions in those
cases because "nobody disputes that the State of Kansas could, as a matter of state law,
reach the same outcome." 136 S. Ct. at 649 (Sotomayor, J., dissenting). Subsequently, in
Cheever II, this court accepted that implicit invitation to side-step the effect of the
Supreme Court's ruling in Carr and found—for the first time—a mandate for the
instructional rule in state law as opposed to the Eighth Amendment. 304 Kan. at 885. A
result, we noted, that was safely "outside the purview of the United States Supreme
Court." 304 Kan. at 884.

How this state law requirement was discovered only after the Supreme Court
pulled the Eighth Amendment rug out from under this court is unexplained. The mystery
is compounded by the fact that the Cheever II court explicitly reached the state law
question as an "unassigned error" reachable to serve "the ends of justice." 304 Kan. at
876-77. If the state law requirement announced in Cheever II has existed all along, and if
the ends of justice demanded announcing and protecting this requirement even when the
issue was not properly preserved by the parties, one may legitimately wonder—what took
so long?

29
 But the reasonable inference that Cheever II's rationale grounded exclusively in
state law went unnoticed and unstated in our prior caselaw because no one thought there
was a state law basis for the rule does not, by itself, mean Cheever II is wrong. Other
inferences could be reasonably drawn—i.e., the issue was never raised as a state law
claim by the parties—and it is better to get the law right late than never get it right at all.

Nonetheless, the weakness of the majority's reasoning on this issue, coming as it
does on the heels of a reversal by the United States Supreme Court, leaves the impression
that "the majority apparently starts with what it views as a palatable result and works
backward to articulate a substitute rationale for demonstrably infirm precedent." Miller v.
Johnson, 295 Kan. 636, 690, 289 P.3d 1098 (2012) (Beier, J., concurring in part and
dissenting in part). It may not always be possible for courts to avoid casting a cynical
misimpression, but we should be more cognizant of the possibility and should take
greater pains to avoid it. Of course, a judge's primary shield against cynicism is the
unassailable strength of sound legal reasoning. So it is to the majority's reasoning I now
turn.

In this case, Gleason's jury was given the pre-2008 pattern instruction as follows:

"'The determination of what are mitigating circumstances is for you as jurors to
decide under the facts and circumstances of this case. Mitigating circumstances are to be
determined by each individual juror . . . . The same mitigating circumstances do not need
to be found by all members of the jury in order to be considered by an individual juror in
arriving at his or her sentencing decision.

....

"'. . . Each of you must consider every mitigating circumstance found to exist.'"
Gleason I, 299 Kan. at 1194 (quoting PIK Crim. 3d 56.00-D [2001 Supp.]).

30
Cheever's jury was likewise given the pre-2008 PIK Crim. 3d 56.00-D (2003 Supp.)
instruction. State v. Cheever, 295 Kan. 229, 266, 284 P.3d 1007 (2012) (Cheever I).
Similar instructional language was given to the Carr jury. See 300 Kan. at 302-03.

Compare these instructions with the statutory standard as set forth 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 . . . ." K.S.A. 21-4624(e).

Clearly, the instructions at issue mimic the statutory requirement that mitigating
factors must be considered by individual jurors when they are "found to exist." It is
important to ask why, then, are these instructions erroneous as a matter of state law?
More specifically, what is the state law basis for the Cheever II rule that it is error for a
capital jury in Kansas to be instructed according to the plain language of K.S.A. 21-
4624(e)?

No one disputes that the plain and unambiguous language of K.S.A. 21-4624(e)
requires the State to prove aggravating factors beyond a reasonable doubt but imposes a
mere burden of production on capital defendants to show mitigating circumstances. No
one disputes that the Kansas statute provides more favorable evidentiary rules for capital
defendants than the Eighth Amendment requires. The Cheever II court's focus—repeated
here in Gleason II—on these two noncontroversial conclusions distracts attention from
the real question at the heart of all of these cases: When a capital jury is instructed
according to the language of the statute—i.e., "'The State has the burden to prove beyond
a reasonable doubt that there are one or more aggravating circumstances and that they are
31
not outweighed by any mitigating circumstances found to exist,'" Cheever II, 304 Kan. at
877 (quoting Carr, 136 S. Ct. at 643)—is there any reasonable likelihood the jury will be
confused and fail to consider any relevant mitigating circumstances?

The Supreme Court's "reasonable likelihood" test asks a similar question:
"[W]hether there is a reasonable likelihood that the jury has applied the challenged
instruction in a way that prevents the consideration of constitutionally relevant evidence."
Boyde v. California, 494 U.S. 370, 380, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990).
Applying Boyde in Gleason I we framed our decision this way: "[W]e conclude a
reasonable likelihood exists that the jury applied the mitigating circumstances instruction
in a manner precluding individual jurors from properly considering relevant mitigating
evidence as required by the Eighth Amendment." Gleason I, 299 Kan. at 1197; see Carr,
300 Kan. at 369-70; Carr, 300 Kan. at 302-03 (holding that "[w]hen nothing in the
instructions mentions any burden other than 'beyond a reasonable doubt,' jurors may be
'prevented from giving meaningful effect or a reasoned moral response to' mitigating
evidence, implicating a defendant's right to individualized sentencing under the Eighth
Amendment").

Today's decision, like the Cheever II decision before it, concludes that even
though the United States Supreme Court has made it abundantly clear that the Eighth
Amendment does not require juries to consider mitigating circumstances not proved
"beyond a reasonable doubt"—our statute does require it. Thus, "K.S.A. 21-4624(e)
provides greater protection to a death-eligible defendant than required by the federal
Constitution." Cheever II, 304 Kan. 866, Syl. ¶ 5. But the maneuver of substituting the
requirements of K.S.A. 21-4624(e) for the requirements of the Eighth Amendment in our
legal calculus should not fundamentally alter the substantive purpose of our review—to
decide whether a jury could have been misled into not considering certain mitigating
circumstances that, by law, should have been considered. As this court put it in Gleason I
when answering that question in the affirmative, "Gleason's jury was left to speculate as

32
to the correct burden of proof for mitigating circumstances, and reasonable jurors might
have believed they could not consider mitigating circumstances not proven beyond a
reasonable doubt." 299 Kan. at 1197.

Shifting the locus of the legal requirement from federal constitutional law to state
statutory law certainly changes which court has the "final say" on the matter. But the
source of the law being applied should be irrelevant to a determination of whether the
specific instruction adequately communicated the content of the law to the jury such that
we have confidence, as a reviewing court, that the jury understood and applied the correct
legal standard. Put another way, Boyde's "reasonable likelihood" test should apply
whenever a capital defendant asserts that an instruction fails to adequately communicate
the proper legal standard (whether constitutional or statutory) concerning the
consideration of mitigating circumstances.

The majority asserts there is no reason to apply this test to questions of state law.
On this point, our recent decision in State v. Kleypas, 305 Kan. 224, 382 P.3d 373 (2016),
is instructive. Kleypas asserted a constitutional claim that the instructions his jurors
received prevented them from considering the constitutionally relevant mitigating
circumstance of mercy. We applied our traditional "legally and factually appropriate"
rubric when analyzing the claim and held:

"[W]hen a claim is made in the penalty phase of a death penalty case that jury
instructions impermissibly restrict a jury's consideration of evidence relevant to
mitigating factors and, therefore, violate the Eighth Amendment to the United States
Constitution, the proper inquiry for legal appropriateness is whether there is a reasonable
likelihood that the jury has applied the challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence. This test is not a harmless error test.
Rather it is the test for determining, in the first instance, whether an instructional error
occurred." Kleypas, 305 Kan. 224, Syl. ¶ 24.

33
 I am unable to conjure any compelling reason (the majority does not offer one) to
abandon the reasonable likelihood test for legal appropriateness just because we are
talking about statutorily relevant mitigating circumstances as opposed to constitutionally
relevant mitigating circumstances. Simply restyling an identical constitutional claim as a
state law claim—as Gleason does here—should not result in shifting the "reasonable
likelihood" inquiry from the error analysis to the prejudice analysis as the majority
purports to have done.

Given this, the proper question before us now must be: Is there a reasonable
likelihood that the jury as instructed in this case applied the mitigating circumstances
instruction so as to preclude individual jurors from properly considering relevant
mitigating evidence as required by K.S.A. 21-4624(e)? The majority opinions in Cheever
II and here in Gleason II skip this question entirely. This is unsurprising given that the
Supreme Court already effectively answered that question in a way that fatally
undermines the outcomes we have reached.

In its opinion, the Supreme Court held that even if the Eighth Amendment
contained the same requirements as K.S.A. 21-4624(e), the instructions given in this case
would not have caused reasonable jurors to believe they could not consider mitigating
circumstances not proved beyond a reasonable doubt.

"The juxtaposition of aggravating and mitigating circumstances, so goes the argument,
caused the jury to speculate that mitigating circumstances must also be proved beyond a
reasonable doubt. [Citation omitted.] It seems to us quite the opposite. The instruction
makes clear that both the existence of aggravating circumstances and the conclusion that
they outweigh mitigating circumstances must be proved beyond a reasonable doubt;
mitigating circumstances themselves, on the other hand, must merely be 'found to exist.'
. . . 'Found to exist' certainly does not suggest proof beyond a reasonable doubt. . . . Not
once do the instructions say that defense counsel bears the burden of proving the facts
constituting a mitigating circumstance beyond a reasonable doubt—nor would that make

34
 much sense, since one of the mitigating circumstances is (curiously) 'mercy,' which
simply is not a factual determination.

"We reject the Kansas Supreme Court's decision that jurors were 'left to speculate
as to the correct burden of proof for mitigating circumstances.' [Citation omitted.] For the
reasons we have described, no juror would reasonably have speculated that mitigating
circumstances must be proved by any particular standard, let alone beyond a reasonable
doubt. . . . Jurors would not have misunderstood these instructions to prevent their
consideration of constitutionally relevant evidence." Carr, 136 S. Ct. at 643-44.

While this discussion is not technically binding in law on this court in the context
of state law, it should be binding in logic and reason. If jurors "would not have
misunderstood these instructions to prevent their consideration of constitutionally
relevant evidence," 136 S. Ct. at 644, how can we justifiably conclude that jurors would
misunderstand these instructions to prevent their consideration of statutorily relevant
evidence? The distinction makes no sense. The majority here, as in Cheever II, cannot
answer this question and so it does not ask it.

Remarkably, the Supreme Court was not the first to arrive at this conclusion. The
author of today's decision dissented in Gleason I on this very point, arguing persuasively
that there is "nothing in the instructions from which to conclude the jury was bewildered
by them, or that there is a reasonable likelihood the jurors applied them in a way that
prevented their full consideration of Gleason's mitigating factors evidence." Gleason I,
299 Kan. at 1213 (Biles, J., dissenting). I agree with Justice Dan Biles on this issue—
albeit not today.

Moreover, there has never been any suggestion that the language of K.S.A. 21-
4624(e) is ambiguous or unclear. To the contrary, its meaning is plain and is clearly
communicated through the legislature's choice of ordinary words with ordinary meanings.
See State v. Barlow, 303 Kan. 804, 813, 368 P.3d 331 (2016) (explaining that absent an

35
ambiguity, the plain meaning of the words chosen by the legislature will control and
courts will not add words to the law). There may be circumstances in which a statutory
rule for jury deliberation is ambiguous, thus requiring a judicially crafted explanatory
instruction to be given to a jury charged with applying such a statute. But I suggest that
when a statute's meaning is plain on its face, reading that same language to a jury in the
form of an instruction cannot cause the jury to misunderstand the legal standard
embodied in the statute.

Finally, today's majority attempts to buttress its decision by suggesting that it is
doing nothing more than imposing a "legally appropriate" instruction under state law. See
slip op. at 9. But the instruction as given was legally appropriate, and the majority does
nothing to dispel this conclusion. Indeed, the only plausible suggestion as to it being
inappropriate came in Gleason I, Cheever I, and Carr—viz., that it would lead jurors
astray and prevent them from considering mitigating circumstances "found to exist." See
K.S.A. 21-4624(e). As just demonstrated, that suggestion has been thoroughly
discredited. Just because the instruction the majority demands is a correct statement of
the law does not mean it is error not to give it. For example, an instruction that told the
jury "mitigating circumstances need not be proved by clear and convincing evidence" is
likewise a correct statement of the law. Is the fact that Gleason's jury was not given this
instruction also an "unassigned" error? Accepting the majority's analysis would force one
to answer in the affirmative, but such a result is plainly absurd.

What remains? Only the reassurance of the majority that the "error" has been
found harmless. But what of future cases in which this precedent will be applied in
circumstances that demand reversal for such an instructional "error"—e.g., in cases not
applying a clear error standard of review? See, e.g., Gleason II, slip op. at 40 (Johnson,
J., dissenting) (arguing that this instructional error would be reversible error were it not
for the clear error standard which should not apply in capital cases). Our harmlessness

36
tests should not be applied as a backstop to prevent legally questionable rulings from
producing unjust results.

The mitigating circumstances instruction given in this case was not confusing and
contained the correct legal standard. That should end our inquiry. I would find no error in
the instruction as given.

***

LUCKERT, J., concurring in part and dissenting in part: I write separately to
explain that nothing in this decision changes my separate opinion in State v. Gleason, 299
Kan. 1127, 1199-1210, 329 P.3d 1102 (2014) (Gleason I), rev'd and remanded sub nom.
Kansas v. Carr, 577 U.S. ___, 136 S. Ct. 633, 193 L. Ed. 2d 535 (2016), in which I
concurred in part and dissented in part. I still conclude: (1) The district court's admission
of Damien Thompson's preliminary hearing testimony violated Sidney Gleason's
constitutional right to confront witnesses; (2) the district court abused its discretion when
it denied Gleason's motion for a mistrial; (3) these errors require reversal of Gleason's
convictions for capital murder, aggravated kidnapping, and criminal possession of a
firearm and a remand for a new trial on these charges; (4) the errors did not impact
Gleason's conviction for aggravated robbery and that conviction should be affirmed; and
(5) a new sentencing proceeding should be conducted on the aggravated robbery
conviction and convictions, if any, that result from a retrial.

Separately considering the issues discussed by the majority in today's opinion, I
concur with the majority's reasoning. That means I would not reverse Gleason's capital
sentence based solely on any of today's issues. Nevertheless, for the reasons discussed in
my separate opinion in Gleason I, I dissent from the majority's conclusion that Gleason's
capital sentence should be affirmed. Because guilt-phase errors entitle Gleason to a new
trial on the capital murder charge, his capital murder sentence should be vacated and his

37
case remanded to the district court for a new trial. In addition, I have no doubt
Thompson's testimony prejudiced Gleason's right to a fair penalty-phase trial.

In seeking the death penalty, the State argued Gleason knowingly or purposely
killed or created a great risk of death to more than one person. Thompson's testimony
provided direct evidence—indeed, arguably the only direct evidence—of this aggravator.
Specifically, Thompson testified that Gleason shot Darren Wornkey. And, although
Thompson confessed to shooting Mikiala "Miki" Martinez, he also testified that Gleason
had walked toward Martinez with "his arm . . . extended outward with the gun in hand"
and with the intent to shoot Martinez before Thompson intervened and killed her himself.
Thompson also testified that Gleason watched while Thompson strangled and shot
Martinez. In light of this testimony, I conclude there exists a strong possibility the
erroneous admission of this evidence contributed to the jury verdict sentencing Gleason
to death.

BEIER, J., joins in the foregoing concurring and dissenting opinion.

***

JOHNSON, J., dissenting: I dissent on multiple grounds. First, I agree with that part
of Justice Luckert's separate opinion determining that Gleason's capital murder
conviction should have been reversed for a new trial based upon the additional trial errors
of unconstitutionally admitting Damien Thompson's preliminary hearing testimony and
denying Gleason's motion for a mistrial. Likewise, I, too, have no doubt that Thompson's
testimony prejudiced Gleason's right to a fair penalty-phase trial, thereby rendering the
death sentence unreliable.

The majority engages in an analysis of whether errors during the guilt phase of the
trial impacted the sentencing phase, but it chooses not to have the current court make the

38
determination of the guilt-phase errors to be used in that calculus. Instead, it invokes the
prudential doctrines of law of the case and preservation to restrict the analysis to only
those guilt-phase trial errors previously found by a minority of the currently sitting court,
i.e., only three members of the current majority rejected the trial errors asserted in Justice
Luckert's dissent, which three members of the current court have asserted. Ironically, the
majority relies on State v. Kleypas, 305 Kan. 224, 245, 382 P.3d 373 (2016) (Kleypas II),
to justify its use of the discretionary law of the case doctrine. But that case also set forth
the heightened scrutiny rule which is constitutionally required (not prudential) in death
penalty cases, to-wit:

"This court has, in several cases, noted that issues in a death penalty review are
subject to a heightened reliability standard. See, e.g., Carr, 300 Kan. at 284 (recognizing
need for heightened reliability); State v. Scott, 286 Kan. 54, 76, 183 P.3d 801 (2008)
(same); State v. Green, 283 Kan. 531, 545, 153 P.3d 1216 (2007) ('[I]n the context of a
capital sentence, this court has required a heightened degree of reliability.'); Marsh, 278
Kan. at 525 ('[T]here is a heightened scrutiny of trial proceedings in a capital case.');
Kleypas I, 272 Kan. at 1036 (observing 'heightened reliability requirements' apply to
capital sentencing under federal and state constitutions).

"A sentence of death is different from any other punishment, and accordingly
there is an increased need for reliability in the determination that death is the appropriate
sentence. See Beck, 447 U.S. at 637-38 (recognizing that a death sentence is a '"different
kind of punishment from any other which may be imposed in this country . . . in both its
severity and its finality"' [quoting Gardner v. Florida, 430 U.S. 349, 357-58, 97 S. Ct.
1197, 51 L. Ed. 2d 393 (1977)]; court has duty to set aside procedures that undermine the
reliability of the jury's determination)." Kleypas II, 305 Kan. at 274-75.

The majority's refusal to have the whole court look at all of the alleged trial errors
in the course of completing the penalty-phase analyses in this ongoing death penalty case
strikes me as a procedure that undermines the reliability of the appropriateness of the

39
death penalty. It looks more like hidden scrutiny than heightened scrutiny. Certainly, a
prudential doctrine should not trump a constitutionally required rule.

Further, I disagree with the majority's treatment of the jury instruction on
mitigation, just as I did in the case upon which the majority relies. See State v. Cheever,
304 Kan. 866, 906, 375 P.3d 979 (Johnson, J., dissenting). "As the dissent in Kansas v.
Carr, 577 U.S. ___, 136 S. Ct. 633, 650, 193 L. Ed. 2d 535 (2016) (Sotomayor, J.,
dissenting), recognized, our reversal in Gleason rested in part 'on some lower courts'
failure to give instructions reflecting the Kansas Supreme Court's "repeated recognition
of the required content"' of the mitigating circumstances jury instruction." Cheever, 304
Kan. at 905. It has been a state-court rule since State v. Kleypas, 272 Kan. 894, 40 P.3d
139 (2001) (Kleypas I), not solely a federal constitutional question. The reason for that
state rule is that if a jury is to be charged with the grave responsibility of determining
whether to recommend a death sentence, it should be told explicitly what it is to decide
and how each juror is to go about reaching his or her decision. Anything less fails the
constitutionally required heightened reliability standard.

Moreover, in a death penalty case, K.S.A. 2015 Supp. 21-6619(b) requires that this
court "consider . . . any errors asserted in the review and appeal." That statute by its clear
terms trumps the ordinary preservation rule for instructional error set forth in K.S.A. 22-
3414(3). Accordingly, the clearly erroneous reversibility standard that we employ under
K.S.A. 22-3414(3) in noncapital cases should have no place in our review of the jury
instructions given to a death penalty jury, which are always reviewable without
preservation.

Finally, I would go even further and permanently vacate the death sentence,
principally based on the prohibition against inflicting "cruel or unusual punishment" set
forth in § 9 of the Kansas Constitution Bill of Rights. See State v. Robinson, 303 Kan. 11,

40
351, 363 P.3d 875 (2015) (Johnson, J., dissenting), cert. denied 137 S. Ct. 164 (2016),
disapproved of on other grounds by Cheever, 304 Kan. at 902. In that regard, I reiterate
the rationale I previously borrowed from the dissent in Glossip v. Gross, 576 U.S. ___,
135 S. Ct. 2726, 2755-77, 192 L. Ed. 2d 761 (2015) (Breyer, J., joined by Ginsburg, J.,
dissenting). Robinson, 303 Kan. at 351.

41