State v. Carr

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 90,044

STATE OF KANSAS,
Appellee,

v.

REGINALD DEXTER CARR JR.,
Appellant.

SYLLABUS BY THE COURT

1.
Whether a statute is constitutional is a question of law.

2.
Section 1 of the Kansas Constitution Bill of Rights states, "All men are possessed
of equal and inalienable natural rights, among which are life, liberty, and the pursuit of
happiness." The rights guaranteed under section 1 are judicially enforceable against
governmental action that does not meet constitutional standards.

3.
The court applies a two-part framework to determine whether an asserted right or
declared interest under section 1 of the Kansas Constitution Bill of Rights is judicially
enforceable. First, the court determines whether the asserted right or declared interest is
included within the guarantees or protections of section 1. Under this step, the court
begins by carefully describing the asserted right. Then, it determines whether that
asserted right or declared interest is protected under section 1 by looking to the language
of the Kansas Constitution. When the words themselves do not make the drafters' intent

1
clear, courts look to the historical record, remembering the polestar is the intention of
the makers and adopters. If the asserted right or declared interest is established under
section 1, the court proceeds to the second part of the framework—exploring whether the
governmental action impairs the right and, if so, whether such governmental action
satisfies constitutional scrutiny.

4.
The historical record reflects the framers did not intend the term "inalienable" in
section 1 of the Kansas Constitution Bill of Rights to be construed as "absolute" and
"nonforfeitable." Instead, a careful reading of section 1, coupled with the transcripts of
the convention debate, demonstrates that the term "inalienable" refers only to one's ability
to transfer his or her right or interest to another person. Though inalienable, the framers
viewed the natural rights guaranteed within this section to be forfeitable in civil society.
So construed, the framers did not intend for section 1 to impede or limit the State's
authority to punish individuals for their criminal conduct.

5.
Section 1 of the Kansas Constitution Bill of Rights acknowledges a person's
inalienable right to life, but that right is not absolute or nonforfeitable. Once a defendant
has been convicted of capital murder beyond reasonable doubt, the defendant forfeits his
or her natural rights under section 1 ("among which are life, liberty, and the pursuit of
happiness") and the state may impose punishment for that crime pursuant to the
provisions of Kansas' capital sentencing scheme.

6.
Once a defendant has been lawfully convicted of capital murder, the imposition of
a capital sentence does not implicate section 1. However, other constitutional guarantees,
including those contained in sections 9 and 10 of the Kansas Constitution Bill of Rights,

2
continue to regulate the state's authority to punish and guard against arbitrary applications
of such authority.

7.
Section 5 of the Kansas Constitution Bill of Rights, which provides that "[t]he
right of trial by jury shall be inviolate," preserves the jury trial right as it historically
existed at common law when our state's Constitution came into existence.

8.
In ascertaining the meaning of a constitutional provision, the primary duty of the
courts is to look to the intention of the makers and adopters of that provision. A
constitutional provision is not to be narrowly or technically construed, but its language
should be interpreted to mean what the words imply to persons of common
understanding.

9.
As used in section 5 of the Kansas Constitution Bill of Rights, the term "jury"
denotes a legally selected group of persons sworn to determine issues of fact and return a
decision based on the evidence and in accordance with the law as instructed.

10.
The process of death qualification under K.S.A. 22-3410 removes only those
prospective jurors who are excluded from the constitutional definition of a "jury," and
therefore neither the statute nor the process of death qualifying the jury implicate any
right protected under section 5 of the Kansas Constitution Bill of Rights.

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11.
Section 5 of the Kansas Constitution Bill of Rights does not require that juror
qualification or selection standards enacted by the Legislature be affirmatively authorized
by the common law. Rather, that provision merely preserves the right to jury trial as it
existed at common law when the Kansas Constitution was adopted.

12.
When reviewing the legal propriety of penalty phase instructions addressing
mitigating circumstances, the court must consider whether the instructions, considered
together as a whole, fairly and accurately state the applicable law, and whether a jury
could have been misled into not considering certain mitigating circumstances that, by
law, should have been considered.

13.
K.S.A. 21-4624(e), now codified as K.S.A. 2020 Supp. 21-6617(e), does not
require a jury to be instructed on the burden of proof for mitigating circumstances in the
penalty phase of capital sentencing proceedings, overturning the holding in State v.
Cheever, 306 Kan. 760, Syl. ¶ 5, 402 P.3d 1126 (2017).

14.
Under the law of the case doctrine, when a second appeal is brought to this court
in the same case, the first decision is the settled law of the case on all questions involved
in the first appeal, and reconsideration will not normally be given to such questions.

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15.
State law error during the penalty phase of a capital murder trial may be deemed
harmless where the party benefitting from the error shows there is no reasonable
probability the error affected the jury's ultimate conclusion regarding the death sentence
verdict.

16.
The avoidance-of-arrest statutory aggravating circumstance, K.S.A. 2020 Supp.
21-6624(e), effectively channels the discretion of the sentencer and is not facially
overbroad.

17.
In Kansas capital sentencing proceedings, the Confrontation Clause in the Sixth
Amendment to the United States Constitution applies only to testimonial hearsay relevant
to the jury's eligibility decision, i.e., evidence relevant to the existence of one or more
statutory aggravating circumstances. A defendant's confrontation rights do not extend to,
and are not implicated by, testimonial hearsay offered to impeach or rebut defendant's
mitigation witnesses.

18.
An expert's reliance on testimonial hearsay does not constitute a violation of the
Confrontation Clause in the Sixth Amendment to the United States Constitution per se.
Instead, the controlling question is whether the expert is testifying as a witness in his or
her own right or testifying as a mere "conduit" for the testimonial hearsay. The
Confrontation Clause forecloses the expert's opinion testimony only in the latter situation.
The problem of expert-as-conduit is not the amplification of multiple experts' opinions
but the fact that the so-called expert is not actually giving expert testimony.

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19.
Under the facts of the case, the State's expert witness was not a mere conduit for
the opinions of others and thus his testimony did not violate the Confrontation Clause in
the Sixth Amendment to the United States Constitution; although the expert witness
vaguely asserted that other experts agreed with him, he offered an independent opinion
and interpretation of PET (positron emission tomography) scans based on his own
synthesis of the evidence.

20.
During the penalty phase of a capital murder trial, any error that arises solely
under state law may be deemed harmless if the court is persuaded there is no reasonable
probability the error affected the jury's ultimate conclusion regarding the weight of the
aggravating and mitigating circumstances, i.e., the death sentence verdict.

21.
The court applies a four-step analysis to review jury instruction challenges. It first
considers the reviewability of the issue, which is then followed by reviewing whether the
instruction was legally and factually appropriate. If the court concludes there is error, it
then turns to reversibility. Where a death penalty defendant fails to request or object to an
instruction, the court applies the clearly erroneous standard of review and determines
whether it is firmly convinced that the jury would have reached a different verdict had the
instruction error not occurred.

22.
Under the facts of the case, the jury instructions and verdict forms, viewed
together as a whole, made clear that "the crime" referenced in the aggravating
circumstances instruction was capital murder.

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23.
Under the facts of the case, the jury instruction describing the verdict forms, which
improperly used a double negative in the grammatical structure of the sentence describing
the statutory weighing equation under Kansas' capital sentencing scheme, was not clearly
erroneous because the error was not readily noticeable and the jury's use of Verdict Form
1 on all counts indicated that jurors employed the proper statutory weighing equation and
determined beyond reasonable doubt that aggravating circumstances existed and
outweighed mitigating circumstances, thereby warranting a sentence of death.

24.
The district court's failure to instruct the jury that it must find the defendant was at
least 18 years old at the time of the offense, as a condition precedent to imposing the
death penalty, constitutes error. But such error is subject to a harmless error analysis.

25.
Under the facts of the case, the district court's failure to instruct the jury that it
must find defendant was at least 18 years old at the time of the offense in order to impose
capital punishment was harmless because the issue was not contested and the undisputed
evidence established that the defendant was 23 years old when the crime occurred.

26.
The district court's refusal to instruct the jury that "[y]ou must not draw any
inference of guilt from the fact that the defendant did not testify, and you must not
consider this fact in arriving at your verdict," as requested by the defendant, was not
erroneous; although the requested instruction was appropriate for the guilt phase, it was
not legally appropriate in the penalty phase after guilt had been adjudicated.

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27.
The court applies a two-step framework in analyzing claims of prosecutorial error.
Under the first step, the court considers whether prosecutorial error occurred by
determining whether the prosecutorial acts complained of fall outside the wide latitude
afforded prosecutors to argue the State's case and attempt to obtain a verdict in a manner
that does not offend the defendant's constitutional right to a fair trial. If error is found, the
court advances to the second step and determines whether the error prejudiced the
defendant's due process right to a fair trial.

28.
When analyzing prosecutorial error claims that implicate both constitutional and
nonconstitutional claims of error, the court need only address the more demanding
federal constitutional error standard. Under the federal constitutional error standard,
prosecutorial error is harmless if the State demonstrates beyond a reasonable doubt the
error complained of did not affect the trial's outcome in light of the entire record, i.e.,
when there is no reasonable possibility the error contributed to the verdict.

29.
In analyzing claims of prosecutorial error in the penalty phase of capital
proceedings, the overwhelming nature of evidence is to be considered, but its impact is
limited. To the extent there was constitutional error, the question is not what effect the
error might generally be expected to have upon a reasonable jury but what effect it had
upon the actual verdict in the case at hand. The inquiry, in other words, is not whether,
in a trial that occurred without the error, a verdict for death would surely have been
rendered, but whether the death verdict actually rendered in this trial was surely
unattributable to the error. If more than one prosecutorial error occurred in the
proceedings, the court considers the net prejudicial effect of those errors using the same
federal constitutional error standard applied to the individual errors.

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30.
The Eighth Amendment to the United States Constitution guarantees a capital
defendant a right to an individualized sentencing determination, meaning the sentencer
may not 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. It does not matter whether the barrier to the
sentencer's consideration of all mitigating evidence is interposed by statute, by a trial
court's evidentiary ruling, by jury instructions, or by prosecutorial argument.

31.
A capital sentencing jury must consider all relevant mitigating evidence, and such
evidence need not excuse or justify the crime or in fact relate to the defendant's
culpability as long as it serves as a basis for a sentence less than death. But the State has a
competing interest in challenging whether a circumstance is mitigating at all and to
contest the weight the jury should give to a mitigating circumstance.

32.
It is improper for a prosecutor to argue that certain circumstances should not be
considered as mitigating circumstances because they do not excuse or justify the crime.
Mitigating circumstances are those which in fairness may be considered as extenuating or
reducing the degree of moral culpability or blame or which justify a sentence of less than
death, even though they do not justify or excuse the offense. A prosecutor who argues
that mitigating circumstances must excuse or justify the crime improperly states the law.

33.
A prosecutor's argument concerning mitigation evidence violates requirements
under the Eighth Amendment to the United States Constitution when the State cuts off in

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an absolute manner the sentencer's consideration of such evidence. But comments that the
defendant's mitigating evidence is entitled to little or no weight based on the
circumstances of the case are constitutionally permissible.

34.
A prosecutor may properly argue a defendant is undeserving of mercy, so long as
there is no contention the jury's exercise of mercy is prohibited.

35.
Under the facts of the case, the prosecutors' argument did not misstate the law
concerning mitigating circumstances where the prosecutor never argued or implied the
jury could not consider the mitigation evidence unless it excused or justified the murders;
while the prosecutor questioned whether that mitigation justified the defendant's conduct,
this was consistently argued in the context of whether the circumstance reduced the
defendants' moral culpability or blame in a way that supported a sentence less than death;
and the defendants first suggested a relationship between the crimes and the mitigation
evidence by arguing a variety of medical, genetic, familial, environmental, societal, and
situational circumstances caused the defendants to commit the crime.

36.
Generally, a prosecutor is precluded from offering personal opinions about witness
credibility, and the court has applied the same rule in capital sentencing proceedings.

37.
Under the facts of the case, the prosecutor's statement "when the truth comes out"
was an impermissible expression of opinion intended to bolster the credibility of the
State's expert witness, but the death penalty verdict was surely unattributable to this

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isolated comment, which was a clumsy effort to turn a phrase more than a definitive
statement about the "truth."

38.
In the penalty phase of a capital murder trial, a prosecutor may argue that a
defendant deserves no mercy because he or she showed none to the victims, as long as
the prosecutor does not argue the jury is precluded from considering mercy in its
sentencing decision.

39.
Generally, a prosecutor has wide latitude in crafting arguments. Nevertheless, the
arguments must accurately reflect the evidence, accurately state the law, and cannot be
intended to inflame the passions or prejudices of the jury or to divert the jury from its
duty to decide the case based on the evidence and the controlling law.

40.
A "golden rule" argument is the suggestion by counsel that jurors should place
themselves in the position of a party, a victim, or the victim's family members. Such
arguments are generally improper and may constitute reversible error. The reason
"golden rule" arguments are not permitted is because they encourage the jury to depart
from neutrality and to decide the case on the improper basis of personal interest and bias.

41.
Under the facts of the case, the prosecutor did not make an improper "golden rule"
argument by referencing the murder victims' inability to form relationships where the
argument did not place the jury in the victims' shoes, but instead responded directly to the
defendant's argument about his ability to form relationships or attachments if sentenced
to life imprisonment and implied that the jury should give little weight to this evidence.

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42.
The wide latitude permitted a prosecutor in discussing the evidence during closing
argument in a criminal case includes at least limited room for rhetoric and persuasion,
even for eloquence and modest spectacle. It is not opening statement; it is not confined to
a dry recitation of the evidence presented.

43.
Generally, a prosecutor's argument that implies the jury may violate its sworn oath
has more force and carries greater potential for unfair prejudice than an argument that the
facts and applicable law compel a death sentence.

44.
Cumulative error analysis aggregates all errors and assesses whether their
cumulative effect is such that they cannot be determined to be harmless, even though
individually those errors are harmless. In assessing cumulative error in the penalty phase
of a capital trial, the errors aggregated include any errors in the guilt-phase proceedings
the court determines must be considered in conjunction with the penalty-phase errors. In
addition, the errors aggregated include those penalty-phase errors assumed by the court.
And they include penalty-phase jury instruction errors not raised in the district court that
are not clearly erroneous standing alone.

45.
When reviewing cumulative error in a capital penalty-phase proceeding, the
court's focus is on the errors' cumulative effect on the jury's ultimate conclusion
regarding the weight of the aggravating and mitigating circumstances. In other words, we
are looking for the errors' effect in their aggregate, recognizing errors can differ in their
individual or cumulative effect. This task is undoubtedly more subtle than simply

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counting up the number of errors discovered. Ultimately, the court must determine
whether the errors' cumulative effect, viewed in the light of the record as a whole, had
little, if any, likelihood of changing the jury's conclusion. When any errors being
aggregated in a cumulative error analysis are constitutional in nature, the cumulative
error must be harmless beyond a reasonable doubt.

Appeal from Sedgwick District Court; PAUL W. CLARK, judge. Opinion on remand filed January
21, 2022. Affirmed.

Debra J. Wilson, of Capital Appeals and Conflicts Office, argued the cause, and Reid T. Nelson,
of the same office, was with her on the briefs for appellant.

David Lowden, special appointed prosecutor, argued the cause, and Marc Bennett, district
attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

Sharon Brett, of ACLU Foundation of Kansas, of Overland Park, and Cassandra Stubbs, pro hac
vice, and Brian W. Stull, pro hac vice, of American Civil Liberties Union Foundation, of Durham, North
Carolina, were on the brief for amici curiae Concerned Conservatives About the Death Penalty, Kansas
Coalition Against the Death Penalty, Dalton Glasscock, Steve Becker, Al Terwelp, Bob Weeks, Carolyn
Zimmerman, Celeste Dixon, Bill Lucero, Msgr. Stuart Swetland, Catholic Mobilizing Network,
Dominican Sisters and Associates of Peace of the Roman Catholic Church, Mount St. Scholastica, Sisters
of Charity of Leavenworth Office of Justice, Peace, and Integrity of Creation, Sister Christina Meyer,
Bishop Ruben Saenz Jr., Robert Sanders, Michael Birzer, and the American Civil Liberties Union and
ACLU of Kansas.

Alice Craig, of Lawrence, was on the brief for amicus curiae Midwest Innocence Project, joined
by Witness to Innocence and Floyd Bledsoe.

Elizabeth Cateforis, Clinical Professor of Law, University of Kansas School of Law, of
Lawrence, and Alexis J. Hoag, pro hac vice, Lecturer and Associate Research Scholar, Columbia Law
School, of New York, New York, were on the brief for amici curiae group of law professors and scholars.

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The opinion of the court was delivered by

WALL, J.: In State v. Carr, 300 Kan. 1, 331 P.3d 544 (2014) (R. Carr), rev'd and
remanded sub nom. Kansas v. Carr, 577 U.S. 108, 136 S. Ct. 633, 193 L. Ed. 2d 535
(2016) (Carr), our court affirmed one of Reginald Dexter Carr Jr.'s capital murder
convictions but vacated the death sentence after concluding the failure to sever the
penalty phase violated R. Carr's right to an individualized sentencing determination under
the Eighth Amendment to the United States Constitution. However, in Carr, the United
States Supreme Court held the failure to sever the defendants' penalty phase neither
implicated the Eighth Amendment nor offended protections afforded to R. Carr under the
Due Process Clause.

On remand, we now turn our attention to the penalty phase issues that remain
unresolved following the decision of the United States Supreme Court. In analyzing these
issues, we remain mindful that "given the myriad safeguards provided to assure a fair
trial, and taking into account the reality of the human fallibility of the participants, there
can be no such thing as an error-free, perfect trial, and that the Constitution does not
guarantee such a trial." United States v. Hasting, 461 U.S. 499, 508-09, 103 S. Ct. 1974,
76 L. Ed. 2d 96 (1983); see Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431,
89 L. Ed. 2d 674 (1986). While some of R. Carr's remaining issues demonstrate that his
trial was less than perfect, none suggest he received anything other than a fair trial.
Accordingly, we affirm Reginald Carr Jr.'s death sentence and hold this sentence was not
"imposed under the influence of passion, prejudice or any other arbitrary factor." K.S.A.
2020 Supp. 21-6619(c)(1).

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 FACTUAL AND PROCEDURAL BACKGROUND

As noted, in its previous decision, our court affirmed one of R. Carr's capital
murder convictions but vacated his death sentence, concluding his Eighth Amendment
right to an individualized sentencing determination was violated when the district court
refused to sever the penalty phase from that of his codefendant brother, Jonathan Carr.
See R. Carr, 300 Kan. at 315. In a companion decision, this court also vacated J. Carr's
death sentence for failure to sever the penalty phase. State v. Carr, 300 Kan. 340, 371,
329 P.3d 1195 (2014) (J. Carr), rev'd and remanded Carr, 577 U.S. 108.

The court's disposition at that time made it unnecessary to complete a full review
of the alleged penalty phase errors, although it considered some for guidance on remand.
Among those considered, the court noted the same Eighth Amendment individualized
sentencing concerns were implicated when the district court failed to instruct the jury
that mitigating circumstances need not be proved beyond a reasonable doubt. That
question proved dispositive in this court's decision to vacate the death sentence imposed
in another death penalty case. See State v. Gleason, 299 Kan. 1127, 329 P.3d 1102 (2014)
(Gleason I), rev'd and remanded sub nom. Carr, 577 U.S. 108.

The United States Supreme Court granted the State's petition for writ of certiorari
on the two Eighth Amendment issues in R. Carr, J. Carr, and Gleason I. It disagreed
with our court's Eighth Amendment analysis on both issues. The Court held the joint
sentencing proceedings neither implicated the Carrs' Eighth Amendment rights nor
violated their rights under the Due Process Clause. It also concluded that the Eighth
Amendment does not require Kansas penalty-phase juries to be instructed that mitigating
factors need not be proved beyond a reasonable doubt. Carr, 577 U.S. at 122, 126.

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 Shortly after that decision, but before the United States Supreme Court issued its
mandate, R. Carr filed a motion with our court arguing that the alleged instructional error
(the district court's failure to instruct jurors that the existence of mitigating factors need
not be proved beyond a reasonable doubt) required his death sentence to be vacated under
state law. After the high Court issued its mandate, R. Carr filed another motion arguing
that cumulative error required this court to vacate his death sentence. In his separate
appeal, J. Carr also requested this court rule on the instructional issue as a matter of state
law. On the same day, he asked for additional briefing on penalty phase issues left
undecided in our prior decision. The State filed responses.

Our court ordered supplemental briefing addressing the remaining penalty phase
issues, including cumulative error. Two extensions to the briefing schedule occurred at
the State's request and were granted pursuant to Supreme Court Rule 5.02 (2021 Kan. S.
Ct. R. 32). The parties' supplemental briefs were filed simultaneously on November 7,
2016. The court heard oral argument in both cases on May 4, 2017.

In April 2019, this court filed its opinion in Hodes & Nauser, MDs v. Schmidt, 309
Kan. 610, 638, 440 P.3d 461 (2019), holding that "section 1 [of the Kansas Constitution
Bill of Rights] establishes the judicial enforceability of rights that are broader than and
distinct from the rights described in the Fourteenth Amendment." In response to that legal
development, the defendants in all the then-pending capital appeals sought leave to raise
and brief a new issue challenging the constitutionality of the death penalty under section
1 of the Kansas Constitution Bill of Rights. R. Carr and J. Carr each made this request in
motions filed on May 7, 2019.

On June 19, 2019, after having received responses from the State, we granted the
defendants, including R. Carr and J. Carr, leave to file supplemental briefing to address
"what effect, if any, the decision in Hodes & Nauser v. Schmidt . . . has on the issue of

16
whether the Kansas death penalty is unconstitutional under § 1 of the Kansas Constitution
Bill of Rights."

R. Carr and J. Carr each filed supplemental briefs on August 16, 2019. In each
case, the State filed its brief in response on October 15, 2019. J. Carr filed a reply brief on
November 7, 2019, and R. Carr followed suit the next day.

On February 18, 2021, we scheduled both R. Carr's and J. Carr's cases for oral
argument on the May 24, 2021 docket. Various amici curiae sought and were granted
permission to file briefs.

In addition, the NAACP Legal Defense and Educational Fund, Inc. (LDF) sought
leave to participate in J. Carr's oral argument as a separately represented amicus curiae. In
its amicus brief, the LDF argued Kansas' death-sentencing scheme violates the right to
trial by jury under section 5 of the Kansas Constitution Bill of Rights. We denied the
LDF's motion to participate in oral argument but ordered the parties in J. Carr's case to be
prepared to address the issue at oral argument. On July 29, 2021, after oral argument had
concluded, R. Carr filed a motion requesting the court consider the same section 5
challenge in his appeal.

As with our previous decisions, this case necessarily covers many issues we must
also decide in J. Carr's case. We provide the reasoning for our decisions here. To the
extent possible, we retain the numbering applied to the issues in our previous decision,
although some are taken up in different order. See R. Carr, 300 Kan. at 255-58.

The facts were set forth fully in this court's original decision. 300 Kan. at 17-44,
258-75. In the "Discussion" section to follow, we highlight those facts as necessary to
resolve the issues we consider today.

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 DISCUSSION

For purposes of clarity and organization, we first address the constitutional
challenges R. Carr and J. Carr asserted under section 1 and section 5 of the Kansas
Constitution Bill of Rights. Then, we address R. Carr's motion to apply state law to the
burden-of-proof instruction for mitigating circumstances. Finally, we examine the
remaining claims of penalty phase error, including cumulative error.

I. Kansas' Capital Sentencing Scheme Does Not Violate Section 1 of the Kansas
Constitution Bill of Rights

While R. Carr's and J. Carr's appeals were pending, this court released its decision
in Hodes. In Hodes, the court held that section 1 of the Kansas Constitution Bill of Rights
protects a broader range of rights than the United States Constitution. 309 Kan. 610,
Syl. ¶ 6. Based on that decision, R. Carr and J. Carr claim that Kansas' statutory scheme
authorizing capital punishment is unconstitutional under section 1. More specifically,
R. Carr and J. Carr contend section 1 protects the right to life, and Kansas' capital
sentencing scheme unconstitutionally infringes upon this right.

A. Legal Framework and Standard of Review

"'Whether a statute is constitutional is a question of law.'" Hilburn v. Enerpipe
Ltd., 309 Kan. 1127, 1132, 442 P.3d 509 (2019). Historically, this court presumed
statutes to be constitutional and required alleged constitutional violations to be clearly
established in order to overcome this presumption. 309 Kan. at 1132 (quoting Board of
Johnson County Comm'rs v. Jordan, 303 Kan. 844, 858, 370 P.3d 1170 [2016]). But in
Hodes, a majority of the court rejected this presumption of constitutionality when the
interests protected by the Kansas Constitution are deemed "fundamental interests." 309

18
Kan. at 673-74 ("Section 1 protects an inalienable natural right of personal autonomy,
which [is] fundamental. Presuming that any state action alleged to infringe that right is
constitutional dilutes the protections established by our Constitution."). Other members
of our court have repudiated the presumption altogether. See In re A.B., 313 Kan. 135,
147-48, 484 P.3d 226 (2021) (Stegall, J., concurring; Wall, J., joining concurring
opinion). Regardless, based on established precedent, we apply no such presumption to
this section 1 challenge.

Section 1 of the Kansas Constitution Bill of Rights states, "All men are possessed
of equal and inalienable natural rights, among which are life, liberty, and the pursuit of
happiness." The rights guaranteed under section 1 are "judicially enforceable against
governmental action that does not meet constitutional standards." Hodes, 309 Kan. 610,
Syl. ¶ 7.

We apply a two-part framework to determine whether an asserted right or declared
interest is judicially enforceable under section 1—exploring whether the right itself is
protected by the constitutional provision and, if so, determining whether governmental
action unconstitutionally infringes upon that right. 309 Kan. at 620. Under the first part of
this analysis, we determine whether the asserted right or declared interest falls within the
purview of rights protected by section 1. 309 Kan. at 620. "'[T]he doctrine of judicial
self-restraint'" requires us to begin with "'a careful description of the asserted right.'"
Reno v. Flores, 507 U.S. 292, 302, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993) (in
substantive due process analysis the court carefully defines the nature of the interest to
determine whether it is properly characterized as fundamental). Doing so ensures a
proper nexus exists between the asserted right or declared interest and its constitutional
foundation within section 1. Once properly defined, we examine whether that asserted
right or declared interest is protected under section 1 by looking to the language of the
Kansas Constitution. State v. Albano, 313 Kan. 638, 644-45, 487 P.3d 750 (2021).

19
When the words themselves do not make the drafters' intent clear, we look to the
historical record, remembering "'"the polestar . . . is the intention of the makers and
adopters."'" 313 Kan. at 645 (quoting Hunt v. Eddy, 150 Kan. 1, 5, 90 P.2d 747 [1939]).

Second, if the asserted right or declared interest is protected under section 1, we
determine whether the challenged governmental action unconstitutionally infringes upon
it. See Hodes, 309 Kan. at 660. This requires the court to first determine whether the
governmental action impairs the right. See 309 Kan. at 672. If so, the court scrutinizes the
governmental action to determine whether it passes constitutional muster. See 309 Kan.
at 662-63.

Ultimately, we conclude that R. Carr's and J. Carr's section 1 challenge fails at the
first step of this two-part framework. Their asserted right to, or declared interest in, an
absolute, nonforfeitable right to life is not included in or part of the guarantees or
protections of section 1. Instead, the natural right to life is forfeitable, and the state's
imposition of the death penalty under Kansas' capital sentencing scheme does not
infringe upon the "inalienable" right to life protected under section 1. To reach this
conclusion, we first construe the meaning of an "inalienable" right to life under section 1.
Then, we demonstrate how this construction forecloses defendants' section 1 challenge.

B. The Framers Intended the Inalienable Right to Life to Be Forfeitable, Not
Absolute

R. Carr argues section 1 guarantees a right to life that necessarily precludes the
state from imposing capital punishment. We have no hesitation recognizing a right to life
under section 1. Unlike the implicit right to personal autonomy recognized in Hodes,
which found its source in the explicit rights of liberty and the pursuit of happiness, a
natural right to life is explicitly enumerated as one of the natural rights protected by
section 1.

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 But R. Carr defines this right broadly to preclude capital punishment, even where
a jury has convicted a defendant of capital murder and determined beyond reasonable
doubt that one or more statutory aggravating circumstances exist and outweigh mitigating
circumstances, as prescribed under Kansas' capital sentencing scheme. R. Carr's argument
is premised on the assumption that the right to life guaranteed within section 1 is
absolute, meaning the law cannot limit or infringe upon this right in any circumstance.
See Merriam-Webster.com Legal Dictionary, Merriam-Webster, https://www.merriam-
webster.com/legal/absolute%20right (defining "absolute right" as "a legally enforceable
right to take some action or to refrain from acting at the sole discretion of the person
having the right").

Whether the framers intended the right to life to be absolute cannot be ascertained
solely from the text of section 1 because the plain language does not define the scope and
contours of the natural rights guaranteed therein. As such, we must also turn to the
historical record to glean insight into the scope of this right as intended by the framers.
See Hunt, 150 Kan. at 5. We do so by first exploring the comments and remarks of the
framers during the Wyandotte Constitutional Convention debates. Additionally, we
analyze the theory of natural rights as developed through the writings of John Locke and
William Blackstone, given their historic significance in the development of American
constitutional frameworks and jurisprudence. Cf. Hodes, 309 Kan. at 639-41 (discussing
Locke's and Blackstone's influence on Kansas' founding documents).

1. The Wyandotte Convention Debates

"[T]he territorial legislature of 1859 approved a fourth and final constitutional
convention" for the Kansas Territory. See Kansapedia, Kansas Historical Society,
"Wyandotte Constitutional Convention," https://www.kshs.org/kansapedia/wyandotte-

21
constitutional-convention/17884. On June 17, 1859, 52 delegates were elected to gather
in Wyandotte, Kansas, on July 5 for this constitutional convention. See Simpson, The
Wyandotte Constitutional Convention, reprinted in Kansas Constitutional Convention
652 (1920) (hereinafter Convention).

While vigorous debate over specific language was the exception, delegates did
engage in extensive discussions regarding section 1. See Perdue, Address Before the
Kansas State Historical Society: The Sources of the Constitution of Kansas, in 7 Kansas
Historical Collections 130, 134 (1902). The initial proposal for section 1, developed by
the Preamble and Bill of Rights Committee, provided:

"'SECTION 1. All men are by nature equally free and independent, and have
certain inalienable rights, among which are those of enjoying and defending their lives
and liberties, acquiring, possessing and protecting property, and of seeking and obtaining
happiness and safety, and the right of all men to the control of their persons, exists prior
to law and is inalienable.'" Convention, at 271.

After initial proposed amendments to this section were soundly rejected, including
one disreputable attempt to exclude "negroes and mulattoes" from the phrase "all men,"
one of the proslavery delegates challenged the use of the term "inalienable" in section 1.
Convention, at 271. Delegate William McDowell suggested the language in proposed
section 1 created a hierarchy of laws that rendered natural rights absolute and subject to
no limitation under the law:

"MR. MCDOWELL. I think the language of this section is an enunciation of the
higher law principle, that 'the control of a man's person is above and prior to all law and
inalienable.' It is a provision I do not want to see go into any Constitution which we shall
adopt; for if this doctrine is correct, you cannot make a man amenable to any criminal
law." (Emphasis added.) Convention, at 272.

22
Another proslavery delegate, Benjamin Wrigley, professed similar concern:

"I believe that this section, as it now reads, as remarked by the gentleman from
Leavenworth (Mr. McDowell) does embrace the 'higher law' doctrine, and is mischievous
in its character. I believe it was intended to set at defiance, and that it does in fact set at
defiance, the fugitive slave law as a law of the land." Convention, at 274.

As Wrigley's comment illustrated, the subtext of the discussion was primarily
motivated by proslavery delegates' concern that characterizing natural rights as
"inalienable" could preclude enforcement of criminal law, particularly the fugitive slave
law, within Kansas. Therefore, one of the first proposed amendments to section 1—
offered by Wrigley—included the following clause to address concerns that section 1's
text created a hierarchy of law with "absolute" natural rights at the apex.

"'Provided that nothing herein contained shall be construed to apply to any
person lawfully held to or owing service under the Constitution of the United States or
the Constitution and Laws of any other State, or to any person under indictment, or
lawfully under arrest or in custody, or lawfully imprisoned.'" Convention, at 273.

Without this clarifying language, Wrigley claimed section 1 would ensure that "no person
can forfeit his right to liberty under any circumstances." Convention, at 274.

"It matters not how great a criminal a man may be, or how lawfully he may have been
arrested, retained in custody, or arraigned under indictment for a grave offense, you
propose to have here an organic declaration, that this criminal's right to control of his
person is above all law, prior to all law, and inalienable. Now, sir, I contend, that the right
to the control of a man's person is not above the law, prior to law and inalienable. He may
forfeit that right by the commission of crime—and all must agree, that, under such
circumstances, he may be lawfully held in custody, and the control of his person
rightfully and legally taken away from him. Adopt this declaration here, and at once you
abolish the criminal law, and open all your jails." (Emphasis added.) Convention, at 274.

23
 McDowell added to the objection, believing the original proposal could lead to an
absurd result—impairing the State's authority to punish crimes:

"[I]f adopted as it now stands, [the original proposal] will simply place us in the attitude
of the commission of this solecism; recognizing somewhere the right and power to punish
crime, yet in the Bill of Rights doing away with every provision of that kind, by asserting
that the control of the person is above, beyond, [and] anterior to all law. . . . Whatever
their notions may be on these questions in relation to the fugitive slave law, let us be
careful, at least, to avoid placing ourselves in an absurd position." Convention, at 276.

Another delegate also offered support for language to avoid this result. See Convention,
at 275.

Consistent with these remarks, Dr. James Blunt offered the following substitute
amendment to modify the natural rights preserved within section 1: "'Except in cases
where the party is charged with crime, or has been convicted thereof.'" Convention, at
276. According to Blunt, the substitute amendment would "remove all doubtful and
dangerous construction that might be put upon the section," though he acknowledged this
would not appease those seeking to protect the fugitive slave law. Convention, at 276-77.

After Blunt's speech, other delegates weighed in on the issue. Delegate William
Griffith explained the term "inalienable" means only that the right cannot be transferred
or assigned, and that the language did not create a hierarchy of law that prevented
punishment for criminal conduct. Griffith explained:

"It seems to me, sir, that this discussion and both amendments are unnecessary, and that
they result from a misconception of the clause in question. I see nothing of any higher-
law doctrine in this section. If it is there, I confess that I have not penetration enough to
discover it. The proposition is, 'that the right of all men to the control of their persons

24
 exists prior to law, and is inalienable.' It does not propose that the authority of the State
shall not hold the persons of men if they have committed crime, but simply that this right
exists prior to law, and is inalienable by the person holding it—that is, he cannot sell it or
dispossess himself of it. But, sir, the law of the land regulates this matter entirely."
(Emphasis added.) Convention, at 279-80.

The discussion continued with delegates expressing opposing views as to the
nature and scope of natural rights as set forth in proposed section 1. Convention, at 280-
82. Eventually, Wrigley's proposed amendment was put to a vote and approved. But
immediately thereafter, President James Winchell offered the following substitute:

"'All men are by nature free and equal and possessed of certain rights inalienable by law,
except for the commission of crime, among which rights are life, liberty, the pursuit of
happiness and the acquirement, possession and protection of property.'" Convention, at
282.

Winchell offered the substitute provision as a compromise, believing "there is some
foundation for the arguments . . . if we declare in the fundamental law, that men have
certain rights that are inalienable, we must mean that those rights are inalienable by law."
Convention, at 282.

At this juncture, Samuel Austin Kingman, a delegate who later served as one of
the original members of the Kansas Supreme Court following statehood in 1861 and
Chief Justice from 1867 to 1876, offered the version of section 1 ultimately adopted by
the convention and ratified by electors. See Convention, at 282-85; see also Samuel
Austin Kingman, Kansapedia: Kansas Historical Society,
https://www.kshs.org/kansapedia/samuel-austin-kingman/17072 (professional biography
of Kingman). In advancing what would become the final version of section 1, Kingman
made clear the term "inalienable" has an established legal meaning—referring to a right
or interest that cannot be disposed of by sale or assignment to another but which can be

25
forfeited. In this regard, Kingman explained that inalienable natural rights would not
impair the State's ability to punish individuals for criminal conduct:

"Mr. President, I do not propose to argue this question. I would be willing to vote
for the section as it stands, but I prefer the language of the substitute just offered. But I
hold in my hand a section which I prefer to both of them. I do not propose at this time to
offer it. But I hold that this use of the word 'inalienable,' is misunderstood and
misinterpreted in this House. A man's right to his life is inalienable in law under all
circumstances. He has no right to sell or give it away—no right to dispose of it at all. But
the word 'inalienable' has a fixed meaning in law. And when in the common use of the
word we say, that a man cannot alienate his property, none would suppose we mean to
say, he cannot forfeit his property. We propose, at the proper time, to propose in this
Constitution, that there shall be a homestead set apart to each settler in the State, which
shall be inalienable, but we do not propose to ordain that it shall not be forfeited for debts
due to the State, and so on. I do not like to see this doctrine impinged. I do not like to
depart from old, established usage. Therefore I hope the section which I hold in my hand
will be adopted. By the leave of the Convention I will read it:

'All men are possessed of equal and inalienable natural rights, among which are
those of life, liberty and the pursuit of happiness.'

"These terms, Mr. President, are fixed in the minds of the American people—
they have become traditional. And I offer to strike out and insert this, that the American
feeling might appear in this section. We all cling to old truths, and I love the very forms
of expression in which old truths have been presented. I dislike to change any old truth
from the forms of language to which I have been accustomed. I dislike to see them taken
from the habiliments in which I have so often seen them clothed and put into new and
doubtful phraseology; and our national Declaration of Independence is of this class of
truth. That Declaration of Rights forms a part of our political creed, from which no man
can extricate himself; and I do not wish to change the clothing of these ideas. It is this
feeling that makes a man who has long read one book—as the Bible or Blackstone—
value it a hundred fold above its intrinsic value. This makes a man like to read the
sentiments he cherishes in their original style of expression—makes him like to dwell on

26
 the very words that cover the principles he holds closest to his heart. And we should
express these sentiments in few words—sufficient to cover their views and carry their
original force, and whatever goes beyond that is injurious to the sense. I say again, sir, I
love these old forms. They are, it seems to me, as the political Bible of every citizen of
the United States. If you change their language, you mar their beauties—carry the mind
away from the sense, and send it off into reflections on the phraseology and meaning of
these new terms. I think the amendment I have read, in these old terms, is broad enough.
It will show no man's prejudices, and it is broad enough for all to stand upon." (Emphases
added.) Convention, at 282-83.

Kingman's explanation proved to be persuasive, and the convention passed his substitute
proposal by a margin of 42 to 6. Convention, at 285.

This historical record indicates the drafters of section 1 never intended the term
"inalienable" to be construed as "absolute" or "nonforfeitable." Instead, a careful reading
of section 1, coupled with the transcripts of the convention debate, establishes that the
term "inalienable" refers only to one's ability to transfer his or her right or interest to
another person. This construction is consistent with the legal meaning ascribed to the
term "inalienable." See Black's Law Dictionary 683 (5th ed. 1978) (defining "inalienable"
as "[n]ot subject to alienation; the characteristic of those things which cannot be bought
or sold or transferred from one person to another, such as rivers and public highways, and
certain personal rights; e.g., liberty"). Though inalienable, the framers viewed these
natural rights as forfeitable in civil society. So construed, the framers were confident
section 1 could not be used as a device to impede or limit the state's authority to punish
individuals for their criminal conduct.

2. Natural Rights Theory According to Locke and Blackstone

During the Wyandotte Convention debates, the chairman of the Preamble and Bill
of Rights Committee, William Hutchinson, explained that section 1 is designed to declare

27
and protect the "natural rights" of all persons. See Convention, at 281-82. Based on the
established historical record, we have held the framers intended section 1 to incorporate
the "broad concept of natural rights." Hodes, 309 Kan. at 629 ("In short, the drafters . . .
incorporated the broad concept of natural rights" in adopting section 1.).

a. John Locke

The theory of "natural rights" traces its lineage from the writings of John Locke
through the Declaration of Independence, written by Thomas Jefferson, and the Virginia
Declaration of Rights of 1776, written by George Mason. 309 Kan. at 639. Thus,
"Locke's views on natural rights are significant" and offer insight into the framers' intent
in adopting section 1. 309 Kan. at 639.

Locke's theory describes the inherent rights of persons in nature before consenting
to civil governance. According to Locke, in nature all persons are in "a State of perfect
Freedom to order their Actions, and dispose of their Possessions, and Persons as they
think fit, within the bounds of the Law of Nature, without asking leave, or depending
upon the Will of any other Man." Locke, Two Treatises of Government, Bk. II, § 4
(1698). And consistent with such uninhibited personal freedom, the state of nature is also
a state of "Equality, wherein all the Power and Jurisdiction is reciprocal, no one having
more than another." Locke, Bk II, § 4.

In this perfect state of nature, these inherent rights are to be exercised according to
each person's free will and should not be impaired, unless the exercise of these rights
would place another's natural rights in peril:

"The State of Nature, has a Law of Nature to govern it which obliges every one, and
Reason, which is that Law, teaches all Mankind, who will but consult it; That being
all equal and independent, no one ought to harm another in his Life, Health, Liberty,

28
 or Possessions; . . . [E]very one as he is bound to preserve himself, and not to quit
his Station wilfully, so by the like reason when his own Preservation comes not in
competition, ought he as much as he can to preserve the rest of Mankind, and not
unless it be to do Justice on an Offender, take away, or impair the life, or what tends
to the Preservation of the Life, the Liberty, Health, Limb or Goods of another." Locke,
Bk. II, § 6.

"Locke's contention that man is endowed with free will means, however, that the
law of nature, though known by reason, is not necessarily universally obeyed." Suess,
Punishment in the State of Nature: John Locke and Criminal Punishment in the United
States of America, 7 Wash. U. Jur. Rev. 367, 377 (2015). Given this reality, "to uphold
natural law . . . the rational man has the right to punish criminals. For if no one had such a
right the law of nature would be in vain." 7 Wash. U. Jur. Rev. at 377.

Locke's justification for punishment in nature was that the offender, by infringing
the natural rights of another, had "declare[d] himself to live by another Rule, than that of
reason and common Equity." Locke, Bk. II, § 8. Such transgressions are "a trespass
against the whole Species." Locke, Bk. II, § 8. Thus, all persons "may restrain, or where
it is necessary, destroy things noxious to them, and so may bring such evil on any one,
who hath transgressed that Law, as may make him repent the doing of it, and thereby
deter him, and by his Example others, from doing the like mischief." Locke, Bk. II, § 8.

Without question Locke viewed the act of murder as a transgression of natural
law, warranting punishment up to and including capital punishment.

"The damnified Person has this Power of appropriating to himself, the Goods or Service
of the Offender, by Right of Self-preservation, as every Man has a Power to punish the
Crime, to prevent its being committed again, by the Right he has of Preserving all
Mankind, and doing all reasonable things he can in order to that end: And thus it is, that
every Man in the State of Nature, has a Power to kill a Murderer, both to deter others

29
 from doing the like Injury, which no Reparation can compensate, by the Example of the
punishment that attends it from every body, and also to secure Men from the attempts of
a Criminal, who having renounced Reason, the common Rule and Measure God hath
given to Mankind, hath by the unjust Violence and Slaughter he hath committed upon
one, declared War against all Mankind, and therefore may be destroyed as a Lion or a
Tyger, one of those wild Savage Beasts, with whom Men can have no Society nor
Security." Locke, Bk. II, § 11.

According to Locke, individuals who commit capital offenses forfeit their own
natural rights, including the right to life, through their offensive conduct.

"Indeed having, by his fault, forfeited his own Life, by some Act that deserves Death; he,
to whom he has forfeited it, may (when he has him in his Power) delay to take it, and
make use of him to his own Service, and he does him no injury by it. For, whenever he
finds the hardship of his Slavery out-weigh the value of his Life, 'tis in his Power, by
resisting the Will of his Master, to draw on himself the Death he desires." (Emphasis
added.) Locke, Bk. II, § 23.

This concept of "forfeiture" enables Locke to philosophically justify notions of
punishment that result in the deprivation of the perpetrator's own rights as they would
have existed in nature.

Interestingly, for Locke, the right to life gave rise to a reciprocal duty for a person
to preserve his or her own life. Notwithstanding the vast freedom enjoyed by individuals
in nature, Locke did not believe such freedom granted individuals the power to end one's
own life. Locke, Bk. II, § 23. As a corollary, a person could not alienate that right to
another person because a person did not "hav[e] the Power of his own Life" in the first
place. Locke, Bk. II, § 23. Thus, a person "cannot, by Compact, or his own Consent,
enslave himself to any one, nor put himself under the Absolute, Arbitrary Power of
another, to take away his Life, when he pleases." Locke, Bk. II, § 23. "No body can give

30
more Power than he has himself; and he that cannot take away his own Life, cannot give
another power over it." Locke, Bk. II, § 23.

Consistent with delegate Kingman's commentary regarding the intended scope of
section 1, Locke's natural rights theory recognizes the right to life to be inalienable,
meaning it cannot be sold, transferred, or assigned to another. But the right is not
absolute, as it may be forfeited through acts of criminal conduct that give rise to the
power of punishment.

Even so, Locke's philosophical justification for punishment based on notions of
forfeiture leads to an obvious question: who should impose punishment? Locke observed
"it is unreasonable for Men to be Judges in their own Cases, that Self-love will make Men
partial to themselves and their Friends. And on the other side, that Ill Nature, Passion and
Revenge will carry them to far in punishing others." Locke, Bk. II, § 13. Therefore,
Locke concluded that "Civil Government is the proper Remedy for the Inconveniences of
the State of Nature." Locke, Bk. II, § 13.

According to Locke, individuals do not relinquish their natural rights of life,
liberty, and property merely by entering civil society. Locke, Bk. II, § 87. Instead, they
consent to the same power of punishment that existed in nature. But instead of being
meted out by the victim, punishment (including the death penalty) as it exists in the state
of nature is transferred to, and imposed by, the civil society itself. Locke, Bk. II, § 87.

"Man being born, as has been proved, with a Title to perfect Freedom, and an
uncontrouled enjoyment of all the Rights and Privileges of the Law of Nature, equally
with any other Man, or Number of Men in the World, hath by Nature a Power, not only to
preserve his Property, that is, his Life, Liberty and Estate, against the Injuries and
Attempts of other Men; but to judge of, and punish the breaches of that Law in others, as
he is persuaded the Offence deserves, even with Death it self, in Crimes where the
heinousness of the Fact, in his Opinion, requires it. But because no Political Society can

31
 be, nor subsist without having in it self the Power to preserve the Property, and in order
thereunto punish the Offences of all those of that Society: There, and there only is
Political Society, where every one of the Members hath quitted this natural Power,
resign'd it up into the hands of the Community in all cases that exclude him not from
appealing for Protection to the Law established by it. And thus all private judgement of
every particular Member being excluded, the Community comes to be Umpire, by settled
standing Rules; indifferent, and the same to all Parties: And by Men having Authority
from the Community for the execution of those Rules, decides all the differences that
may happen between any Members of that Society, concerning any matter of right, and
punishes those Offences, which any Member hath committed against the Society with
such Penalties as the Law has established; whereby it is easie to discern who are, and
who are not, in Political Society together." (Emphasis added.) Locke, Bk. II, § 87.

b. William Blackstone

Though philosophically consistent with Locke, William Blackstone provided a
more complete description of the contours of natural rights, particularly the right to life,
in his Commentaries on the Laws of England. See Bedau, The Right to Life, 52(4) The
Monist 550, 553 (1968) ("If we were to look for the one thinker from the past whose
writings, in virtue of their antiquity, detail, and influence, have no peer as a source of the
classic doctrine of the right to life, we would have to choose, not Hobbes, Locke,
Rousseau, or Paine, but Sir William Blackstone.").

The United States Supreme Court has recognized Blackstone's influence on the
framers of the United States Constitution:

"Blackstone's Commentaries are accepted as the most satisfactory exposition of
the common law of England. At the time of the adoption of the Federal Constitution, it
had been published about twenty years, and it has been said that more copies of the work
had been sold in this country than in England; so that undoubtedly, the framers of the

32
 Constitution were familiar with it." Schick v. United States, 195 U.S. 65, 69, 24 S. Ct.
826, 49 L. Ed. 99 (1904).

Likewise, members of the early state constitutional conventions were so immersed in the
common law as expounded by Blackstone that the language of these constitutions cannot
be well understood without reference to his teachings. See Bader, Some Thoughts on
Blackstone, Precedent, and Originalism, 19 Vt. L. Rev. 5, 7-8 (1994).

Blackstone divided individual rights into two categories: absolute and relative.
1 Blackstone, Commentaries on the Laws of England at 119 (1765). It is important to
recognize Blackstone did not define "absolute" rights in a way that established a higher
order of law (where "absolute" rights would be free from any limitation or infringement,
thereby limiting the authority of the government to exercise the power of criminal
punishment). Instead, his definition of "absolute" rights was consistent with Locke's
characterization of natural rights—those that "appertain and belong to particular men,
merely as individuals or single persons," whereas relative rights "are incident to them as
members of society, and standing in various relations to each other." 1 Blackstone, at
119. "For the most part, the purpose of 'relative' rights (including the right of access to the
courts, the right to petition for the redress of grievances and the right to bear arms) was to
preserve or implement 'absolute' rights in organized communities." Alschuler,
Rediscovering Blackstone, 145 U. Pa. L. Rev. 1, 28 (1996).

In other words, under Blackstone's terminology, absolute rights are those naturally
endowed to persons by the creator:

"The absolute rights of man, considered as a free agent, endowed with
discernment to know good from evil, and with power of choosing those measures which
appear to him to be most desirable, are usually summed up in one general appellation,
and denominated the natural liberty of mankind. This natural liberty consists properly in a
power of acting as one thinks fit, without any restraint or control, unless by the law of

33
 nature; being a right inherent in us by birth, and one of the gifts of God to man at his
creation, when he endued him with the faculty of freewill." 1 Blackstone, at 121.

For Blackstone, political or civil liberty—"which is that of a member of society"—
"is no other than natural liberty so far restrained by human laws (and no farther) as is
necessary and expedient for the general advantage of the public." 1 Blackstone, at 121.
Moreover, the purpose of society, and thus government, "is to protect individuals in the
enjoyment of those absolute rights, which were vested in them by the immutable laws of
nature; but which could not be preserved in peace without that mutual assistance and
intercourse which is gained by the institution of friendly and social communities."
1 Blackstone, at 120.

Blackstone "reduced" these natural rights "to three principal or primary articles;
the right of personal security, the right of personal liberty, and the right of private
property." 1 Blackstone, at 125. He included the right to life under the umbrella of the
right of personal security: "The right of personal security consists in a person's legal and
uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation."
1 Blackstone, at 125.

Indeed, foremost in Blackstone's right of personal security was the right to life.
1 Blackstone, at 125. A person's life and limbs were "of such high value," "that it pardons
even homicide if committed se defendendo, or in order to preserve them." 1 Blackstone,
at 126. Whatever a person might do to save life or limb, "is looked upon as done upon the
highest necessity and compulsion." 1 Blackstone, at 126.

Like Locke, and consistent with delegate Kingman's interpretation of section 1,
Blackstone recognized the right to life is not alienable, meaning it cannot be assigned or
transferred to another, but it can be forfeited when a person's criminal conduct
necessitates punishment, up to and including capital punishment, in civil society.

34
 "This natural life, being, as was before observed, the immediate donation of the
great creator, cannot legally be disposed of or destroyed by any individual, neither by the
person himself nor by any other of his fellow-creatures, merely upon their own authority.
Yet nevertheless it may, by the divine permission, be frequently forfeited for the breach
of those laws of society, which are enforced by the sanction of capital punishments; of
the nature, restrictions, expedience, and legality of which, we may hereafter more
conveniently enquire in the concluding book of these commentaries. At present, I shall
only observe, that whenever the constitution of a state vests in any man, or body of men,
a power of destroying at pleasure, without the direction of laws, the lives or members of
the subject, such constitution is in the highest degree tyrannical: and that, whenever any
laws direct such destruction for light and trivial causes, such laws are likewise tyrannical,
though in an inferior degree; because here the subject is aware of the danger he is
exposed to, and may by prudent caution provide against it. The statute law of England
does therefore very seldom, and the common law does never, inflict any punishment
extending to life or limb, unless upon the highest necessity; and the constitution is an
utter stranger to any arbitrary power of killing or maiming the subject without the express
warrant of law." (Emphasis added.) 1 Blackstone, at 129.

Commentators interpreting Blackstone and, by extension, Locke have confirmed
this interpretation of inalienable natural rights, i.e., recognizing that inalienable natural
rights may still be forfeited through criminal conduct warranting punishment:

"(a) If punishments of death are necessary for social defense, then the plea of absolute
individual rights will not bar the justifiable imposition of death penalties. But the death
penalty may be justifiably imposed only if the criminal's (right to) life is forfeit for his
crime (sc. one is excused for killing in self-defense because the aggressor forfeits his
right to life). (b) Whenever a person commits a crime, he violates the rights of another.
This in turn entails forfeiture by the criminal of those rights which he violated in his
victim. '[T]he offender, by violating the life or liberty or property of another, has lost his
own right to have his life, liberty, or property respected . . .' The result of (a) and (b) is a
justification of the forfeiture of the absolute right to life." 52(4) The Monist at 568.

35
While Bedau critiques this conclusion, it is, nonetheless, the conclusion that both
Blackstone and Locke reached in formulating their concept of natural rights.

In his discussion of crimes and punishments in Book IV, Blackstone reasons that
in the state of nature, the power or right of punishment is vested in every individual. See
4 Blackstone, at 7.

"It is clear, that the right of punishing crimes against the law of nature, as murder and the
like, is, in a state of mere nature vested in every individual. For it must be vested in
somebody; otherwise the laws of nature would be vain and fruitless, if none were
empowered to put them in execution: and if that power is vested in any one, it must also
be vested in all mankind, since all are by nature equal." 4 Blackstone, at 7.

Blackstone, like Locke, concludes that upon entering civil society, "this right is
transferred from individuals to the sovereign power." 4 Blackstone, at 8.

Blackstone also recognized a distinction between crimes that are mala in se—
wrong or evil in itself—and those that are mala prohibita—"offences of human
institution." 4 Blackstone, at 9. For Blackstone, it was apparent that civil society could
impose capital punishment for crimes that are mala in se.

"With regard to offences mala in se, capital punishments are in some instances inflicted
by the immediate command of God himself to all mankind; as, in the case of murder, by
the precept delivered to Noah, their common ancestor and representative, 'whoso
sheddeth man's blood, by man shall his blood be shed.'" 4 Blackstone, at 9.

36
 But for crimes mala prohibita, capital punishment is only justified

"'when offences grow enormous, frequent, and dangerous to a kingdom or state,
destructive or highly pernicious to civil societies, and to the great insecurity and danger
of the kingdom or its inhabitants, severe punishment and even death itself is necessary to
be annexed to laws in many cases by the prudence of lawgivers.'" 4 Blackstone, at 9.

It was not only the frequency or difficulty in preventing a particular mala prohibita crime
that might warrant a penalty of capital punishment, but also its "enormity, or dangerous
tendency" that "alone" might warrant putting the offender to death. 4 Blackstone, at 9.

In sum, both Locke and Blackstone characterized inalienable natural rights,
including the right to life, as forfeitable when criminal conduct warrants punishment, up
to and including death, in civil society. See Locke, Bk. II, § 23; 1 Blackstone, at 129.
This conclusion is consistent with the record of the Wyandotte Convention debates,
where the framers made clear that the natural rights in section 1 are forfeitable in civil
society and cannot impair the state's ability to punish individuals for their criminal
conduct. And both (the teachings of Locke/Blackstone and the record of the Wyandotte
Convention debates) are consistent with the legal definition of the term "inalienable" as
used in section 1.

C. Kansas' Capital Sentencing Scheme Does Not Infringe Upon the Inalienable
Right to Life in Section 1

As noted above, R. Carr claims that section 1 affords him an absolute,
nonforfeitable right to life that precludes capital punishment. However, as discussed more
fully below, our construction of section 1 forecloses this argument. The text and relevant
historical record demonstrate the framers intended section 1's inalienable right to life to
be subject to forfeiture through criminal conduct. Accordingly, R. Carr's and J. Carr's
asserted right to or declared interest in an absolute, nonforfeitable right to life does not

37
fall within the purview of rights protected by section 1. Instead, when a person is
convicted of capital murder beyond reasonable doubt, he or she forfeits the inalienable
right to life under section 1 and the state may impose lawful punishment for that crime.

We adopted a similar rationale in Kleypas I, albeit under a substantially different
legal framework that predated this court's decision in Hodes. See State v. Kleypas, 272
Kan. 894, 136, 40 P.3d 139 (2001) (Kleypas I), cert. denied 537 U.S. 834 (2002),
overruled on other grounds by Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L.
Ed. 2d 429 (2006). There, Kleypas attempted to distinguish section 1 from the Fourteenth
Amendment by highlighting the fact that the text of section 1 does not contain any
limiting language or exception authorizing governmental infringement of natural rights
upon satisfaction of due process requirements. Kleypas I, 272 Kan. at 1051.

"Kleypas argues that, unlike the federal version which does not allow the taking
of life without due process of law, the above language in our state constitution simply
does not contemplate the taking of a life by the State under any circumstances. He
contends that the Kansas Constitution confers upon him an absolute right to life." 272
Kan. at 1051.

The court rejected Kleypas' argument without much discussion. It quoted from the
same constitutional convention debates discussed above in concluding that the right to
life under section 1 does not limit the state's power to impose punishments for crimes.
272 Kan. at 1051-52. The court characterized the argument as "somewhat novel" but
listed a variety of cases from other state courts that had "soundly rejected" similar
challenges. 272 Kan. at 1052 (citing Ruiz v. Arkansas, 299 Ark. 144, 152-53, 772 S.W.2d
297 [1989]; Missouri v. Newlon, 627 S.W.2d 606, 612-13 [Mo. 1982]; Slaughter v.
Oklahoma, 950 P.2d 839, 861-62 [Okla. Crim. App. 1997]). Ultimately, the court decided
Kleypas' argument stretched "the meaning of the venerable words in § 1 of the state Bill

38
of Rights far beyond their intended purpose. This we decline to do." Kleypas I, 272 Kan.
at 1052.

It is no surprise the Kleypas I court focused on the framers' discussion of
"inalienability" in rejecting the section 1 challenge. The delegates' remarks reflect the
framers' intent to construe the term "inalienable" within section 1 consistent with its legal
meaning—a right or interest that cannot be transferred or assigned to another person.
Though inalienable, i.e., nontransferable, an individual may forfeit his or her natural
rights by engaging in criminal conduct that is subject to punishment in civil society.
Therefore, delegate Kingman believed his proposed language for section 1 (which was
ultimately adopted by the convention) would establish the existence of natural rights that
were forfeitable, thereby authorizing the state to impose punishment for criminal conduct
without offense to section 1.

Locke and Blackstone, whose teachings greatly influenced the development of
both federal and state constitutions alike, recognized a similar construction of
"inalienable" natural rights, i.e., that they were subject to forfeiture. Natural rights
theorists generally posited a state of nature that included within it a set of rights that
every individual possessed in that state of nature. But when humans enter civil society,
they relinquish certain powers and rights to the sovereign or government. As discussed
above, the right to impose punishment, up to and including capital punishment, was one
of the rights transferred from the individual to the sovereign. Thus, according to Locke,
Blackstone, and the drafters of the Kansas Constitution, an individual who commits a
crime warranting punishment in civil society forfeits his or her natural rights, thereby
enabling the state to impose just punishment.

After careful examination of the text of section 1, the historical record, and the
documents and writings that inspired the drafters of the Kansas Constitution, we conclude

39
that section 1 recognizes an inalienable right to life, but that right is not absolute or
nonforfeitable. We hold that once a defendant has been convicted of capital murder
beyond a reasonable doubt, the defendant forfeits his or her natural rights under section 1
("among which are life, liberty, and the pursuit of happiness") and the state may impose
punishment for that crime pursuant to Kansas' capital sentencing scheme.

In so holding, we do not mean to suggest the state's power to punish is unabated
upon a defendant's forfeiture of natural rights under section 1. To the contrary, a
defendant is entitled to due process of law throughout the penalty phase proceedings. See,
e.g., Kan. Const. Bill of Rights, § 10. Additionally, the punishment imposed may not be
"cruel or unusual." See, e.g., Kan. Const. Bill of Rights, § 9. But these protections do not
arise under section 1. In fact, where a defendant has been lawfully convicted of capital
murder, the imposition of the capital sentence no longer implicates his or her inalienable
natural rights under section 1. However, other constitutional guarantees, including but not
limited to those contained in sections 9 and 10, continue to regulate the state's authority
to punish and guard against arbitrary applications of such authority. Cf. Chapman v.
United States, 500 U.S. 453, 465, 111 S. Ct. 1919, 114 L. Ed. 2d 524 (1991)
(fundamental right to liberty limits government power to punish prior to jury's verdict of
guilt; thereafter a person "is eligible for, and the court may impose, whatever punishment
is authorized by statute for his offense, so long as that penalty is not cruel and unusual").

For these reasons, R. Carr's and J. Carr's asserted right to, or declared interest in,
an absolute, nonforfeitable right to life is not included within or part of the guarantees
or protections of section 1. Instead, the natural right to life is forfeitable, and the
government's imposition of the death penalty pursuant to Kansas' capital sentencing
scheme does not impair the "inalienable" right to life protected under section 1.
Accordingly, the jury's capital sentencing verdicts in R. Carr's and J. Carr's cases do not
implicate section 1 of the Kansas Constitution Bill of Rights.

40
II. Death Qualification of Jurors Under K.S.A. 22-3410 Does Not Violate Section 5
of the Kansas Constitution Bill of Rights

In an amicus brief filed in J. Carr's case, the NAACP Legal Defense and
Educational Fund, Inc. (LDF) raises a state constitutional challenge to the practice of
"death qualifying" juries in Kansas—the process of removing prospective jurors for
cause, pursuant to K.S.A. 22-3410, when their conscientious objection to capital
punishment substantially impairs their ability to fulfill the oath and obligations of a juror.
Though not raised by R. Carr, the LDF and the State briefed the issue to the court, and we
advised J. Carr and the State to be prepared to address the issue at oral argument.

After oral argument concluded, R. Carr filed a motion requesting the court
consider this section 5 challenge in his appeal. We deny R. Carr's motion because it is an
improper procedural vehicle for advancing this new, state constitutional challenge. See
State v. Cheever, 306 Kan. 760, 774, 402 P.3d 1126 (2017) (Cheever II) (denying similar
motion on instruction issue); State v. Gleason, 305 Kan. 794, 798, 388 P.3d 101 (2017)
(Gleason II) (same). Nevertheless, we address the merits of the claim given our statutory
obligation in capital appeals to both consider "the question of sentence" and "notice
unassigned errors appearing of record if the ends of justice would be served thereby."
K.S.A. 2020 Supp. 21-6619(b); Cheever II, 306 Kan. at 774 (electing to reach merits of
similar issue "[u]nder the unique circumstances of [the] case and in the interest of judicial
economy"); Gleason II, 305 Kan. at 798-99 (same).

Kansas statute authorizes a district judge to remove prospective jurors for cause
where their "state of mind with reference to the case or any of the parties is such that the
court determines there is doubt that [the prospective juror] can act impartially and
without prejudice to the substantial rights of any party." K.S.A. 22-3410(2)(i). Under this
provision, parties in a capital case may successfully challenge prospective jurors for

41
cause if their views on the death penalty prevent or substantially impair the performance
of their duties as jurors. See R. Carr, 300 Kan. at 113-14. The statute is designed to
balance a defendant's due process and jury trial rights with the State's strong interest in
seating jurors who can apply the sentence of capital punishment according to the
framework provided by law. 300 Kan. at 113. Nevertheless, the LDF contends the State's
removal of prospective jurors under this statute violates the right to trial by jury preserved
in section 5 of the Kansas Constitution Bill of Rights.

A. Standard of Review and Legal Framework

As previously noted, constitutional challenges raise questions of law over which
appellate courts have unlimited review. State v. Coleman, 312 Kan. 114, 117, 472 P.3d
85 (2020). To the extent resolution of this issue requires us to interpret the language of
section 5, our review is likewise unlimited. 312 Kan. at 117.

Section 5 of the Kansas Constitution Bill of Rights provides that "[t]he right of
trial by jury shall be inviolate." This court has consistently held that section 5 "'"preserves
the jury trial right as it historically existed at common law when our state's constitution
came into existence"'" in 1859. Albano, 313 Kan. at 641. A section 5 analysis generally
involves two inquiries: (1) "In what types of cases is a party entitled to a jury as a matter
of right?" and (2) "[W]hen such a right exists, what does the right protect?" State v. Love,
305 Kan. 716, 735, 387 P.3d 820 (2017). "Prosecutions for violations of state criminal
statutes unquestionably implicate Section 5." 305 Kan. at 736. Therefore, our analysis
focuses on the scope of that right—that is, does section 5 foreclose death qualification of
jurors under K.S.A. 22-3410?

42
 B. The Plain Meaning of the Term "Jury" and the Historical Record Demonstrate
that "Death-Qualification" Under K.S.A. 22-3410 Is Beyond the Scope of
Section 5

To determine the scope of the jury trial right under the Kansas Constitution, it is
first instructive to explore the meaning of the term "jury" as used in section 5. In doing
so, we rely on established rules of constitutional construction:

"In ascertaining the meaning of a constitutional provision, the primary duty of the
courts is to look to the intention of the makers . . . and the adopters . . . of that provision.
A constitutional provision is not to be narrowly or technically construed, but its language
should be interpreted to mean what the words imply to persons of common
understanding. Words in common usage are to be given their natural and ordinary
meaning in arriving at a proper construction. [Citations omitted.]" Board of Leavenworth
County Com'rs v. McGraw Fertilizer Serv., Inc., 261 Kan. 901, 905, 933 P.2d 698 (1997).

When the words themselves do not make the drafters' intent clear, courts look to the
historical record, remembering "'the polestar . . . is the intention of the makers and
adopters.'" Hunt, 150 Kan. at 5; see State ex rel. Stephan v. Finney, 254 Kan. 632, 655,
867 P.2d 1034 (1994). Here, both the plain meaning of the term "jury" and the historical
record each undermine this section 5 challenge.

To ascertain the meaning of the term "jury" under section 5, we first look to the
common, ordinary meaning of this term. Dictionary definitions provide a reliable source
for that meaning. Midwest Crane & Rigging, LLC v. Kansas Corporation Comm'n, 306
Kan. 845, 851, 397 P.3d 1205 (2017). Black's Law Dictionary defines a "jury" as "[a]
group of persons selected according to law and given the power to decide questions of
fact and return a verdict in the case submitted to them." Black's Law Dictionary 1024
(11th ed. 2019). Similarly, the American Heritage Dictionary of the English Language
defines "jury" as "[a] body of persons selected to decide a verdict in a legal case, based

43
upon the evidence presented, after being given instructions on the applicable law." The
American Heritage Dictionary of the English Language 953 (5th ed. 2011); see also
Webster's New World College Dictionary 790 (5th ed. 2014) (defining "jury" as "a group
of people sworn to hear the evidence and inquire into the facts in a law case, and to give a
decision in accordance with their findings").

Thus, we construe the term "jury," as used in section 5, to denote a legally selected
group of persons sworn to determine issues of fact and return a verdict based on the
evidence and the law as instructed. This construction is also in accord with our precedent
defining the traditional function and duty of a Kansas jury. See State v. McClanahan, 212
Kan. 208, 217, 510 P.2d 153 (1973) ("[I]t is the proper function and duty of a jury to
accept the rules of law given to it in the instructions by the court, apply those rules of law
in determining what facts are proven and render a verdict based thereon."); see also State
v. Boeschling, 311 Kan. 124, 130, 458 P.3d 234 (2020) (recognizing same traditional
functions and duties of jury).

Under this plain meaning interpretation, section 5's right to trial by jury does not
prohibit the state from death qualifying juries. Importantly, K.S.A. 22-3410 does not
permit the removal of any or all prospective jurors who have conscientious objections to
the death penalty. The death qualification process is constrained by the Eighth
Amendment to the United States Constitution, which prohibits the state from excluding
jurors in capital trials "simply because they voiced general objections to the death penalty
or expressed conscientious or religious scruples against its infliction." Witherspoon v.
Illinois, 391 U.S. 510, 522, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). Instead, the State
may only remove those prospective jurors whose opposition to the death penalty "would
'prevent or substantially impair the performance of [their] duties as [jurors] in accordance
with [their] instructions and [their] oath[s].'" Wainwright v. Witt, 469 U.S. 412, 424, 105
S. Ct. 844, 83 L. Ed. 2d 841 (1985).

44
 In other words, death qualification eliminates only those prospective jurors who
cannot decide issues of fact and reach a decision based on the evidence presented and the
law as instructed—i.e., those persons who are unable to fulfill the traditional functions
and duties of a Kansas jury. And, as established above, the plain meaning of the term
"jury," as used in section 5, excludes these types of prospective jurors from its definition.
In this regard, the process of death qualification under K.S.A. 22-3410 facilitates the very
trial by "jury" that section 5 guarantees.

C. Death Qualification Does Not Implicate Section 5 Because the Common Law
Did Not Prohibit the Practice When the Kansas Constitution Was Adopted in
1859

Furthermore, the LDF concedes that when our state Constitution was adopted, the
common law permitted a trial judge to remove individuals whose conscientious scruples
against the death penalty would substantially impair their ability to perform the oath and
duties of a juror. However, the LDF asserts this common-law rule arose from
circumstances peculiar to the structure of capital trials at the time.

Historically, neither the jury nor the trial judge possessed sentencing discretion in
capital trials—once convicted, a judge sentenced the defendant to death as a matter of
law. See Novak, The Role of Legal Advocates in Transnational Judicial Dialogue: The
Abolition of the Mandatory Death Penalty and the Evolution of International Law, 25
Cardozo J. Int'l & Comp. L. 179, 210 (2017) ("At common law, the mandatory death
penalty shifted sentencing discretion from a trial judge to a clemency authority."). Thus, a
death-scrupled juror could only circumvent the death penalty by acquitting a defendant,
regardless of what the evidence established or the law required. The LDF speculates that
death-scrupled jurors were thus disqualified at common law for a very narrow reason—
the need to ensure the fair adjudication of the defendant's guilt. The LDF contends this

45
rationale no longer applies to Kansas' modern capital sentencing scheme, which requires
a bifurcated trial with separate guilt and sentencing phases. As such, the LDF concludes
that section 5 no longer authorizes death qualification under K.S.A. 22-3410.

We question the LDF's narrow characterization of the rationale behind the
common-law rule and the dubious assertion it has no application to Kansas' current
capital sentencing scheme. More fundamentally, however, the LDF's argument fails to
demonstrate how death qualification under K.S.A. 22-3410 offends any jury trial right
protected under section 5. Instead, the LDF's argument is founded on the mistaken
premise that section 5 authorizes the Legislature to create or modify juror qualification
and selection standards only if such legislation is affirmatively authorized by common
law (and the original rationale underlying it). But there is no support for this proposition.
In fact, the premise is simply incorrect.

Section 5 does not define the constitutional scope of legislative power. Instead,
such powers are defined in article 2 of the Kansas Constitution. State ex rel. Morrison v.
Sebelius, 285 Kan. 875, 898, 179 P.3d 366 (2008) ("Article 2 of the Kansas Constitution
gives the legislature the exclusive power to pass, amend, and repeal statutes."). Section 5
limits the Legislature's exercise of article 2 powers only when an act conflicts with or
limits a jury trial right that existed at common law when the Kansas Constitution was
adopted in 1859. See Jansky v. Baldwin, 120 Kan. 332, 334, 243 P. 302 (1926) ("Since
the people have all governmental power, and exercise it through the legislative branch
of the government, the legislature is free to act except as it is restricted by the state
constitution."); Atchison Street Rly. Co. v. Mo. Pac. Rly. Co., 31 Kan. 660, 665, 3 P. 284
(1884) (Kansas Constitution Bill of Rights limits legislative power where act "trenches
upon the rights guaranteed by them, or which conflicts with any limitation expressed in
them."); see also Love, 305 Kan. at 735 (rejecting defendant's argument that "because

46
juries were instructed on lesser included offenses at common law, the practice was frozen
for all time" as "an overbroad interpretation of Section 5 and its protections").

As established above, the parties agree that the prevailing common law in 1859
permitted death qualification, and Kansas' territorial laws were consistent with this
common-law rule. Kan. Terr. Stat. 1859, ch. 27, § 179. The LDF fails to identify any
common-law rule in Kansas that prohibited death qualification at the time our
Constitution was adopted in 1859. See Prouty v. Stover, 11 Kan. 235, 256 (1873) ("The
mere silence of the constitution on any subject cannot be turned into a prohibition.").
Therefore, death qualification under K.S.A. 22-3410 does not violate section 5. See
Kimball and others v. Connor, Starks and others, 3 Kan. 414, 432 (1866) ("Trial by jury
is guaranteed only in those cases where that right existed at common law.").

Quoting State v. Peterson, No. 116,931, 2018 WL 4840468, at *1 (Kan. App.
2018) (unpublished opinion), the LDF asserts that "'citizens called for jury duty have a
constitutional right to serve if they are otherwise qualified.'" (Emphasis added.) This
unpublished Court of Appeals decision fails to advance the LDF's section 5 claim.
Peterson addressed a challenge brought under the Equal Protection Clause of the United
States Constitution, not section 5. Also, Peterson does not identify any common-law right
incorporated into section 5 that would prohibit death qualification pursuant to K.S.A. 22-
3410. Moreover, Peterson acknowledges that potential jurors must still be qualified to
serve—that is, jurors must be able to fulfill the traditional functions and duties of a
Kansas jury. 2018 WL 4840468, at *1. And, as established above, the term "jury," as
used in section 5, excludes potential jurors who cannot fulfill these traditional functions
due to their conscientious objection to the death penalty.

47
 D. The Lack of Factual Findings Forecloses Our Review of the Disparate Impact
Challenge

Finally, the LDF claims death qualification disparately impacts the racial
composition and biases of juries in capital sentencing proceedings, contrary to R. Carr's
section 5 right to trial by jury. Specifically, the LDF argues death qualification
disproportionately excludes Black venirepersons and produces a jury with higher levels
of implicit and explicit racial bias; and such juries are "'disproportionately guilt-prone
and death-prone.'"

These allegations most certainly warrant careful analysis and scrutiny. But the
issue—whether death qualification disparately impacts the racial composition of the jury
or its propensity to convict and sentence a defendant—raises a question of fact. Indeed,
the LDF cites several empirical studies to support its claims.

However, the issue was not raised or developed at trial. As a result, the district
court made no factual findings related to the LDF's claim. "'[A]ppellate courts do not
make factual findings but review those made by district courts.'" State v. Reed, 300 Kan.
494, 513, 332 P.3d 172 (2014). And the absence of such findings precludes us from
conducting any meaningful review of this issue. See State v. Wright, 305 Kan. 1176,
1179, 390 P.3d 899 (2017) (lack of factual findings precluded meaningful review of
harmless error analysis of constitutional challenge).

This holding is bolstered by our previous decision in R. Carr, where we affirmed
the district court's rulings on the for-cause challenges R. Carr had raised on appeal. In
other words, we previously determined that substantial competent evidence supported the
district court's conclusion that the individuals empaneled as members of R. Carr's jury
were impartial and qualified. R. Carr, 300 Kan. at 114-24. This holding, which is now the
law of the case, further suggests the sentence of death was not imposed under the

48
influence of passion, prejudice, or any other arbitrary factor, including the State's ability
to death qualify jurors under K.S.A. 22-3140. See K.S.A. 2020 Supp. 21-6619(c)(1)
(requiring court to determine whether sentence was imposed under such improper
circumstances).

In sum, both the plain meaning and historical record confirm that a "jury" is
defined as a group comprised of persons who will determine issues of fact and return a
decision based on the evidence and in accordance with the law as instructed. Death
qualification under K.S.A. 22-3410, as limited by the Eighth Amendment to the United
States Constitution, removes only those prospective jurors who cannot fulfill these
obligations due to conscientious objection to the death penalty, i.e., the statute authorizes
removal of those prospective jurors excluded from the constitutional definition of a
"jury." Thus, death qualification facilitates the very jury trial right guaranteed by section
5. Moreover, when the Kansas Constitution was adopted in 1859, the common law did
not preclude, and in fact authorized, this procedure. For these reasons, we hold that death
qualification under K.S.A. 22-3410 does not violate section 5.

III. The Motion and State Law Challenge to the Mitigating Circumstances Instruction

Having resolved the challenges raised under the Kansas Constitution, we next
address R. Carr's pending motion to apply state law to the burden-of-proof jury
instruction for mitigating circumstances. This equivalent federal constitutional issue
was designated P10 in our earlier decision. R. Carr, 300 Kan. at 256, 302-03.

We deny the motion but reach the claim's merits. We hold that an instruction on
the burden of proof for mitigating circumstances is not required under state law,
overturning the holding in Cheever II, 306 Kan. 760, Syl. ¶ 5, that K.S.A. 21-4624(e),
now codified as K.S.A. 2020 Supp. 21-6617(e), requires such an instruction.

49
 A. Standard of Review and Legal Framework

We apply a four-step analysis to review jury instruction challenges:

"(1) First, the appellate court should consider the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review;
(2) next, the court should use an unlimited review to determine whether the instruction
was legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless, utilizing the test and
degree of certainty set forth in [State v. ]Ward." State v. Plummer, 295 Kan. 156, 163,
283 P.3d 202 (2012).

To the extent the legal appropriateness of the instruction requires statutory interpretation
of K.S.A. 21-4624(e), we review that issue de novo. See State v. Harris, 311 Kan. 816,
821, 467 P.3d 504 (2020).

B. Discussion of the Motion and Underlying Merits

In its earlier decision, the court relied on Gleason I, 299 Kan. at 1196-98, to
provide guidance for the burden-of-proof instruction issue on remand. The court advised
that a district judge in Kansas must instruct a penalty-phase jury that the existence of
mitigating factors need not be proved beyond a reasonable doubt. R. Carr, 300 Kan. at
302-03. The court noted further that the failure to give this instruction would have
required it to vacate R. Carr's death sentence on Eighth Amendment grounds, were it not
already doing so because of the failure to sever. 300 Kan. at 303.

50
 In Kansas v. Carr, the United States Supreme Court held the Eighth Amendment
does not require the instruction. 577 U.S. at 122. Thereafter, R. Carr filed his motion with
our court, arguing the instruction is compulsory under state law and the district court's
failure to give it was reversible error. R. Carr claimed we had effectively made that state
law determination in Gleason I and nothing in the United States Supreme Court's opinion
prevented this holding under state law. He also argued the instructions created a
"reasonable likelihood" the jurors applied a beyond-a-reasonable-doubt standard to his
proffered mitigation evidence when considered as a whole.

We deny R. Carr's motion because it is an inappropriate procedural vehicle to
advance this new, state-law instructional issue. See Cheever II, 306 Kan. at 774 (denying
similar motion on same instruction issue); Gleason II, 305 Kan. at 798 (same).
Nevertheless, we address the merits of the claim given our statutory obligation in capital
appeals to both consider "the question of sentence" and "notice unassigned errors
appearing of record if the ends of justice would be served thereby." K.S.A. 2020 Supp.
21-6619(b); Cheever II, 306 Kan. at 774 (electing to reach merits of similar issue
"[u]nder the unique circumstances of [the] case and in the interest of judicial economy");
Gleason II, 305 Kan. at 798-99 (same).

Turning to the merits, we conclude the failure to give the instruction was not error
under Kansas law. Granted, under the first component of the four-part framework, both
R. Carr and J. Carr preserved this challenge by requesting the mitigating circumstances
burden-of-proof instruction at trial. See State v. Perez, 306 Kan. 655, 667-68, 396 P.3d
78 (2017) (holding first step satisfied when defendant challenged on appeal district
court's failure to give requested instruction).

51
 But our resolution of the issue turns on whether step two is also satisfied—i.e.,
whether the instruction as given is legally appropriate. State v. Pabst, 273 Kan. 658, 659,
44 P.3d 1230 (2002) (focusing analysis on whether instruction given fairly and accurately
stated the law as applied to the facts of the case where requested instruction denied). In
Cheever II, a majority of the court held that K.S.A. 21-4624(e) "provides greater
protection to a death-eligible defendant than required by the federal Constitution. In
Kansas, a capital jury must be instructed that mitigating circumstances need not be
proved beyond a reasonable doubt." 306 Kan. 760, Syl. ¶ 5. Although this court had not
previously addressed the burden-of-proof issue as a matter of state law, the Cheever II
court concluded that pronouncements in Kleypas I, although dicta, had recognized a
construction of the statute that requires a capital sentencing jury be instructed that
mitigating circumstances need not be proven beyond a reasonable doubt. Cheever II,
306 Kan. at 784; see Kleypas I, 272 Kan. at 1078. The court acknowledged that the
earlier rulings had been framed in the context of federal constitutional claims (claims that
were subsequently rejected by the Kansas v. Carr Court), but nonetheless concluded that
state statute independently required such an instruction. The court reiterated this position
in Gleason II, 305 Kan. at 798-806.

Despite this court's previous pronouncements, we revisit the issue today, and we
conclude that the district judge's instructions to R. Carr and J. Carr's jury correctly stated
the law. We recognize "[t]he doctrine of stare decisis provides that 'points of law
established by a court are generally followed by the same court and courts of lower rank
in later cases in which the same legal issue is raised.'" State v. Clark, 313 Kan. 556, 565,
486 P.3d 591 (2021). Application of the doctrine promotes stability within the legal
system, and "'we do not lightly disapprove of precedent.'" 313 Kan. at 565. But "'"stare
decisis is not an inexorable command."'" 313 Kan. at 565 (quoting State v. Hambright,
310 Kan. 408, 416, 447 P.3d 972 [2019]). Where, as here, we are convinced that the
original holding is neither sound nor firmly entrenched, it is incumbent on the court to

52
correct it. See McCullough v. Wilson, 308 Kan. 1025, 1036, 426 P.3d 494 (2018)
(acknowledging this court's authority to overturn precedent where rule of law erroneous
or no longer sound).

The challenged instruction provides:

"The State has the burden to prove beyond a reasonable doubt that there are one
or more aggravating circumstances and that they outweigh mitigating circumstances
found to exist."

The jury was also instructed that each member can decide what circumstances are
mitigating and that unanimity is not required in that regard:

"The determination of what are mitigating circumstances is for you as jurors to
decide under the facts and circumstances of the case. Mitigating circumstances are to be
determined by each individual juror when deciding whether the State has proved beyond
a reasonable doubt that the death penalty should be imposed. 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."

Similarly, the instruction describing the verdict forms reiterated these basic points.

"When considering an individual defendant, if you find unanimously beyond a
reasonable doubt that there are one or more aggravating circumstances and that they
outweigh mitigating circumstances found to exist, then you shall impose a sentence of
death. If you sentence the particular defendant to death, you must designate upon the
appropriate verdict form with particularity the aggravating circumstances which you
unanimously find beyond a reasonable doubt. That is Verdict Form (1).

53
 "If you find that the evidence does not prove any of the claimed aggravating
circumstances beyond a reasonable doubt, your presiding juror should mark the
appropriate verdict form. That is Verdict Form (2). The court will fix a proper sentence
for the particular defendant.

"If one or more jurors is not persuaded beyond a reasonable doubt that
aggravating circumstances exist or that those found to exist do not outweigh mitigating
circumstances, then you should sign the appropriate alternative verdict form indicating
the jury is unable to reach a unanimous verdict sentencing the defendant to death. That is
Verdict Form (3). In that event, the court will fix a proper sentence for the particular
defendant."

When reviewing the legal propriety of penalty phase instructions addressing
mitigating circumstances, we must consider whether the instructions, considered together
as a whole, fairly and accurately state the applicable law and "whether a jury could have
been misled into not considering certain mitigating circumstances that, by law, should
have been considered." Gleason II, 305 Kan. at 820 (Stegall, J., concurring); see also
In re Care and Treatment of Quillen, 312 Kan. 841, 849, 481 P.3d 791 (2021) ("When
reviewing jury instruction challenges, we consider '''jury instructions as a whole . . . to
determine whether they properly and fairly state the applicable law or whether it is
reasonable to conclude that they could have misled the jury."'").

K.S.A. 21-4624(e) establishes the law governing the jury's consideration of
aggravating and mitigating circumstances during the penalty phase:

"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

54
 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
dismiss the jury and impose a sentence of imprisonment of life without the possibility of
parole and shall commit the defendant to the custody of the secretary of corrections. In
nonjury cases, the court shall follow the requirements of this subsection in determining
the sentence to be imposed." K.S.A. 21-4624(e); see also K.S.A. 2020 Supp. 21-6617(e)
(same).

The challenged instruction was patterned after this court's then-controlling interpretation
of K.S.A. 21-4624(e). See Kleypas I, 272 Kan. 894, Syl. ¶¶ 45-58 (holding equipoise
weighing equation favoring State unconstitutional, reformulating language to require
aggravating circumstances outweigh mitigating circumstances), overruled by Marsh, 278
Kan. at 544-45. Thus, the instruction properly and fairly stated the law governing
mitigating circumstances in Kansas. Cf. State v. Woods, 222 Kan. 179, 183, 563 P.2d
1061 (1977) (generally, "an instruction patterned after the statute is valid").

Furthermore, there is no reasonable likelihood the instruction misled jurors and
prevented them from considering relevant mitigating evidence as required under K.S.A.
21-4624(e). As the United States Supreme Court observed:

"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 much sense, since one of the mitigating circumstances is
(curiously) 'mercy,' which simply is not a factual determination." Carr, 577 U.S. at 121.

55
For these reasons, "no juror would reasonably have speculated that mitigating
circumstances must be proved by any particular standard, let alone beyond a reasonable
doubt." 577 U.S. at 122. Under the same logic, the challenged instruction did not impede
jurors from considering appropriate mitigation under K.S.A. 21-4624(e). Although
R. Carr's proposed instruction might also be legally correct, it is not an indispensable part
of communicating to the jury the process by which it should carry out its deliberations
under state law.

The instructions viewed together as a whole correctly and clearly informed the
jurors of the law governing their consideration of mitigating circumstances. Accordingly,
we find no error in the instructions as given. See State v. McDaniel, 306 Kan. 595, 616,
395 P.3d 429 (2017) ("The trial court did not err by failing to instruct the jury with the
additional language [defendant] request[ed] because the instruction given fairly and
accurately stated the law and accordingly was legally appropriate.").

IV. The Remaining Penalty Phase Issues

Having resolved R. Carr's state constitutional challenge and his motion to consider
the instructional challenge under state law, our analysis turns to the remaining penalty
phase issues raised by the defendants.

A. P1/21—Severance

In the court's previous decision, it considered whether the district court should
have severed the trial's guilt phase under Kansas law. R. Carr, 300 Kan. at 93-94 (citing
K.S.A. 22-3202[3]; K.S.A. 22-3204; State v. Davis, 277 Kan. 231, 239, 83 P.3d 182
[2004] [listing five factors employed to determine whether prejudice sufficient to
mandate severance]). It concluded the district court erred in denying defendants' repeated

56
requests to sever. R. Carr, 300 Kan. at 95-97 (defendants had antagonistic defenses;
evidence in favor of one defendant admissible in separate trial not allowed in joint trial).
But a majority held the error was harmless in the guilt phase due to the overwhelming
strength of the evidence against the defendants. 300 Kan. at 100-01; J. Carr, 300 Kan. at
356.

The court separately analyzed whether the failure to sever penalty-phase
proceedings violated R. Carr's right to an individualized capital sentencing determination
under the Eighth Amendment to the United States Constitution. R. Carr, 300 Kan. at 275-
82. Utilizing factors similar to those relied on for the guilt-phase severance analysis
(antagonistic nature of mitigation cases, admission of evidence by one defendant not
likely to have been admitted in severed trial), it concluded that the failure to sever the
penalty-phase proceedings violated the Eighth Amendment. The court vacated the death
sentences and remanded the case to the district court because it was unable to find
beyond a reasonable doubt that the error had little, if any, likelihood of changing the
jury's ultimate conclusion regarding the weight of the aggravating and mitigating
circumstances, in light of the record as a whole. 300 Kan. at 281-82; J. Carr, 300 Kan.
at 371.

The United States Supreme Court rejected our court's Eighth Amendment analysis
in favor of a due process framework:

"As we held in Romano v. Oklahoma, 512 U.S. 1 (1994), it is not the role of the Eighth
Amendment to establish a special 'federal code of evidence' governing 'the admissibility
of evidence at capital sentencing proceedings.' Id., at 11-12. Rather, it is the Due Process
Clause that wards off the introduction of 'unduly prejudicial' evidence that would
'rende[r] the trial fundamentally unfair.' Payne v. Tennessee, 501 U.S. 808, 825 (1991);
see also Brown v. Sanders, 546 U.S. 212 (2006)." Carr, 577 U.S. at 123.

57
And it concluded without reservation that the district court's failure to sever did not
violate the defendants' constitutional protections under the Due Process Clause:

"In light of all the evidence presented at the guilt and penalty phases relevant to
the jury's sentencing determination, the contention that the admission of mitigating
evidence by one brother could have 'so infected' the jury's consideration of the other's
sentence as to amount to a denial of due process is beyond the pale." 577 U.S. at 124.

With the federal question answered, on remand we invited the parties to address
whether state law required the district court to sever the penalty-phase proceedings. We
directed them to designate the severance issue as P21, even though it was designated P1
in our previous decision.

R. Carr contends this court already decided the penalty-phase severance issue
under state law by applying the state-law severance standard to reach its Eighth
Amendment conclusion. The State urges us to reevaluate that conclusion in light of the
United States Supreme Court's unequivocal assessment that "[o]nly the most extravagant
speculation would lead to the conclusion that the supposedly prejudicial evidence
rendered the Carr brothers' joint sentencing proceeding fundamentally unfair." 577 U.S.
at 126. The State submits the same logic applies under state law. Like R. Carr, the State
treats the state-law penalty phase severance question as an issue distinct from the guilt-
phase severance issue.

J. Carr takes a different tack and suggests the question on remand is whether
the state law-based failure to sever during the guilt phase resulted in prejudice in the
sentencing phase. Or, as J. Carr puts it, "there is no basis in state law for this Court to
hold that the district court's failure to sever the trials ceased to be an error once the
sentencing phase of trial began."

58
 We agree with J. Carr's framing of the issue. This court previously held that the
trial court's refusal to sever the defendants' trials during the guilt phase constituted error
under Kansas law. R. Carr, 300 Kan. at 97. This holding was not disturbed by the United
States Supreme Court's subsequent opinion in Kansas v. Carr. As such, this holding is
now the law of the case for purposes of this appeal. State v. Cheeks, 313 Kan. 60, 66, 482
P.3d 1129 (2021) (Under the law of the case doctrine, when a second appeal is brought to
this court in the same case, the first decision is the settled law of the case on all questions
involved in the first appeal, and reconsideration will not normally be given to such
questions.). The improper joinder of the defendants did not cease to be error at the
commencement of the penalty phase.

Accordingly, we hold today that this error continued into the penalty phase. That
said, the error does not require reversal of R. Carr's death sentence. We conclude there is
no reasonable probability this error affected the death sentence verdict. State v. Ward,
292 Kan. 541, 565, 256 P.3d 801 (2011).

As an error carried over from the trial's guilt phase, our penalty-phase harmless
error analysis necessarily begins with reviewing what circumstances caused us to
conclude there was error. In R. Carr, we held a state-law error occurred when the district
judge abused his discretion by refusing to sever the guilt phase trials. Reviewing the
factors supporting severance, we noted only two cut in defendants' favors. The first was
the defendants' antagonistic defenses that emphasized the strength of the evidence against
the other. We described this as "[e]ach . . . [doing] his best to deflect attention from
himself on the Birchwood crimes by assisting in the prosecution of the other." R. Carr,
300 Kan. at 95. The second was the conclusion that the joint trial resulted in the exclusion
of evidence each defendant could have used to bolster his antagonistic identity defense.
See 300 Kan. at 97.

59
 In deciding the district judge abused his discretion in denying severance, our court
cited two mistakes of law: failing to perform the necessary analysis when ruling on the
issue at a pretrial hearing; and ruling based on an incorrect view that defendants'
incriminating statements, inadmissible during the joint guilt-phase trial, would also be
inadmissible during separate trials. 300 Kan. at 97-98. We also observed

"an abuse of discretion in the dearth of record support for Judge Clark's virtually
indistinguishable, nearly completely unexplained rulings over time, even though the
conflict between the defendant's theories became more and more clear and the pile of
evidence that would be excluded because of the joint trial grew ever taller. Given Judge
Clark's continuing duty to carefully consider severance to avoid prejudice to a defendant,
and the overriding status of the defendant's right to fair trial, Judge Clark's decisions were
progressively unreasonable." 300 Kan. at 98.

But we held the error did not require reversal. "Although its path to R. Carr's
convictions was made somewhat smoother and straighter by the judge's related guilt
phase errors on severance and on third-party evidence and hearsay, the State presented
compelling evidence of R. Carr's guilt, all of which would have been admissible in a
severed trial." 300 Kan. at 100-01. Like the finding of error itself, this court's holding—
that the failure to sever did not contribute to the jury's guilt-phase verdict—is also settled
law for purposes of this appeal under the law of the case doctrine.

Therefore, today, we must determine whether this error, which was harmless in
the guilt phase, so prejudiced defendants in the penalty phase that we must vacate their
capital sentences. We place the burden of demonstrating harmlessness on the party
benefitting from the error, i.e., the State. 300 Kan. at 95 (evolving caselaw generally
places burden demonstrating harmlessness on party benefitting from error). Because
the error arises under state law, the State's burden is to show there is no reasonable
probability the error affected the jury's ultimate conclusion regarding the death sentence
verdict. See K.S.A. 2020 Supp. 60-261; Ward, 292 Kan. at 569.

60
 Though we now consider the severance issue under state law, the United States
Supreme Court's assessment of this issue under federal law remains instructive and
continues to inform our reversibility analysis. The higher Court concluded that the
brothers did not even raise an Eighth Amendment problem by arguing they were
prejudiced by mitigation evidence that would have been inadmissible in severed
proceedings. Instead, their argument is subject to due process analysis because "it is the
Due Process Clause that wards off the introduction of 'unduly prejudicial' evidence that
would 'rende[r] the trial fundamentally unfair.'" Carr, 577 U.S. at 123. Thus, the proper
question was not whether the "right to an individualized sentencing determination was
fatally impaired" by the failure to sever, but "whether the evidence 'so infected the
sentencing proceeding with unfairness as to render the jury's imposition of the death
penalty a denial of due process.'" 577 U.S. at 123-24; see R. Carr, 300 Kan. at 281.

Notably, "[t]he mere admission of evidence that might not otherwise have been
admitted in a severed proceeding does not demand the automatic vacatur of a death
sentence." Carr, 577 U.S. at 124. Although the higher Court focused on the question of
error rather than harmlessness, its analysis leaves little room to conclude the failure to
sever requires reversal now as a state-law error. The higher Court rejected all notion that
the failure to sever had any impact on the jury's penalty-phase verdict. See 577 U.S. at
126 (holding "[i]t is beyond reason to think that the jury's death verdicts were caused by"
allegedly prejudicial evidence in light of the evidence of the "almost inconceivable
cruelty and depravity" of the defendants' acts). Indeed, it essentially concluded the
defendants' argument was so weak that even assuming witness statements found in police
reports had been erroneously admitted without opportunity for confrontation, "We are
confident that [allowing defendants] cross-examination regarding these police reports
would not have had the slightest effect upon the sentences." 577 U.S. at 126. For us to
conclude that there is a reasonable probability the antagonistic evidence affected the

61
jury's death sentence verdict, we would have to reject the higher Court's assessment that
even such a possibility was "beyond reason." Neither the record nor the parties briefing
offer any basis for our court to question the conclusion of the United States Supreme
Court.

The United States Supreme Court's assessment, coupled with the strength of the
State's penalty-phase evidence (discussed more fully below in our cumulative error
analysis), demonstrates that the state-law severance error was harmless.

B. P2—Notice of Aggravating Circumstances

R. Carr next alleges the State failed to give him constitutionally sufficient notice
of the aggravating factors it intended to rely on to seek the death penalty, despite
complying with K.S.A. 21-4624(a)'s notice requirements. In its previous decision, the
court rejected the argument under its established precedent. R. Carr, 300 Kan. at 282; see
State v. Scott, 286 Kan. 54, 101-02, 183 P.3d 801 (2008) (holding statutorily compliant
notice of intent to seek death penalty is sufficient to give defendant meaningful
opportunity to respond to statutory aggravating factors).

Neither R. Carr nor J. Carr submit any additional authority causing us to
reconsider that decision. Under the law of the case, we continue to hold that R. Carr had
constitutionally sufficient notice of the aggravating factors the State intended to pursue.
See Cheeks, 313 Kan. at 66.

C. P3—Channeling of Jury's Discretion

J. Carr originally challenged whether the four aggravating circumstances asserted
by the State adequately channeled the jury's discretion in arriving at the death sentence.

62
The constitutional overbreadth challenge was noticed as an unassigned error in R. Carr's
appeal under K.S.A. 2020 Supp. 21-6619(b).

We rejected the challenge, explaining:

"We have rejected the defense arguments advanced here on each of the four
aggravators, when those arguments were made on behalf of other death penalty
defendants. See State v. Scott, 286 Kan. at 108-10 (rejecting argument on multiple
murder, monetary gain); State v. Kleypas, 272 Kan. at 1025 (rejecting argument on
avoidance of arrest; especially heinous, atrocious, cruel). The defense has not given us
cause to revisit these holdings in this case." R. Carr, 300 Kan. at 283.

The parties submitted no new authority addressing any of the four aggravators. Thus, we
affirm this holding as the law of the case. See Cheeks, 313 Kan. at 66.

However, one point of clarification is in order. In its earlier decision, the court
correctly observed that our precedent had previously rejected overbreadth challenges to
the "multiple murder," "monetary gain," and "especially heinous, atrocious, or cruel"
aggravators. R. Carr, 300 Kan. at 282-83. However, the statement about the "avoidance
of arrest" aggravator warrants additional discussion based on the original holding in
Kleypas I.

The Kleypas I court recognized the defendant had challenged this aggravator for
vagueness and overbreadth. 272 Kan. at 1019 (noting arguments on sufficiency of
evidence to support aggravator, aggravator's violation of federal and state constitutional
provisions by failure to narrow class of persons eligible for death penalty). It maintained
"[o]ther courts have determined that the avoid arrest aggravator on its face is not
unconstitutionally vague or overbroad." 272 Kan. at 1023. And it concluded there was

63
sufficient evidence to support the jury's finding of the aggravating circumstance.
However, it did not expressly rule on the constitutional challenge. 272 Kan. at 1024-25.

Today we take the step not quite articulated in Kleypas I by simply stating the
avoidance-of-arrest aggravator, K.S.A. 2020 Supp. 21-6624(e), effectively channels the
discretion of the sentencer and is not facially overbroad. Cf. Coulter v. State, 304 Ark.
527, 533, 804 S.W.2d 348 (1991); Wiley v. State, 750 So. 2d 1193, 1207 (Miss. 1999);
Castro v. State, 844 P.2d 159, 175 (Okla. Crim. App. 1992). With today's clarification
and additional holding, we reject this challenge.

D. P4—Unavailability of Transcript of Jury View

In its earlier decision, this court concluded R. Carr failed to establish that a
constitutional violation arose from the failure to have a court reporter present at the jury
view. R. Carr was provided a reasonably accurate and complete record of the proceedings
against him, which was all he was entitled to under the United States Constitution.
R. Carr, 300 Kan. at 284. Moreover, there was no substantive claim left unreviewable
because of the lack of transcript. See 300 Kan. at 283. We reached the same decision in
J. Carr's case. J. Carr, 300 Kan. at 368.

The parties submitted no additional authority to persuade us to reconsider these
holdings. Under the law of the case, no error occurred.

E. P5—Constitutional Challenges to K.S.A. 21-4624(c)

R. Carr claims hearsay admitted under K.S.A. 21-4624(c)'s relaxed evidentiary
standard during his penalty-phase trial violated both the Eighth Amendment's heightened
reliability standard and the Confrontation Clause. See Crawford v. Washington, 541 U.S.

64
36, 59, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (testimonial out-of-court statements by
witness barred under Confrontation Clause unless witness unavailable, defendant had
prior opportunity to cross-examine). The statute's language and our standard of review
were previously set out.

"K.S.A. 21-4624(c) provides for a relaxed evidentiary standard during the
penalty phase of a capital proceeding:

'In the sentencing proceeding, evidence may be presented
concerning any matter that the court deems relevant to the question of
sentence and shall include matters relating to any of the aggravating
circumstances enumerated in K.S.A. 21-4625 and amendments thereto
and any mitigating circumstances. Any such evidence which the court
deems to have probative value may be received regardless of its
admissibility under the rules of evidence, provided that the defendant is
accorded a fair opportunity to rebut any hearsay statements. Only such
evidence of aggravating circumstances as the state has made known to
the defendant prior to the sentencing proceeding shall be admissible, and
no evidence secured in violation of the constitution of the United States
or of the state of Kansas shall be admissible.'

"'When the application of a statute is challenged on constitutional grounds, this
court exercises an unlimited, de novo standard of review.' State v. Cook, 286 Kan. 766,
768, 187 P.3d 1283 (2008) (citing State v. Myers, 260 Kan. 669, 676, 923 P.2d 1024
[1996], cert. denied 521 U.S. 1118 [1997]).

"'"The constitutionality of a statute is presumed. All doubts must
be resolved in favor of its validity, and before the act may be stricken
down it must clearly appear that 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 to
construe the statute as constitutionally valid, that should be done. A
statute should not be stricken down unless the infringement of the

65
 superior law is clear beyond reasonable doubt. [Citations omitted.]"'
State v. Brown, 280 Kan. 898, 899, 127 P.3d 257 (2006)." R. Carr, 300
Kan. at 285.

1. K.S.A. 21-4624(c) Does Not Violate Heightened Reliability
Requirements of the Eighth Amendment

In R. Carr, the court unanimously rejected the argument that K.S.A. 21-4624(c)
offends the heightened reliability standard based on the court's previous denial of a due
process challenge to the statute in Scott, 286 Kan. at 99-101. R. Carr, 300 Kan. at 286-87.
The Scott court had concluded the statute was consistent with the United States Supreme
Court's "'all relevant evidence' doctrine"—a doctrine that encourages jurors to have all
possible relevant information about the individual defendant because heightened
reliability in sentencing is achieved by including more evidence on the presence or
absence of aggravating and mitigating factors. 300 Kan. at 286-87; see also Scott, 286
Kan. at 100 (citing Jurek v. Texas, 428 U.S. 262, 276, 96 S. Ct. 2950, 49 L. Ed. 2d 929
[1976]; Gregg v. Georgia, 428 U.S. 153, 204, 96 S. Ct. 2909, 49 L. Ed. 2d 859 [1976];
Woodson v. North Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 49 L. Ed. 2d 944 [1976]).

The parties cite no new authority to question this holding. Applying the law of the
case, we continue to reject R. Carr's heightened reliability challenge.

2. The Confrontation Clause Challenge Does Not Warrant Reversal of
the Jury's Death Verdict

R. Carr also contends his Sixth Amendment confrontation rights were violated
when the district court allowed prosecutors to reference out of court witness statements
(recorded in police reports) during cross-examination of several defense witnesses. See
R. Carr, 300 Kan. at 288. In its previous decision, this court did not reach a holding on
the question of error or reversibility concerning this issue. See 300 Kan. at 288.

66
 However, this court declared in general fashion that

"Kansas now holds that the Sixth Amendment applies in the [penalty-phase] proceeding
and that out-of-court testimonial hearsay may not be placed before the jury without a
prior opportunity for the defendant to cross-examine the declarant. This includes any
testimonial hearsay referenced in questions posed by counsel." 300 Kan. at 288.

We apply our previous rationale to R. Carr's challenge and assume that it was
constitutional error for the State to incorporate hearsay statements from police reports
into its cross-examination questions propounded to defense witnesses.

However, before turning to the question of reversibility, we first qualify our
previous declaration that the Sixth Amendment applies in the penalty phase of a capital
murder trial. We continue to hold that the Confrontation Clause applies during the
penalty phase, but its application is limited to evidence relevant to the jury's "eligibility"
decision, i.e., evidence relevant to the existence of one or more statutory aggravating
circumstances.

a. In Kansas Capital Sentencing Proceedings, the Confrontation
Clause Applies Only to Evidence Relevant to the Jury's Eligibility
Decision

In R. Carr, this court acknowledged a split in authority from jurisdictions
addressing the Confrontation Clause's application during the penalty phase of a capital
trial. See 300 Kan. at 287-88. Federal circuits addressing the issue have generally rejected
defendants' claims that the Confrontation Clause universally applies to all evidence
admitted during the penalty phase. See, e.g., United States v. Umana, 750 F.3d 320,
347 (4th Cir. 2014); Muhammad v. Secretary, Florida Dept., 733 F.3d 1065, 1073-77
(11th Cir. 2013); United States v. Fields, 483 F.3d 313, 324-338 (5th Cir. 2007). Since

67
our previous decision, the Eighth Circuit has also joined the list of federal circuits so
holding. See United States v. Coonce, 932 F.3d 623, 640-41 (8th Cir. 2019), petition for
cert. filed February 28, 2020.

Generally, these federal circuits treat Williams v. New York, 337 U.S. 241, 69
S. Ct. 1079, 93 L. Ed. 1337 (1949), as controlling precedent. Williams held that when
imposing a sentence, the Due Process Clause does not limit a trial judge's ability to
consider out-of-court sources of information admitted without the opportunity for cross-
examination. 337 U.S. at 251-52.

However, these federal circuits have not uniformly determined whether Williams
applies to evidence related to both the "eligibility" and "selection" decisions Kansas
juries must make during the penalty phase before imposing a sentence of death. As
detailed below, the distinction between the eligibility decision and the selection decision
is one with constitutional significance, and this distinction largely defines the scope of a
defendant's confrontation rights under Kansas' capital sentencing scheme.

Before delving into that analysis, however, it is helpful to clarify the meaning of
the "eligibility" and "selection" decisions in penalty-phase proceedings. "Our capital
punishment cases under the Eighth Amendment address two different aspects of the
capital decision-making process: the eligibility decision and the selection decision. To be
eligible for the death penalty, the defendant must be convicted of a crime for which the
death penalty is a proportionate punishment." (Emphasis added.) Tuilaepa v. California,
512 U.S. 967, 971, 114 S. Ct. 2630, 129 L. Ed. 2d 750 (1994). In Kansas, a defendant
who has been convicted of capital murder becomes eligible for a sentence of death when
the State establishes the existence of "one or more of the aggravating circumstances
enumerated" by statute. See K.S.A. 21-4624(e), now codified as K.S.A. 2020 Supp. 21-

68
6617(e). The "eligibility" decision arises from the Eighth Amendment requirement to
narrow the class of individuals who may be lawfully sentenced to death. 512 U.S. at 972.

In the "selection" stage, the jury decides "whether a defendant eligible for the
death penalty should in fact receive that sentence." 512 U.S. at 972. Kansas juries make
their selection decision by applying the statutory weighing equation that pits aggravating
circumstances against mitigating circumstances. See K.S.A. 2020 Supp. 21-6617(e). The
selection decision is not influenced by any constitutional narrowing requirement. "What
is important at the selection stage is an individualized determination on the basis of the
character of the individual and the circumstances of the crime." Zant v. Stephens, 462
U.S. 862, 879, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

Thus, the eligibility decision and the selection decision are influenced by separate
constitutional objectives within the Eighth Amendment. These distinct constitutional
objectives were largely created through significant developments in the United States
Supreme Court's death penalty jurisprudence beginning in the 1970s, years after
Williams. See, e.g., Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346
(1972); Gregg, 428 U.S. at 189; Lockett v. Ohio, 438 U.S. 586, 601-05, 98 S. Ct. 2954,
57 L. Ed. 2d 973 (1978); Godfrey v. Georgia, 446 U.S. 420, 428-33, 100 S. Ct. 1759, 64
L. Ed. 2d 398 (1980).

Further, more recent decisions in Apprendi, Ring, and Alleyne have incrementally
applied Sixth Amendment protections to the sentencing process, while substantially
altering the framework for the eligibility decision in capital proceedings. See Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Ring v. Arizona,
536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002); Alleyne v. United States, 570
U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). In Apprendi, the Court held that
"[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime

69
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt." Apprendi, 530 U.S. at 490. In Ring, the Court held that
statutory aggravating circumstances are the functional equivalent of an element of the
greater offense and concluded the Sixth Amendment required a jury to determine the
presence or absence of such aggravators. Ring, 536 U.S. at 609. In Alleyne, the Court
extended the Apprendi rule to facts that increase mandatory minimum sentences. Alleyne,
570 U.S. at 116.

The development of this precedent subsequent to Williams strongly suggests the
Confrontation Clause applies to the "eligibility" decision in Kansas penalty phase
proceedings. As noted above, under Kansas' capital sentencing scheme, the State must
establish a defendant's "eligibility" for a sentence of death in the penalty phase by
proving beyond a reasonable doubt that one or more statutory aggravating circumstances
exist. These statutory factors restrict the class of death-eligible defendants in our state. In
Ring, the Court held that these types of statutory aggravators are effectively elements of a
greater offense for federal constitutional purposes and "subject to the procedural
requirements the Constitution attaches to trial of elements." Schriro v. Summerlin, 542
U.S. 348, 354, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004); see United States v. Fell, 531
F.3d 197, 239 (2d Cir. 2008) (Ring and its progeny suggest statutory aggravating factors
should be proven to a jury in the same manner as the other elements of the crime.). At the
time Williams was decided, "capital-sentencing proceedings were understood to be just
that: sentencing proceedings." Sattazahn v. Pennsylvania, 537 U.S. 101, 110, 123 S. Ct.
732, 154 L. Ed. 2d 588 (2003). But with the developments in Apprendi/Ring/Alleyne, the
statutory factors that make a defendant eligible for a death sentence are now deemed the
"'functional equivalent of an element of a greater offense.'" 537 U.S. at 111.

The logical corollary of the Apprendi/Ring/Alleyne rule is that the defendant
should also be afforded the Sixth Amendment's confrontation rights as well—at least to

70
the extent evidence is relevant to the jury's determination of aggravating circumstances,
i.e., the eligibility decision. Even amongst those federal circuits that have applied
Williams to foreclose a defendant's Confrontation Clause challenge, several have
suggested Williams does not extend to evidence offered in connection with the jury's
eligibility decision.

For example, in Fields, the Fifth Circuit acknowledged that after Apprendi and
Ring, "there is a stronger argument to be made for the attachment of the confrontation
right where the government is attempting to establish eligibility-triggering factors:
Though labeled as 'sentencing factors,' those factors are more appropriately considered as
elements of a capital offense." Fields, 483 F.3d at 331 n.18. But in Fields, the defendant
had challenged only "evidence that the government introduced relevant to the jury's
ultimate selection decision," and the court declined to resolve whether the Confrontation
Clause applies to "eligibility-triggering factors." 483 F.3d at 331 n.18.

Likewise, in Umana, the Fourth Circuit held that the "Confrontation Clause does
not preclude the introduction of hearsay statements during the sentence selection phase
of capital sentencing." (Emphasis added.) 750 F.3d at 348. It rejected the defendant's
contention that the Apprendi/Ring/Alleyne rule compelled the extension of the
Confrontation Clause "to every fact that the jury finds, even during the sentence selection
phase." (Emphases added.) 750 F.3d at 347. The Fourth Circuit explained that under the
Federal Death Penalty Act (FDPA), "the jury finds the facts necessary to support the
imposition of the death penalty in the guilt and eligibility phases of trial. . . . It is only
during these phases that the jury makes 'constitutionally significant' factual findings." 750
F.3d at 347-48. However, the defendant in Umana had challenged hearsay evidence
introduced only in the selection phase. As such, the jury considered this evidence "to
assist it in exercising its discretion to select the appropriate sentence" only after finding
defendant was eligible to receive the death penalty. 750 F.3d at 348.

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 Interestingly, in FDPA proceedings, federal courts commonly bifurcate the
sentencing phase

"(or, as some have phrased it, 'trifurcate' the entire trial) into an 'eligibility phase,' limited
to evidence relevant to mental state and to the existence of one or more statutory
aggravating factors, and, if the defendant is found eligible, a 'selection phase,' at which
evidence relevant to mitigating factors and non-statutory aggravating factors such as
victim impact and other crimes is received and weighed by the jury." United States v.
Bolden, 545 F.3d 609, 618 (8th Cir. 2008).

See Fell, 531 F.3d at 239 ("[A] number of district courts have 'trifurcated' capital
proceedings by splitting the sentencing phase into two separate hearings: one for the
eligibility phase and one for the selection phase."). The Second Circuit has explained
this procedure enables the court to "delineate clearly between the applications of the
Confrontation Clause in the eligibility and selection phases." Fell, 531 F.3d at 239. This
rationale implicitly acknowledges that the Confrontation Clause extends to evidence
relevant to the eligibility determination (i.e., the existence of one or more statutory
aggravating circumstances) but not the selection decision.

Utilizing this procedure, many federal courts since Crawford have held that
"confrontation rights persist through the eligibility phase." United States v. Fackrell,
No. 1:16-CR-26(2), 2018 WL 7822173, at *2 (E.D. Tex. 2018) (unpublished opinion);
see also United States v. Mills, 446 F. Supp. 2d 1115, 1125 (C.D. Cal. 2006) ("a
defendant's Sixth Amendment trial rights extend at least to the eligibility phase of capital
sentencing, where a jury is required to find facts that make the defendant eligible for the
death penalty"); United States v. Jordan, 357 F. Supp. 2d 889, 903-04 (E.D. Va. 2005)
(Confrontation Clause applies "at least in the eligibility stage"); United States v. Con-ui,
No. 3:13-CR-123, 2017 WL 783437, at *26-27 (M.D. Pa. 2017) (unpublished opinion)

72
("[the Confrontation] Clause is fully operative at the eligibility phase" and "is
inapplicable only at the selection phase"); United States v. Lujan, No. CR 05-0924RB,
2011 WL 13210246, at *8 (D.N.M. 2011) (unpublished opinion) ("If the penalty phase is
reached, the Confrontation Clause would apply in the eligibility stage due to Ring [v.
Arizona's, 536 U.S. 584,] requirement that facts necessary to expose [the defendant] to a
death sentence must be found by a jury"; however, "[i]f [the defendant] is found eligible
for death, the trial would proceed to the selection stage and the general rule allowing
hearsay at sentencing would apply.").

With the foregoing in mind, we qualify this court's general pronouncement in
R. Carr (that the Confrontation Clause applies during the penalty phase) by clarifying
that in Kansas capital sentencing proceedings, the Confrontation Clause applies only to
evidence relevant to the jury's eligibility decision. A defendant's confrontation rights do
not extend to evidence relevant to the jury's selection decision.

While Kansas' capital sentencing scheme does not contemplate bifurcated penalty-
phase proceedings (only the guilt phase and penalty phase are bifurcated), district court
judges are still well-positioned to delineate between evidence relevant to eligibility and
other evidence relevant to selection. Going forward, trial courts in Kansas should apply
the Confrontation Clause when the State introduces evidence relevant to the existence of
one or more statutory aggravating circumstances. However, when the State introduces or
relies on testimonial hearsay during its rebuttal and cross-examination for purposes of
controverting or impeaching the testimony of a capital defendant's mitigation witnesses—
provided such evidence does not bolster an aggravating circumstance—the Confrontation
Clause shall not apply to such evidence. See State v. McGill, 213 Ariz. 147, 159, 140
P.3d 930 (2006) (recognizing a distinction between "hearsay used to establish an
aggravating factor, to which the Confrontation Clause applies, and hearsay used to rebut
mitigation, to which the Confrontation Clause does not apply").

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 b. Any Confrontation Clause Violation Was Harmless

Despite the foregoing qualification, we will assume the contested evidence in this
case is subject to the Confrontation Clause based on the statements and rationale set forth
in the court's prior decision. On the facts of the case, however, we hold any Confrontation
Clause violation was harmless because there is no reasonable possibility the assumed
error affected the jury's ultimate conclusion regarding the weight of the aggravating and
mitigating circumstances, i.e., the death sentence verdict. See Ward, 292 Kan. at 565
(providing degree of certainty in outcome required to hold an error that implicates federal
constitutional rights was harmless).

In its petitions for writ of certiorari filed with the United States Supreme Court,
the State sought a ruling on this issue, but the Court declined review. See Carr, 575 U.S.
934 (2015) (No. 14-450) (grant of petition for certiorari limited to questions 1 and 3); 575
U.S. 934 (2015) (No. 14-449) (same); Petition for Writ of Certiorari, Kansas v. Carr,
2014 WL 5337864, at *i (2014) (No. 14-450) ("Whether the Confrontation Clause, as
interpreted in Crawford v. Washington, 541 U.S. 36 [2004], and Davis v. Washington,
547 U.S. 813 [2006], applies to the 'selection' phase of capital sentencing proceedings, as
the Kansas Supreme Court held here . . . . "); Petition for Writ of Certiorari, Kansas v.
Carr, 2014 WL 5337863, at *i (2014) (No. 14-449) (same). Nevertheless, the Court
opined that any cross-examination regarding such hearsay statements "would not have
had the slightest effect upon the sentences." Carr, 577 U.S. at 126.

We agree the hearsay statements forming the basis of the prosecutor's cross-
examination questions were innocuous, and the same or similar information was first
introduced by defendants in their mitigation cases. Therefore, even if we assume error
because R. Carr did not have a prior opportunity to cross-examine the declarants, such

74
error alone does not require us to vacate the death sentence. The jury learned little, if
anything, it did not already know about R. Carr from the challenged declarations.

F. P6—Exclusion of Mitigating Evidence

Under the law of the case, we reiterate our previous conclusion that the district
judge did not abuse his discretion by excluding R. Carr's evidence about the likelihood
of being paroled, if not sentenced to death. As more fully explained in R. Carr, that
evidence lacked probative value. The district court correctly ruled it was irrelevant.
R. Carr, 300 Kan. at 291-92; see State v. Prine, 287 Kan. 713, 725, 200 P.3d 1 (2009)
(evidence failing to meet probative value or materiality element of relevance test is
inadmissible).

R. Carr also complained about the district court's decision to exclude as irrelevant
his sister's testimony about what she wanted the jury to do regarding his sentence and
how she would be affected if he were executed. R. Carr did not proffer the excluded
testimony. In its previous decision, the court said, "[A]ny admitted testimony of this
nature needs to have some bearing on the material question of the defendant's character,
i.e., be probative on that material fact." 300 Kan. at 292.

The failure to proffer leaves behind a record devoid of the information necessary
to conduct a meaningful review of the relevancy determination. See State v. Hudgins, 301
Kan. 629, 651, 346 P.3d 1062 (2015) (failure to proffer excluded evidence precludes
appellate review); R. Carr, 300 Kan. at 292-93 (holding that failure to proffer excluded
testimony precluded meaningful review of admissibility). Under the law of the case, we
find no error.

75
 G. P7—Agreement of Other Experts

R. Carr next contends the State elicited expert opinion testimony that violated
the Confrontation Clause. To fully analyze R. Carr's various challenges to the expert
witness testimony and to promote clarity in our discussion, it is helpful to first highlight
additional factual background relevant to these issues. See Issues P8 (surrebuttal
testimony); P18 (prosecutorial error); P22 (cumulative error).

"Dueling PET Scan Experts and Denial of Continuance for Surrebuttal

"The defense presented testimony from Dr. David Preston, a specialist in nuclear
medicine who was qualified as an expert for the defense at the penalty phase regarding
PET imaging and its use as a diagnostic technique. Preston said that a PET scan of a
person's brain is not accepted to predict or explain criminal behavior, but he did identify
what he said were abnormalities in both R. Carr's and J. Carr's scans. Specifically, he said
images of their temporal lobes demonstrated marked deficits in metabolism in the regions
of the hippocampus and amygdala.

"Preston testified that Exhibit A-39, an image of R. Carr's brain, and Exhibit JC-
2, an image of J. Carr's brain, displayed images that were higher in back and lower in
front to give a larger view of their temporal lobes. He also admitted on direct examination
that he had mistakenly classified Exhibit A-40 as a PET scan of a normal young male for
comparison purposes. In fact, it was an image of a 50-year old male with a memory
problem.

"Preston further testified that, in patients he has seen in the past, a closed head
injury would be the first thing he would suspect as a cause of the type of deficits he
observed in the defendants' scans. But he said that no history of closed head injuries was
provided to him in this case.

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 "The State called Dr. Norman Pay, a neuroradiologist, in rebuttal to Preston. On
direct examination, Pay testified that he consulted with the person at Via Christi Medical
Center who performed the PET scans on the defendants, the doctor in charge of PET
scans at Via Christi, and a neurologist at Via Christi. The State had Pay identify these
colleagues, who were in the courtroom, and asked each of them to raise a hand, which
they did. Pay said all three were in agreement with him that Exhibits A-39 and JC-2 were
skewed in color and were manipulated so that the anterior portion of the temporal lobe,
which includes the amygdala, would not appear in the images. When the prosecutor
asked Pay if the manipulated images were 'by design,' he responded, 'We were told.'

"Pay further testified that, looking at all of the PET images, he and the others he
consulted had reached the opinion that the scans showed normal metabolism in both
defendants' brains.

"J. Carr's counsel objected to admission of opinions from Pay's colleagues in the
courtroom, but the objection was overruled.

"On cross-examination, Pay admitted that he normally does not read PET scans,
despite being asked to do so in this case. He said that the difference between JC-2 and
State's Exhibit 912, another of J. Carr's PET scan images on which he was relying to give
his opinion, might be the presence of 'scatter' in 912. Scatter can produce a halo effect
that can be eliminated by reducing the background color.

"When asked if he could tell whether Preston had manipulated the images so that
they would be higher in back and lower in front, Pay responded, 'You know, we have to
have Dr. Preston here to testify because I don't really know what he did.' Pay agreed that
if two dots in one of the images were indicative of J. Carr's eyes, it might necessarily
involve the area of the hippocampus and amygdala. He also testified on cross-
examination that he did not attempt to contact Preston to ask him how he arrived at his
conclusions and that he was not there to cast any aspersions on Preston's integrity or
competence.

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 "The defense requested a continuance to confer with Preston and recall him as a
witness in surrebuttal. Counsel argued that he must be permitted to address the State's
allegation that he manipulated the PET images 'by design.'

"Judge Clark characterized the disagreement between Preston and Pay as 'a fact
question for the jury . . . between experts' and said that Preston 'would be repeating what
he had said in direct.' He denied the motion for continuance.

"In closing argument, one of the prosecutors argued that the 'truth' as revealed by
the 'doctors' showed that Preston's 'slick' PET scan images and related testimony were
'hocus pocus.' The prosecutor said that the 'foundation of the [defendants'] sympathy and
abuse excuse and blame' had come 'crashing down' and that they were simply dragging
their 'laundry' into court." R. Carr, 300 Kan. at 272-75.

R. Carr complains the State's rebuttal expert (Dr. Norman Pay) should not have
been allowed to testify that other experts agreed with his opinions about the positron
emission tomography (PET) scans. We set out this challenged testimony in our earlier
decision. 300 Kan. at 293-95. Considering the question only for guidance on remand, we
concluded the controlling question was whether the out-of-court statements qualified as
testimonial hearsay under the Sixth Amendment and Crawford. Our clarification today
concerning the application of the Confrontation Clause to Kansas penalty phase
proceedings—that confrontation rights apply only to evidence relevant to the jury's
eligibility determination, i.e., the existence of one or more aggravating circumstances—
potentially calls into question the framing of this issue prospectively. But for today's
purposes, in the spirit of the doctrine of the law of the case, we will continue to frame the
issue in this fashion.

Now, presented with this question, we must first examine whether the statements
made by Pay's colleagues were testimonial. We have previously noted that the inquiry
into what constitutes testimonial hearsay "should generally seek to identify statements

78
that are by nature substituting for trial testimony." State v. Williams, 306 Kan. 175, 197,
392 P.3d 1267 (2017); see also United States v. Katso, 74 M.J. 273, 279 (C.A.A.F. 2015)
("'[A] statement is testimonial if "made under circumstances which would lead an
objective witness reasonably to believe that the statement would be available for use at a
later trial."'"), cert. denied 136 S. Ct. 1512 (2016).

In this case, the statements made by Pay's colleagues were testimonial in nature in
that they were made specifically in preparing for trial testimony. But that does not end the
inquiry. An expert's reliance on testimonial hearsay is not a per se Confrontation Clause
violation. Cf. Katso, 74 M.J. at 282 ("[T]he admissibility of the expert's opinion hinges
on the degree of independent analysis the expert undertook in order to arrive at that
opinion."). The question becomes whether the expert is testifying as a witness in his or
her own right or testifying as a mere "conduit" for the testimonial hearsay. See United
States v. Pablo, 696 F.3d 1280, 1288 (10th Cir. 2012) (if expert "simply parrots" another
person's out-of-court statements rather than conveying independent judgment, expert
effectively disclosing statement for substantive truth; "the expert thereby becomes little
more than a backdoor conduit for an otherwise inadmissible statement"). The
Confrontation Clause forecloses the expert's opinion testimony only in the latter instance.
United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009) ("An expert witness's
reliance on evidence that Crawford would bar if offered directly only becomes a problem
where the witness is used as little more than a conduit or transmitter for testimonial
hearsay, rather than as a true expert whose considered opinion sheds light on some
specialized factual situation.").

The expert-as-conduit problem may become especially problematic in federal
gang-related cases in which the nature or existence of a gang is a material issue. See, e.g.,
United States v. Vera, 770 F.3d 1232, 1238 (9th Cir. 2014) ("This testimony was directly
relevant to several material issues in the case, including whether MS13 was an enterprise,

79
had an effect on interstate or foreign commerce or engaged in narcotics trafficking."). In
such cases, a gang expert's testimony may just be a recitation of otherwise inadmissible
evidence to establish material facts rather than a presentation of "information to explain a
bona fide expert opinion." 770 F.3d at 1238.

The Ninth Circuit illustrated the characteristics common to this expert-as-conduit
problem in Vera:

"Most problematically, the agent's drug tax testimony 'was based directly on statements
made by an MS-13 member in custody (during the course of this very investigation).' Id.
(emphasis omitted). To form his drug tax opinion, therefore, the agent did not have to
conduct a 'synthesis of various source materials' or apply any of 'his extensive experience
[or] a reliable methodology.' Id. at 197 (quoting Dukagjini, 326 F.3d at 58) (internal
quotation marks omitted). Instead, the agent 'communicated out-of-court testimonial
statements of cooperating witnesses and confidential informants directly to the jury in the
guise of an expert opinion.'" 770 F.3d at 1238.

Similar issues may arise in the context of expert testimony related to laboratory testing or
autopsies. See, e.g., Williams v. Illinois, 567 U.S. 50, 78, 132 S. Ct. 2221, 183 L. Ed. 2d
89 (2012) (plurality opinion) (discussing "legitimate nonhearsay purpose of illuminating
the expert's thought process").

These decisions illustrate "that the extent to which an expert witness may disclose
to a jury an otherwise inadmissible out-of-court statement without implicating a
defendant's confrontation rights is a question of degree." Pablo, 696 F.3d at 1288 (citing
Johnson, 587 F.3d at 635). We note that in situations such as those described in Vera, the
problem of expert-as-conduit is not the amplification of multiple experts' opinions but the
fact that the so-called expert is not actually giving expert testimony.

80
 Thus, the question of whether Pay's testimony violated the Confrontation Clause
turns on whether Pay was testifying as a witness himself based on an independent
analysis of the evidence or merely as a conduit for the opinions of his colleagues. The
record confirms that Pay was not merely regurgitating the opinion of others. He formed
an independent opinion by synthesizing the scans Dr. David Preston had relied on and
analyzing that information based on his expertise in the field.

Pay's initial testimony identifying his colleagues coincided with the prosecutors
asking various persons in the courtroom to stand and raise their hands. Pay's testimony at
that point was that he had conferred with these people in reaching a conclusion, and that
these individuals had also reviewed the images. Merely informing the jury that he had
consulted with colleagues in reaching his opinion does not violate the Confrontation
Clause, as Pay did not relate any of his colleagues' conclusions. Cf. K.S.A. 2020 Supp.
60-458 ("The facts or data in the particular case upon which an expert bases an opinion or
inference may be those perceived by or made known to the expert. If of a type reasonably
relied upon by experts in the particular field in forming opinions or inferences upon the
subject, the facts or data need not be admissible into evidence in order for the opinion or
inference to be admitted."); State v. Sauerbry, 447 S.W.3d 780, 785 (Mo. App. 2014)
(testifying medical examiner may properly testify to his or her own opinions and
conclusions, even if relying upon absent examiner's report, without violating
Confrontation Clause, so long as testifying examiner does not discuss the absent
examiner's opinions or conclusions, and absent examiner's report is not admitted into
evidence).

Thereafter, the State asked Pay specific questions about the scans and how he
interpreted them. In other words, Pay's personal conclusions were based on his synthesis
of the available information, utilizing his expertise in the field.

81
 The more problematic statements occur later in Pay's testimony. Specifically, the
State's compound question asking whether Pay had conferred with colleagues and then
whether "there [is] a conclusion as to the function of Jonathan Carr's brain." At that point,
there was an objection to the introduction of other's opinions, but the objection was
overruled. Pay was then asked if the "consensus" was that the brain in the scans was
"normal." Pay agreed with that conclusion. He then confirmed that neither he nor any of
his colleagues had a "quarrel" with that conclusion. Pay answered similar questions in a
similar manner for R. Carr's scans.

But this testimony added nothing substantive to what the jury already heard. It
merely added weight to that evidence. It is speculative to suggest this testimony added
substantial weight to his opinion given the extraordinarily vague reference to the other
experts Pay consulted. And such speculation is unrealistic given that the defense's own
expert conceded the PET scans were not reliable tools to predict or explain criminal
behavior.

Although hearsay testimony about a colleague's opinion and conclusion may
violate the Confrontation Clause in some instances, here Pay offered an independent
opinion and interpretation of the PET scans based on his synthesis of the evidence.
Accordingly, Pay was not merely a conduit for the expert opinions of others. See Rector
v. State, 285 Ga. 714, 715, 681 S.E.2d 157 (2009) (holding Confrontation Clause not
violated when toxicologist who testified at trial had reviewed the work of the doctor who
had originally prepared the report and reached the same conclusion that the victim's blood
sample tested negative for cocaine; "[r]ather than being a mere conduit for [the doctor's]
findings, [the toxicologist] reviewed the data and testing procedures to determine the
accuracy of [the] report. An expert may base [his] opinions on data gathered by others.");
People v. McAdams, 170 A.D.3d 549, 550, 94 N.Y.S.3d 841 (expert was not merely a
conduit for conclusions of other experts where testimony demonstrated she conducted her

82
own independent analysis of the raw data to make DNA comparison opinion), leave to
appeal denied 33 N.Y.3d 1033 (2019); State v. Griep, 361 Wis. 2d 657, 682, 863 N.W.2d
567 (2015) (If the expert witness reviewed data created by the nontestifying analyst and
formed an independent opinion, the expert's testimony does not violate the Confrontation
Clause.).

In sum, although we assume the Confrontation Clause applied to Pay's testimony,
his vague assertions that other experts agreed with him did not transform Pay into a mere
conduit for the opinions of others. Thus, his testimony did not violate defendants' rights
under the Confrontation Clause.

H. P8—Denial of Surrebuttal Testimony

In its earlier decision, this court determined the district judge abused his discretion
in denying a continuance so that the defense's mitigation expert witness, Preston, could
be present during Pay's rebuttal testimony and then testify in surrebuttal. We held the
district court relied on a mistaken view that Preston could testify in surrebuttal only if he
had something new to say in response to Pay's critique of his work. R. Carr, 300 Kan. at
296-98. We said:

"It is hard to imagine a situation in which the allowance of surrebuttal would be more
sensible and its denial more arbitrary. Judge Clark also abused his discretion because no
reasonable person presiding over a death penalty case that had been in court for more
than 2 months would have agreed with his decision to disallow surrebuttal requiring a
delay of, at most, a couple of hours." 300 Kan. at 298.

Under the law of the case, the question of error is settled, so we must now consider
whether it was harmless.

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 J. Carr argues the State, through Pay's testimony, was allowed to gut a major
component of his mitigation case immediately before the penalty phase closed, and the
district court deprived him of the right to rehabilitate his expert, Preston. He claims this
significantly impaired his right to a fair trial. Therefore, J. Carr argues, the constitutional
harmless error test applies. We are unpersuaded by this argument.

The error—Judge Clark's abuse of discretion—arose out of his misunderstanding
of state evidentiary law, and it was labeled arbitrary under our state law standard for
analyzing abuse of discretion claims. See Ward, 292 Kan. at 550 (setting out three ways
discretion may be abused [citing State v. Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1
(2010)]); State v. Martin, 237 Kan. 285, 291-92, 699 P.2d 486 (1985) (setting out state
law governing rebuttal). That said, we recognize an error arising out of state law may
nevertheless implicate a criminal defendant's federal due process right to a fair trial. See
State v. Sherman, 305 Kan. 88, 98, 378 P.3d 1060 (2016) (recognizing prosecutorial error
may violate federal constitutional due process right).

Regardless, we conclude the district court's refusal to let Preston testify in
surrebuttal was harmless under either standard. The district court gave defense counsel an
opportunity to interview Pay before cross-examination, and defense counsel effectively
cross-examined Pay on issues relevant to Preston's credibility. Moreover, Preston's
opinion was limited to his interpretation of the PET scans, and he readily acknowledged
these scans were not reliable tools to predict criminal behavior. In the end, the
defendants' mitigation cases were not materially impacted by Pay's testimony and the
district court's error was harmless beyond reasonable doubt.

84
 I. P9—Sentencing on Noncapital Convictions

Defendants requested the district court instruct the jury on the number of years
defendants would be required to serve in prison if not sentenced to death. The court
informed the jury the defendants would not be eligible for parole for between 50 and 268
years. On appeal, R. Carr argued the district court's failure to communicate the specific
term of incarceration under an alternative sentence violated his Eighth and Fourteenth
Amendment rights and section 9 of the Kansas Constitution Bill of Rights. R. Carr, 300
Kan. at 298-99.

In its previous decision, our court unanimously concluded the Constitution did not
demand more precision in the district court's instruction. 300 Kan. at 301. We adopt this
holding under the law of the case.

However, the court also acknowledged that Kleypas I required the district court,
upon request, to instruct a jury on the number of years a defendant would be required to
serve in prison if not sentenced to death, including the possible prison terms for each
noncapital charge and the possibility the sentences could be served either consecutively
or concurrently. In R. Carr's case, we concluded the instruction deviated from the
Kleypas I requirements in failing to specify the possible prison terms for each noncapital
charge and failing to inform jurors that the judge would decide whether such sentences
would run consecutive or concurrent. But we did not regard this technical error as
particularly serious. 300 Kan. at 302. The parties have not submitted additional argument
on this issue.

To the extent these deviations constitute error, it was error under state law.
Accordingly, to hold the error harmless we must be persuaded there is no reasonable
probability the error affected the jury's ultimate conclusion regarding the weight of the

85
aggravating and mitigating circumstances, i.e., the death sentence verdict. See Ward, 292
Kan. at 565.

As explained in our earlier decision, the court informed the jury about the shortest
sentence possible in lieu of death, and R. Carr's counsel was able to argue a term of
imprisonment was sufficient to protect the public. R. Carr was not deprived of the
opportunity to argue this mitigating factor. R. Carr, 300 Kan. at 300-01. To the extent the
district court erred, there is no reasonable probability such error alone affected the jury's
verdict.

J. P11—"The Crime" in Aggravating Circumstances Instruction

Penalty phase Instruction No. 5 told the jury it could find aggravating
circumstances existed if defendants committed "the crime" for monetary gain, to evade
arrest, or in a heinous, atrocious, or cruel manner. R. Carr argues the phrase "the crime"
allowed the jury to rely on his conviction of a crime other than capital murder to find the
existence of an aggravating circumstance. This claim of jury instruction error was raised
for the first time on appeal. In its earlier decision, this court addressed the claim for
purposes of providing direction on remand but did not resolve the challenge. See 300
Kan. at 306.

As previously noted, we apply a four-step analysis to review jury instruction
challenges. We first consider the reviewability of the issue and then determine whether
the instruction was legally and factually appropriate. If we conclude there is error, we
turn to reversibility in the final step. Plummer, 295 Kan. at 163. Where, as here, the
defendant fails to raise the instruction issue at the penalty phase trial, the clearly
erroneous standard applies to the reversibility inquiry. State v. Kleypas, 305 Kan. 224,
306, 382 P.3d 373 (2016) (Kleypas II).

86
 J. Carr claims this court, in its previous decision, determined the instruction was
erroneous. We do not agree. While this court suggested it may be inadvisable to use the
phrase "the crime" in lieu of "capital murder" when examining the instruction in
isolation, it did not squarely address and reach a holding on the question of error. R. Carr,
300 Kan. at 306.

To the contrary, we hold the instructions, read together as a whole, were legally
appropriate. Instruction No. 5 defined the four aggravating circumstances advanced by
the State in the penalty phase, including that "the crime" was committed for monetary
gain, to evade arrest, or in a heinous, atrocious, or cruel manner. This instruction is
patterned after language the Legislature used to define aggravating circumstances under
K.S.A. 21-4636. See State v. Robinson, 303 Kan. 11, 332-33, 363 P.3d 875 (2015)
(finding penalty phase instruction based on the language of the statute was legally
appropriate), disapproved of on other grounds by Cheever II, 306 Kan. 760.

Additionally, in his remarks introducing these instructions to the jury, the district
judge clarified:

"As you know, our focus here is on the first four counts, those are the capital murder
counts.

"It is the responsibility of the jury to decide the proper sentence for the individual
defendants in those four counts. . . . It is my responsibility to decide on the proper
sentence for the individual defendant on all other counts in which you returned a verdict
of guilty."

Consistent with these remarks, Instruction No. 1 informed jurors that the sentencing
proceeding was being conducted because the defendants had been found "guilty of capital
murder." In Instruction No. 9, the trial judge instructed the jury to sign the appropriate

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verdict form that coincided with its sentencing decision. This instruction clarified that
jurors had "been provided verdict forms which provide for three alternative verdicts in
each of the four counts of Capital Murder." (Emphasis added.) In turn, each verdict form
explicitly referenced the capital murder counts and made no mention of any other
charged offenses.

Viewed together, the jury instructions made clear "the crime" in question was
capital murder. See State v. Williams, 308 Kan. 1439, 1453, 430 P.3d 448 (2018) (stating
general rule that jury instructions must be considered as a whole, with no instruction
considered in isolation). Accordingly, we find no error.

K. P12—Instruction on the Role of Mercy

R. Carr argued the district court erroneously instructed the jury that "'[t]he
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.'" R. Carr, 300 Kan. at 307. In its earlier decision, the court "adhere[d] to [its]
precedent rejecting the argument that equating mercy to a mitigating factor is error at all."
300 Kan. at 307.

The parties offer no basis to revisit this previous determination or the underlying
precedent supporting it. Under the law of the case, we find no error.

L. P13—Verdict Forms Instruction

The district court provided the jury with three verdict forms, each encompassing
one of three possible verdicts: unanimously recommending death; unanimously finding
no aggravators existed; or failing to unanimously agree either that aggravators existed or

88
upon a death verdict. Instruction No. 10 explained how to use those forms. The third
paragraph of Instruction No. 10 was intended to correspond to Verdict Form (3) if jurors
arrived at the third possible verdict option, but a disparity existed between the instruction
and the verdict form. Neither defendant objected to the instruction at trial.

J. Carr raised this issue in his separate appeal, and we noticed it in our earlier
decision as an unassigned error for R. Carr under K.S.A. 2020 Supp. 21-6619(b). We
follow that route to the merits here as well.

As the court decided in its previous opinion, the verdict forms provided the proper
standard under the controlling law at the time. See Kleypas II, 305 Kan. at 293-94
(discussing interpretation history of K.S.A. 21-4624). But Instruction No. 10 garbled this
standard by introducing an extra "not" into the sentence: it instructed the jury to reject
the death penalty if "one or more jurors is not persuaded beyond a reasonable doubt that
aggravating circumstances . . . do not outweigh mitigating circumstances . . . ." R. Carr,
300 Kan. at 310-11. Because the instruction's language conflicted with the law, as
correctly stated in the verdict form, there was error. 300 Kan. at 311.

As previously noted, the court applies the clearly erroneous standard to
unpreserved instructional error in capital sentencing proceedings. Kleypas II, 305 Kan. at
302. We now consider whether this instructional error standing alone is clearly erroneous.

The State cites no additional authority but characterizes the error as "nuanced" and
one "not readily noticeable." The State contends the error was "harmless under any test,"
yet asserts there was "no reasonable likelihood that the jury applied Instruction 10 in a
way that prevented consideration of constitutionally relevant evidence." J. Carr asserts
the discrepancy within the instruction is akin to structural error that compels the vacation
of his capital sentence.

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 We reject J. Carr's characterization of the error and hold that the clearly erroneous
standard applies but is unmet. The jury used Verdict Form (1) on all counts, meaning it
unanimously determined beyond reasonable doubt that aggravating circumstances existed
and outweighed mitigating circumstances. On this record, we are not firmly convinced
the error in Instruction No. 10 played any role in the jury's sentencing determination—
much less that it "would have reached a different verdict had the instruction error not
occurred." 305 Kan. at 302.

M. P14—Defendant's Age at the Time of the Capital Crime

The district court did not instruct the jury to find R. Carr and J. Carr were at least
18 years old at the time of the murders. This was error. See State v. Cheever, 295 Kan.
229, 265, 284 P.3d 1007 (2012) (Cheever I) (fact defendant was at least 18 years old at
time of capital crime necessary to subject defendant to death penalty, within scope of
Sixth Amendment protection), vacated and remanded 571 U.S. 87, 134 S. Ct. 596, 187 L.
Ed. 2d 519 (2013). Such error is subject to harmless error analysis. See Cheever II, 306
Kan. at 796. "When a reviewing court concludes beyond a reasonable doubt that the
omitted element was uncontested and supported by overwhelming evidence, such that the
jury verdict would have been the same absent the error, the erroneous instruction is
properly found to be harmless." State v. Reyna, 290 Kan. 666, Syl. ¶ 10, 234 P.3d 761
(2010).

The undisputed evidence at trial established that R. Carr was 23 years old when
the capital crimes occurred. A Wichita police officer, R. Carr's family members, and his
expert witnesses provided testimony from which his age at the time of the crimes could
be determined. Likewise, testimony concerning J. Carr from his mother and sister, as well
as an expert witness, established he was over the age of 18 when the crime occurred.

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 The omitted element was uncontested and supported by overwhelming evidence.
We conclude beyond a reasonable doubt the jury verdict would have been the same
absent the error. See Cheever II, 306 Kan. at 796 ("Because the record did not contain
evidence that could rationally lead a jury to find that Cheever was under the age of 18 at
the time of the offense, any error in failing to have the jury find his age was harmless.").

N. P15—The Requested No-Adverse-Inference Instruction

During the penalty-phase instructions conference, R. Carr's counsel orally
requested PIK Crim. 3d 52.13. It provides: "A defendant in a criminal trial has a
constitutional right not to be compelled to testify. You must not draw any inference of
guilt from the fact that the defendant did not testify, and you must not consider this fact in
arriving at your verdict." Counsel argued this instruction applied in the penalty phase
because R. Carr did not testify. J. Carr's counsel objected to this instruction. The district
court did not give the instruction.

Any error arising from that decision was invited by J. Carr. See State v. Sasser,
305 Kan. 1231, 1235, 391 P.3d 698 (2017) (defendant cannot complain on appeal about a
claimed error that was invited). Therefore, this issue applies only in R. Carr's separate
appeal.

In its earlier decision, our court acknowledged the United States Supreme Court
has held that a rule requiring a no-adverse-inference instruction on request is not clearly
established by its precedent. See White v. Woodall, 572 U.S. 415, 420-21, 134 S. Ct.
1697, 188 L. Ed. 2d 698 (2014) (state court's refusal to give no-adverse-inference
instruction did not warrant federal habeas relief under Antiterrorism and Effective Death
Penalty Act of 1996; Act requires showing of unreasonable application of Supreme Court

91
precedent; discussing earlier cases holding court may not draw adverse inference from
defendant's silence when determining facts about crime that bear on severity of sentence).
But we also recognized "[t]he giving of such an instruction, if requested in a penalty
phase, has been required in at least three of our sister jurisdictions and has been described
as the wisest course in a fourth." R. Carr, 300 Kan. at 312 (citing State v. Storey, 986
S.W.2d 462, 463-64 [Mo.1999] [en banc]; State v. Munn, 56 S.W.3d 486, 501-02 [Tenn.
2001]; Burns v. State, 699 So. 2d 646, 651 [Fla. 1997]; State v. Arther, 290 S.C. 291, 298,
350 S.E.2d 187 [1986]). But see White v. Commonwealth, 544 S.W.3d 125, 146-47
(Ky. 2017) (holding no error when prosecutor argued during penalty phase proceedings
that jury "'never heard one word or witnessed one action of any remorse from the
defendant'" because argument germane to sentencing and, in court's view, Woodall Court
held instruction not required during penalty phase).

Our court did not reach the merits of this challenge because it was unlikely to arise
on the anticipated remand. Now, the merits are squarely before us. The issue is subject to
the traditional legal standard applied to preserved instructional issues, as set out in
Plummer, 295 Kan. 156, Syl. ¶ 1 (appellate review of instructional issues first considers
reviewability; next determines de novo whether instruction legally appropriate; then
whether instruction supported by evidence viewed in light most favorable to defendant or
requesting party; and, finally, whether any error was harmless).

Whether the Fifth Amendment to the United States Constitution compels a district
court to provide a requested no-adverse-inference instruction during the penalty phase of
a capital trial remains an open question that the United States Supreme Court has yet to
resolve. And persuasive authority from other state and federal courts remains divided.
Regardless, we need not answer this open question to resolve R. Carr's challenge because
the instruction he proffered was not legally appropriate. Thus, the district court's failure
to give it was not error.

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 R. Carr's requested instruction would have informed the jury, "You must not draw
any inference of guilt from the fact that the defendant did not testify, and you must not
consider this fact in arriving at your verdict." (Emphasis added.) Although an appropriate
guilt phase instruction, this language is inappropriate in the penalty phase. A defendant's
guilt during the sentencing phase of a capital trial has already been established, mooting
any inference—positive or negative—a juror might make about the defendant's silence
during the penalty phase. In essence, such an instruction would be an oblique and
confusing invocation of the notion of residual doubt.

Even those courts that have found error in the failure to give a sentencing phase
no-adverse-inference instruction have endorsed a modified guilt phase instruction that
removes any mention of inferences of guilt. See Storey, 986 S.W.2d at 463 (requested
instruction: "'Under the law, a defendant has the right not to testify. No presumption may
be raised and no inference of any kind may be drawn from the fact that the defendant did
not testify.'"); Burns, 699 So. 2d at 651 (requested instruction: "'A defendant in a
criminal case has a constitutional right not to testify at any stage of the proceedings. You
must not draw any inference from the fact that a defendant does not testify.'").

Having concluded that R. Carr's requested instruction was not legally appropriate,
we need not address harmlessness. But we note that the absence of a no-adverse-
inference instruction in any form would have been harmless error, if it was error at all.

Were we to apply the Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L.
Ed. 2d 705 (1967), harmless error standard to the facts before us, we are convinced there
is no reasonable possibility the omitted instruction affected the jury's ultimate conclusion
regarding the weight of the aggravating and mitigating circumstances, i.e., the death
sentence verdict. Based on the amount and quality of guilt-phase evidence, which the

93
State relied on to support aggravating circumstances during the penalty phase, there is no
reasonable possibility jurors made adverse inferences from R. Carr's silence which then
contributed to the jury's finding that the aggravating circumstances were proved beyond a
reasonable doubt.

Nor does the record, viewed in its entirety, lend any support to the conclusion that
the jury made inferences from R. Carr's silence that adversely impacted its consideration
of the mitigation evidence. During the penalty phase, both defendants were allowed to
present a complete presentation of their mitigation theories. Defendants offered evidence
of trauma they experienced during their childhoods, head injuries, suicide attempts, and
other traumatic events in their lives. Jurors were properly instructed on the definition of
mitigating circumstances and informed they could consider sympathy for a defendant and
that the appropriateness of exercising mercy can itself be a mitigating factor. The district
court clarified that each juror could consider as a mitigating circumstance any factor he or
she found to be a basis for imposing a sentence less than death. The instructions also
made clear jurors need not be unanimous as to which factors each deems to be mitigating
in arriving at his or her sentencing decision. See State v. Race, 293 Kan. 69, 77, 259 P.3d
707 (2011) ("We generally presume jurors follow the instructions given them in the
district court."). Given this record, any claim that the jury might have drawn improper,
adverse inferences from R. Carr's decision not to testify is, at best, purely speculative.

For these reasons, we hold the district court did not err in declining the instruction
R. Carr proffered, and even if that decision could be construed as error, it was harmless.

O. P16—Capital Punishment for Aider and Abettor Under K.S.A. 21-3205

For the reasons stated in the court's previous decision, we do not reach the merits
of this claim. R. Carr, 300 Kan. at 257, 313.

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 P. P17—Capital Punishment for Aider and Abettor Under Section 9

For the reasons stated in the court's previous decision, we do not reach the merits
of this claim. 300 Kan. at 257, 313-14.

Q. P18—Prosecutorial Error

In their original appellate briefs, R. Carr and J. Carr alleged numerous instances
of prosecutorial error and argued them under the framework established in State v. Tosh,
278 Kan. 83, 91 P.3d 1204 (2004), overruled by Sherman, 305 Kan. 88 (2016). Since
then, that framework was refashioned in Sherman. 305 Kan. at 107. In Kleypas II, this
court first applied Sherman to a capital penalty-phase trial. Kleypas II, 305 Kan. at 316-
24. But, because the parties in Kleypas II briefed the issue under Tosh and oral argument
occurred before our Sherman decision, we applied both frameworks to the prosecutorial
error claims. Here, the parties addressed Sherman in their supplemental briefs and at oral
argument. Consequently, we apply only the Sherman analysis.

Sherman dictates a two-step process. Under the first step, we consider whether
prosecutorial error occurred by determining "whether the prosecutorial acts complained
of fall outside the wide latitude afforded prosecutors to conduct the State's case and
attempt to obtain a conviction in a manner that does not offend the defendant's
constitutional right to a fair trial." Sherman, 305 Kan. at 109; see Kleypas II, 305 Kan.
at 316. If error is found, we advance to the second step and determine whether the error
prejudiced the defendant's due process right to a fair trial. Kleypas II, 305 Kan. at 316;
Sherman, 305 Kan. 88, Syl. ¶¶ 6-7.

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 In evaluating prejudice, we apply the constitutional harmlessness test in Chapman,
386 U.S. at 24. Although we continue to acknowledge the K.S.A. 2020 Supp. 60-261
statutory harmlessness test also applies, when analyzing both constitutional and
nonconstitutional error we need only address the more demanding federal constitutional
error standard. See Sherman, 305 Kan. 88, Syl. ¶ 9. Under that standard, prosecutorial
error is harmless if the State demonstrates beyond a reasonable doubt the error
complained of did not affect the trial's outcome in light of the entire record, i.e., when
there is no reasonable possibility the error contributed to the verdict. 305 Kan. 88,
Syl. ¶ 8.

We are also mindful of the United State Supreme Court's discussion of the "subtle
difference" in the way harmlessness of prosecutorial error should be evaluated in death
penalty cases. The overwhelming nature of evidence is to be considered, but its impact is
limited. To the extent there was constitutional error, the question is not what effect the
error might generally be expected to have upon a reasonable jury but what effect it had
upon the actual verdict in the case at hand.

"'The inquiry, in other words, is not whether, in a trial that occurred without the error, a
[verdict for death] would surely have been rendered, but whether the [death verdict]
actually rendered in this trial was surely unattributable to the error.' [Sullivan v.
Louisiana,] 508 U.S. [275,] 279 [(1993)]." Kleypas II, 305 Kan. at 274.

Consistent with how we have described the specific penalty phase Chapman
inquiry elsewhere in this decision, prosecutorial error in the penalty phase of a capital
trial is harmless when there is no reasonable possibility the error affected the jury's
ultimate conclusion regarding the weight of the aggravating and mitigating
circumstances, i.e., the death sentence verdict. See Kleypas II, 305 Kan. at 316. And
if more than one prosecutorial error occurred, we consider the net prejudicial effect of
those errors using the same Chapman inquiry applied to the individual errors.

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 Both R. Carr and J. Carr quote extensively from the record and categorize their
challenges, sometimes placing a prosecutor's statement in more than one category. Many,
but not all, of the categories overlap. In addition, J. Carr challenges the district court's
failure to grant his request for a mistrial after one alleged prosecutorial error. He bases a
constitutional due process complaint on another.

We have reordered and grouped these error claims for clarity. We isolate those
applying only to J. Carr and address them in our separate decision in his case filed this
day. The remaining claims apply to both defendants, and we consider them potential
errors in both appeals regardless of who originally raised them. See K.S.A. 2020 Supp.
21-6619(b). Although we do not repeat every quote or allegation raised, we have
thoroughly reviewed each.

1. Arguments and Witness Examinations Addressing Mitigating
Circumstances

Both defendants allege the State misstated the law on mitigation and discouraged
individualized sentencing determinations. This was accomplished, they say, by
prosecutorial arguments and conduct that deterred the jury from considering mitigating
evidence and suggested the defendants did not deserve mercy. They also allege the State
improperly denigrated and ridiculed their mitigating evidence. Defendants further
challenge a prosecutor's statement that, in their view, suggested impeachment of Preston
and undermined all mitigation evidence. They also contend the prosecutor expressed
personal opinions regarding the credibility of defense mitigation experts. And, finally,
they argue the prosecutor improperly denigrated the concept of mercy.

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 a. The Prosecutors Did Not Discourage Consideration of
Mitigating Evidence or Suggest Defendants Did Not Deserve
Mitigation

In Lockett the United States Supreme Court held that the Eighth Amendment
guarantees a capital defendant a right to an individualized sentencing determination,
meaning the sentencer may not 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." 438 U.S.
at 604. It does not matter "'whether the barrier to the sentencer's consideration of all
mitigating evidence is interposed by statute,' by a trial court's evidentiary ruling, by jury
instructions, or by prosecutorial argument." Cheever I, 295 Kan. at 269 (quoting Mills v.
Maryland, 486 U.S. 367, 375, 108 S. Ct. 1860, 100 L. Ed. 2d 384 [1988]); see also
Abdul-Kabir v. Quarterman, 550 U.S. 233, 259 n.21, 127 S. Ct. 1654, 167 L. Ed. 2d 585
(2007) (recognizing prosecutorial argument that prohibits a jury from considering
relevant mitigating evidence can violate the Eighth Amendment).

Then, in Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1
(1982), the United States Supreme Court vacated a death sentence when the district judge
refused to consider certain evidence in mitigation because, in the judge's view, it did not
excuse the crime. The United States Supreme Court found the exclusion impermissible:

"Just as the State may not by statute preclude the sentencer from considering any
mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any
relevant mitigating evidence. In this instance, it was as if the trial judge had instructed a
jury to disregard the mitigating evidence Eddings proffered on his behalf. The sentencer,
and the Court of Criminal Appeals on review, may determine the weight to be given
relevant mitigating evidence. But they may not give it no weight by excluding such
evidence from their consideration." 455 U.S. at 113-15.

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 Eddings established that a capital sentencing jury must consider all relevant
mitigating evidence, even if the evidence did not suggest "an absence of responsibility for
the crime of murder." 455 U.S. at 116; see Skipper v. South Carolina, 476 U.S. 1, 4-5,
106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986) (vacating death sentence because trial court
refused to allow defendant to present testimony regarding his conduct while in jail
awaiting trial, from which jury could have drawn favorable inferences about his character
and probable future conduct if sentenced to life in prison; "[a]lthough it is true that any
such inferences would not relate specifically to petitioner's culpability for the crime he
committed, . . . there is no question but that such inferences would be 'mitigating' in the
sense that they might serve 'as a basis for a sentence less than death'").

Kleypas I endorsed these principles from Lockett, Eddings, and Skipper. It
explained these decisions "make it clear that the sentencer must be allowed to consider all
relevant mitigating evidence and that such evidence need not excuse or justify the crime
or in fact relate to the defendant's culpability as long as it serves as a basis for a sentence
less than death." Kleypas I, 272 Kan. at 1102. At the same time, the State has a
competing interest in challenging whether a circumstance is mitigating at all and to
contest the weight the jury should give to a mitigating circumstance. 272 Kan. at 1103
("[I]t is proper for a prosecutor to argue that certain circumstances not be considered as
mitigating circumstances."); cf. Tuilaepa, 512 U.S. at 976-77 (discussing "dilemma"
posed to sentencer when considering defendant's age at time of crime; noting competing
arguments from prosecution and defense "bring perspective to a problem, and thus serve
to promote a more reasoned decision").

To strike an appropriate balance, Kleypas I identified the following standard for
challenging mitigation evidence consistent with the Eighth Amendment:

"[I]t is improper for a prosecutor to argue that certain circumstances should not be
considered as mitigating circumstances because they do not excuse or justify the crime.

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 'Mitigating circumstances are those which in fairness may be considered as extenuating
or reducing the degree of moral culpability or blame or which justify a sentence of less
than death, even though they do not justify or excuse the offense.' A prosecutor who
argues that mitigating circumstances must excuse or justify the crime improperly states
the law. [Citation omitted.]" 272 Kan. at 1103.

In Cheever I, this court further clarified that a Lockett-based constitutional violation
occurs only when the State "'"cut[s] off in an absolute manner"' the sentencer's
consideration of mitigating evidence." 295 Kan. at 270 (citing Kleypas I, 272 Kan. at
1074).

With this framework in mind, we turn to the alleged errors. During closing
argument, after a prosecutor referenced the district court's aggravating circumstances
instruction, she began her mitigation discussion:

"And the question is what mitigates punishment? Something for the jury to
decide. What is it that should lessen or alleviate or diminish or decrease the responsibility
of Jonathan and Reginald Carr for the punishment that fits this crime that's set forth by
the laws of the State of Kansas. This isn't something that was made up yesterday. This is
the law. And when you think about mitigation, think about mitigation of the execution of
[H.M.] and [A.S.] and [B.H.] and [J.B.]. Think about no PowerPoints in that field. There
were no psychologists debating the issues. There weren't any brain scans that were done
before they were executed. Judge Clark wasn't there. No prosecutors. No defense. There
wasn't any witness chair that was set up in the snow where family members of [B.H.] and
[J.B.], and [A.S.] and [H.M.] could come and say, [']Show mercy to my child. She has led
a good and exemplary life.['] There was no person from [J.B.'s] family to say, [']Please,
spare this punishment, show mercy.['] There wasn't any witness called for [A.S.]. There
wasn't any witness called for [B.H.] or [A.S.] or [H.M.]. There was no consideration of
mitigation for the execution, their punishment that occurred on that field. And there
wasn't any play-by-play analysis. And the only reason that we know what we know today
is because there was one survivor, certainly not by plan or design of Reginald Carr or
Jonathan Carr."

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 R. Carr asserts the prosecutor was arguing he had no right to offer mitigating
evidence and, rather than consider it, the jury should be angry and insulted. J. Carr argues
this passage "implore[d] the jury not to consider any mitigating circumstances relating to
the character and record of the defendants because the victims did not have a chance to
have their characters and records considered in mitigation." The State contends this was a
proper appeal for a just sentence.

Reasonable minds could probably differ on whether this rises to prosecutorial
error. On the one hand, there is a theme implicit in this argument that the jury should not
even consider mitigators because the defendants denied that same opportunity to their
victims. So construed, that argument would be improper.

But this court has acknowledged that the State has an interest in challenging the
defendant's mitigation case. Kleypas I, 272 Kan. at 1103. Here, in the quoted passage's
first two sentences, the prosecutor properly informed the jury it ultimately would decide
what, if any, circumstance, qualified as valid mitigation. The latter portion of the
argument questions why the jury should show mercy or decide a circumstance is
mitigating (particularly in light of the weight of the State's aggravating circumstances)
when the defendants did not show mercy. As discussed below, this court has held a
prosecutor may properly argue that a jury should show a perpetrator the same degree of
mercy showed to a victim. The prosecutor's argument here makes a similar appeal.

Furthermore, the State cites other jurisdictions in which similar statements were
considered legitimate and proper appeals to the jury for justice. For example, in Gentry v.
State, 689 So. 2d 894 (Ala. Crim. App. 1994), rev'd on other grounds 689 So. 2d 916
(Ala. 1996), the court held that similar themes constituted legitimate argument:

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 "The appellant contends that the following comments by the prosecutor in
closing argument constituted an improper appeal to the jury to have sympathy for the
victim: '[n]obody went out and empaneled a jury for Kim Hill'; '[y]ou can look at Ward
Gentry, but you cannot look at Kim Hill'; 'nobody went out and got a judge for Kim';
'nobody went out and got two lawyers for Kim'; and '[h]e was her judge, and her jury, and
her executioner.' He argues that these comments 'impermissibly influenced the jury to
disregard [its] legal duties and render a guilty verdict because of [its] sympathy for the
deceased.' We do not agree. We view the comments as a call for justice, not sympathy,
and, thus conclude that they are within the latitude allowed prosecutors in their
exhortation to the jury to discharge its duties. The comment that Gentry was 'her judge,
and her jury, and her executioner' was the prosecutor's impression and opinion derived
from the evidence in the case, which he could legitimately argue. [Citations omitted.]"
689 So. 2d at 906.

See also Newton v. State, 78 So. 3d 458, 478-79 (Ala. Crim. App. 2009) (prosecutor's
argument that victim never given opportunity to make case for life is an appropriate
appeal for justice).

These decisions are consistent with Scott, where we held that a prosecutor may
properly argue a defendant is undeserving of mercy, so long as there is no contention the
jury's exercise of mercy is prohibited. 286 Kan. at 116. We follow this authority here and
hold this passage from the prosecution's closing was not error.

R. Carr also argues the State erroneously encouraged the jury to reject his
mitigators because they did not excuse or justify the crimes. He quotes several pages of
the penalty-phase transcript in which the prosecution attempted to discredit mitigation
witnesses on cross-examination by illustrating that the social conditions they testified
to—such as a poor home environment, familial history of mental illness, diminished brain
activity, and damaging social history—did not cause either defendant to commit the
crimes. R. Carr admits there were no objections to the prosecutor's questions but asserts

102
they set the stage for the prosecutor's later, improper argument that other people with
backgrounds similar to the defendants did not commit capital murder, so the jury should
reject these conditions and events as mitigating factors.

Ordinarily, we require objections to a prosecutor's questions to consider whether
they constitute error on appeal. See State v. King, 288 Kan. 333, 349, 204 P.3d 585
(2009). But that preservation rule is relaxed in death penalty cases. See K.S.A. 2020
Supp. 21-6619(b) (court shall consider any errors asserted in review and appeal).

R. Carr takes issue with the prosecutor's questioning of several mitigation
witnesses. He highlights the cross-examination of his mother, Janice Harding, when
the prosecutor asked whether any other family members who grew up with defendants
in a similar environment committed murder. Then, during Preston's voir dire, the
prosecutor challenged his qualification to give an opinion on predictive criminal
behavior, suggesting PET scan interpretation was not a reliable or accepted methodology
in the scientific community to "predict or explain criminal behavior." And, during
Preston's cross-examination, the prosecutor questioned whether PET scans could predict
or explain why a person commits a crime. The prosecutor also attempted to establish
through another mitigation expert, Dr. Thomas Reidy, that Reidy could not reliably
predict criminal behavior through his mode of analysis. And, as with Harding, the
prosecutor inquired whether similarly situated individuals had committed murder. R. Carr
contends this questioning suggested to the jury it could not consider the testimony of
these mitigation witnesses because it did not excuse or justify the crime.

He also challenges the following passages from the State's closing argument,
which, he believes, were founded on this questioning:

• "But you can't continue to blame your parents for things that go wrong in your life.
Around the population of the United States, people get divorced every single day.

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 We try very hard to feed our kids vegetables because they are good for them. I am
sure a lot of kids are holding their nose and eating broccoli but they don't turn out to
be individuals who commit capital murder. Children are disciplined. All right, some
people might not agree with every form of discipline. In fact, you heard Dr. Phyllis
Harding say, [']You know, at my age when I grew up, there was a certain discipline
that was accepted and they carry forward that kind of discipline because that's what
their parents did.[']"

• "They beg one of you for sympathy. They want to get that sympathy by suggesting
that their excuse is to deflect the responsibility. They want to beg you for sympathy
because of that rough childhood. Because of some abuses, which are primarily based
on the evidence, the requirement to eat noodles with Miracle Whip, vegetables, pasta
salad. And to be spanked with a belt while their legs are held down. Is that an insult
to children who have been placed in bathtubs until their whole bodies have been
burned? Is that an insult to the children who have been beaten and bruised on their
whole body by their parents? Is that an insult to children who wished they had a roof
over their head? Is that an insult to children who feel like they are starving in all
parts of the world? To suggest that gives them a license to kill?"

J. Carr also points to several remarks made in closing that he characterizes as
improper for similar reasons. He asserts prosecutors not only told the jury not to consider
any mitigating circumstances but also to disregard defendants' mitigation evidence as
truly mitigating because it could not excuse or justify the crimes or was not causally
related to them. J. Carr places the following comments in this category:

• "And I certainly ask you to reflect on the abilities of these two gentlemen here.
These two individuals, their acts. These were kids who drug their laundry here in
Court. Put their mother on the witness stand, criticized her. Gave her despicable
commentary. . . . But you can't continue to blame your parents for things that go
wrong in your life. Around the population [of the] United States, people get divorced
every single day. We try very hard to feed our kids vegetables because they are good

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 for them. I am sure a lot of kids are holding their nose and eating broccoli but they
don't turn out to be individuals who commit capital murder."

• "[I]t wasn't the system that failed and it wasn't Jani[ce] Harding that failed. It was
the defendants who failed to abide by the law and it was by their choice. We hear all
the time the comment that says guns don't kill people. People kill people. That's
right. And in this case they chose the Lorcin .380 as the messenger and their
message was loud and clear."

• "They want to blame you that perhaps if you follow the law that somehow you are
doing something wrong. Passing blame to Mommas and Daddies, society, and
taking none upon themselves."

• "If [defense counsel] had been at Birchwood, would he be pleased to represent
Jonathan Carr? Sympathetic to a man who tried to kill himself three years before
this, before these acts. Three years before, drank antifreeze like his dogs that
somehow got it. Suggests that this isn't about sympathy. But it is because if you
look—if you look at mitigation, you have to look at what mitigation is defined as,
reducing culpability. Because someone attempted suicide by drinking antifreeze
three years before, three years later."

And, finally, J. Carr claims it was improper for the prosecution to say: "[J. Carr's]
attempted suicide[ ] that he is seeking your sympathy about, did not stop him from
making that choice that day" and "[a]nything that would reduce culpability has not been
presented here." J. Carr describes these statements as "squarely" arguing that mitigating
evidence is limited to evidence legally justifying or excusing the defendant's participation
in the crimes committed.

Our handling of similar claims in Kleypas I, Scott, and Cheever I informs our
analysis of whether the State went too far in tying worthy mitigation to excuse or
justification of the defendants' crimes.

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 In Kleypas I, the prosecutor crossed the line by arguing mitigating circumstances
must excuse or justify the crime:

"During closing argument, the prosecutor made several references to the fact that
Kleypas' claimed mitigating circumstances did not excuse or justify the crime. The
prosecutor first stated that although the defendant claimed brain damage as a mitigator,
the defendant's expert 'couldn't say' that the brain damage caused either C.W.'s murder or
the previous murder of Bessie Lawrence. Defense counsel objected but was overruled.
Next, the prosecutor noted Kleypas' claim of alcohol use as a mitigator and stated: 'A
pint bottle of Canadian Mist did not cause this murder.' Defense counsel did not object to
this statement. Regarding the claimed mitigator that Kleypas did well in prison, the
prosecutor stated: 'Does the fact that he did well in prison make the murder of [the
victim] less severe?' No objection was lodged to this statement. The prosecutor then
referenced Kleypas' claim that his paraphilia was a mitigator, stating: 'The defendant's
paraphilia did not kill [the victim].' There was no objection to this comment. The
prosecutor went on to ask the jury that even if Kleypas had schizophrenia which he
claimed to be a mitigating circumstance, 'Does that lessen what he did?' Defense counsel
did not object to this statement.

"These statements by the prosecutor were clearly improper and reflect a complete
lack of understanding of the concept of mitigating circumstances. By these statements,
the prosecutor argued to the jury that mitigating evidence should not be considered unless
it excused or justified the crime; this was an erroneous standard of law." Kleypas I, 272
Kan. at 1103.

In Scott, the defendant lodged a similar challenge, based on the following
argument:

"'Several of the mitigators cite his mental illness and brain damage. Interestingly
enough, remember something that Dr. Cunningham said. His congenital brain damage is
consistent with other murderers. He tested like a murderer. Is it surprising then that he

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 has these problems? Could anyone who commits two premeditated murders for the
purpose of obtaining things be mentally normal? Does depression or reactive attachment
disorder, any of those things or their treatability reduce Scott's moral culpability for this
crime?

"'His blame, his mental state did not prevent him from committing these two
premeditated murders, did not keep him from placing those kids in danger, did not keep
him from lying to the Sheriff about it.

"'Besides, remember Dr. Cunningham. He described Gavin as a poor historian.
Remember how well this poor historian described the layout of the Brittain residence for
Holtz and Oliver, how he drew it out in excruciating detail. This is a man who is in
command of all of his senses on September 13, 1996. He was in the Brittain home long
enough to commit the layout to memory. He may have mental problems, but they weigh
little compared to the weight of the aggravating circumstances.'" (Emphasis added.) Scott,
286 Kan. at 117.

While acknowledging some statements suggested the defendant's evidence was not
mitigating because it did not excuse or justify the crimes, we held this argument was
proper when viewed in its totality:

"In the case at hand, however, the prosecutor did not argue Scott's mental illness
should not be considered because it did not excuse or justify the crime. Read in context,
the argument was that Scott's mental illness was not as severe as he made it out to be,
because it did not 'prevent' him from committing the crimes. Granted, there is some
suggestion in the statement that Scott's mental illness did not excuse his culpability.
However, taken in context, these statements did not contravene the 'considerable latitude'
prosecutors are allowed in commenting on the evidence." 286 Kan. at 118 (citing Kleypas
I, 272 Kan. at 1084).

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 Finally, in Cheever I, this court examined two penalty-phase closing argument
statements. The first addressed the defendant's claim that drug use in the home mitigated
his culpability:

"'Now, perhaps there was marijuana use at the home. We don't contend there wasn't. But
what it boils down to, ladies and gentlemen, is that a mitigator, is that a mitigator which
is sufficient to outweigh the aggravating factors we put before you? Marijuana use in the
home, that's a bad thing. No question about it. But does that, as [defense counsel] say[s],
excuse what he did? Is that—does that outweigh the aggravating factors? We contend it
does not and it cannot.'" Cheever I, 295 Kan. at 271.

The prosecutor then addressed the defendant's methamphetamine addiction as a
mitigating circumstance:

"'The defendant tells us he was addicted to methamphetamine, and that's the
reason, that's a mitigator. Well, tell that to Robert Sanders 'cause he wasn't on
methamphetamine that night. Now, you've already decided methamphetamine did not
play a role in the capital murder of Matt Samuels. And you should reject it now, too.'"
295 Kan. at 271.

In Cheever I, this court explained that "[t]he difference between the outcomes in
Kleypas [I] and Scott lies in the distinction recognized in Eddings: comments that cut off
in an absolute manner the jury's consideration of certain mitigating evidence run afoul of
Lockett, but comments that the defendant's mitigating evidence is entitled to little or no
weight based on the circumstances of the case are constitutionally permissible." 295 Kan.
at 271 (citing Kleypas I, 272 Kan. at 1074). Applying this Eddings distinction to the
challenged arguments in Cheever I, this court held the prosecutor's argument about drug
use in the home was proper:

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 "Addressing the 'excuse' comment first, we find the comment, considered in
context, was permissible. As with the comments in Scott, there is some suggestion in the
remark that marijuana use in the home did not excuse Cheever's culpability. That remark,
however, was followed with: '[D]oes that outweigh the aggravating factors? We contend
it does not and it cannot.' Viewed in context, the prosecutor's comments did not tell the
jury that to be considered in mitigation, evidence of the marijuana use in the home had
to excuse or justify the crime as a matter of law. Instead, the remarks were directed at
the weight the jury should give that evidence in deciding whether the mitigating
circumstances outweigh the aggravating factors. [Citation omitted.]" Cheever I, 295
Kan. at 272.

We also held the second statement addressing methamphetamine addiction as a mitigator
was appropriate: "Viewed in context, the comment was part of the [prosecutor's]
argument addressing evidence concerning a specific mitigating circumstance: that
Cheever was under the influence of methamphetamine at the time of crime." 295 Kan.
at 272.

When we compare these holdings to the facts here, the prosecutor's challenged
statements are more akin to those in Scott and Cheever I than Kleypas I. As in Scott and
Cheever I, the Eddings distinction is determinative. The prosecutor never argued or
implied the jury could not consider the mitigation evidence unless it excused or justified
the murders. And while the prosecutor questioned whether that mitigation justified the
defendants' conduct, this was consistently argued in the context of whether the
circumstance reduced the defendants' moral culpability or blame in a way that supported
a sentence less than death.

For example, the prosecutor's rhetorical inquiry whether R. Carr's and J. Carr's
upbringing gave them "a license to kill" occurred during a broader argument questioning
whether the defendants' evidence lessened their moral culpability in a way that justified a
sentence other than death. The prosecutor explained:

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 "Mitigating circumstances under the law as you remember are those that reduce
the degree of moral culpability. How has anything that they have said done that? Under
the law, the Legislature said these things may be considered. That they have no
significant history of prior criminal activity. Is that what you heard? That this crime was
committed when the defendants were under the influence of extreme mental or emotional
disturbance. The foundation of all, if any, this brain trauma. The foundation of all their
experts, all the evidence that you heard . . . was based on a manipulated picture, an
altered picture. A picture of a PET scan that does not accurately reflect, does not
accurately reflect their brains and this picture does not accurately reflect who they are.

....

"You heard the evidence regarding what was reviewed. You heard in this penalty
phase much information about hearsay evidence. The bravado that was taken from each
other in order to fulfill the task that allowed them to take all this property from the
[victims]. Their premeditation, their intent. Did they act under the supreme duress, the
stress or substantial domination of another? There's no evidence of that.

"Ask the question regarding their age. They're adult males, ages 20 and 23 when
these offenses were committed. We send individuals into war at 18. Are they
responsible? Are they morally culpable for their acts? In this instance, they have lived
away from home. They were living away from home. They were totally emancipated.
They had individuals repeatedly trying to help them, coaches, teachers, SRS workers, all
this time through this rough childhood that they had, which they ignored, and made their
choices to continue in the acts that they did.

"Is a term of imprisonment sufficient to defend and protect [ ] the people's safety
from the defendants? There is no evidence to suggest it is. In fact, the evidence from the
defense indicates that these individuals have no remorse, care not, opportunistic,
remorseless. How does that defend?"

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 There is a similar theme present in all the challenged statements. Viewed in
context, they reflect the prosecutor's argument that the claimed mitigating circumstances
did not, in fact, lessen their moral culpability or did not do so to the extent they
outweighed the aggravating circumstances, thereby warranting a sentence other than
death. This argument was not error.

We also see no error in the prosecution's cross-examination questions challenging
defendants' evidence. J. Carr argues that while evidence of a tumultuous childhood,
parental absence, physical and sexual abuse and aberration, family history of mental
illness, learning disabilities, and suicide attempts may not excuse or justify the crime, it
was relevant to his moral culpability, which means it was important for the jury to
consider in making an individualized sentencing decision. See Woodson, 428 U.S. at 304
(fundamental respect for humanity underlying Eighth Amendment requires consideration
of character and record of individual offender, circumstances of particular offense as
constitutionally indispensable part of process of inflicting death).

This may be true in general, but while evidence of such matters is relevant to the
jury's decision, it is not mitigating as a matter of law. If a juror believes the evidence, that
juror must then individually determine whether the facts proven are mitigating. Without
question, it is proper for a prosecutor to argue jurors should not consider such facts to be
mitigating. See Cheever I, 295 Kan. 229, Syl. ¶ 19 (permissible for prosecutor to argue,
based on the circumstances of the case, defendant's mitigating evidence is entitled to little
or no weight).

Further, defendants' arguments overlook a crucial point highlighted by the record:
it was the defendants, not the prosecution, who first suggested a relationship between the
crimes and the mitigation evidence by arguing a variety of medical, genetic, familial,
environmental, societal, and situational circumstances correlate to violent behavior. Both

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defendants argued during the penalty-phase proceeding that the "crime was committed
while the defendant was under the influence of extreme mental or emotional disturbance"
and that "[t]he defendant acted under extreme distress or under the substantial domination
of another person."

Mitigation witnesses testified that numerous factors, incidents, and variables
contributed to the defendants' decision to kill the Birchwood victims. For example,
R. Carr's counsel argued the PET scan reviewed by Preston detected brain abnormalities
and that certain brain abnormalities affect behavior. Similarly, Reidy and Cunningham
testified that if certain risk factors were present, they raised the probability or likelihood
of criminal behavior. And, during penalty-phase closing argument, R. Carr's counsel
attempted to draw a causal connection between the evidence advanced in mitigation and
the crimes:

"But you needed to know that because something happened to these kids. Something
happened to them that damaged them to cause them to act this way.

"This is what these doctors were here to tell you about. That's why Dr. Reidy was
here to tell you about this. That's why Dr. [Mitchel] Woltersdorf was here to tell about
that. That's why Dr. Preston came down here and did that PET scan. . . .

....

"We are not making excuses here. We are telling how these kids' lives were
shaped and how they came to make the decisions that resulted in this horrible crime. The
accident Reggie had when he was in West Virginia, on the bicycle, hit his head, had loss
of memory, indicative of brain injury. All the fights he had that [were] too numerous to
mention. Those are all important factors in the development of Reggie's brain. And if you
believe what the doctors tell us, a brain even today is not completely formed. . . .

....

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 "After we have talked about all the bad things that happened in Reggie's life, I
mean, you didn't see any witnesses from the State of Kansas come in here and say I grew
up and I lived next to these guys, they had a wonderful home. Reginald, Sr., and Janis
didn't ever get in any fights, no domestic violence, kids well cared for. You didn't see a
forensic psychologist come in here and say the studies from the Department of Justice
and the Surgeon General's Office and the FBI, they really apply in this particular case
because those are all different. You didn't see anybody come in here and do that. What
you saw is people that really took a look at what is going on in this guy's life and try to
give you some insight on how he got to the field on December 15th of the year 2000 and
how he was able to perpetrate the crimes for which he has been convicted in that horrible
manner." (Emphases added.)

Given this defense strategy, it was neither surprising nor error for the prosecution
to test the extent to which the murders were acts of free will, suggesting the greatest
degree of moral culpability, as opposed to acts attributable in some measure to extreme
mental or emotional disturbance, brain injury, or other circumstances in defendants'
upbringing. Accordingly, the prosecutors' questions and argument were within the
latitude afforded the State and did not constitute error.

b. Prosecutors Did Not Improperly Denigrate and Ridicule
Mitigating Circumstances

R. Carr argues the State repeatedly denigrated and ridiculed his mitigating
evidence and criticized counsel for admitting and relying on it. He points to seven
statements the prosecutor made during closing.

The first comment was addressed above.

"And when you think about mitigation, think about mitigation, think about mitigation of
the execution of [H.M.] and [A.S.] and [B.H.] and [J.B.]. Think about no PowerPoints in

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 that field. There were no psychologists debating the issues. There weren't any brain scans
that were done before they were executed. Judge Clark wasn't there. No prosecutors. No
defense. There wasn't any witness chair that was set up in the snow where family
members of [B.H.] and [J.B.], and [A.S.] and [H.M.] could come and say, [']Show mercy
to my child. She had led a good and exemplary life.['] There was no person from the
[J.B.'s] family to say, [']Please, spare this punishment, show mercy.['] There wasn't any
witness called for [A.S]. There wasn't any witness called for [B.H.] or [A.S.] or [H.M.].
There was no consideration of mitigation for the execution, their punishment that
occurred on that field. And there wasn't any play-by-play analysis."

We concluded above this argument was consistent with Scott, in which we held a
prosecutor may properly argue a defendant does not deserve mercy, so long as there is no
contention the jury's exercise of mercy is prohibited. 286 Kan. at 116. Similarly, we agree
the prosecutor here was within the latitude afforded the State.

The second and third comments responded to R. Carr's and J. Carr's claims that
their dysfunctional home life was a mitigating circumstance and a contributing factor in
their crimes.

• "And it's a tragedy, a tragedy that [their mother] tried to make them responsible by
making them eat vegetables. That's a tragedy. So we have to hear about this today, to
mitigate the punishment in this case. That the death penalty should not be imposed,
Ladies and Gentlemen of the jury, the defendants had to eat broccoli."

• "We are not responsible or we should be given mercy and sympathy because, golly
gee whillikers, look at the miserable childhood that we had."

It is obvious these passages capture sarcasm, and we have been critical of
prosecutorial sarcasm in the past. See State v. Longoria, 301 Kan. 489, 525-26, 343 P.3d
1128 (2015) (sarcasm as rhetorical device discouraged but not disallowed). But these

114
arguments are also based on reasonable inferences that could be drawn from testimony.
They fall within the wide latitude prosecutors are given to discuss the evidence.

The fourth comment alleged to be error is:

"Ladies and Gentlemen of the Jury, when you are disabled, you want to think of yourself
as capable, not disabled. When you think of yourself as someone who is truly, truly
emotionally disturbed, they don't want sympathy. They want to be understood for what
they are trying to do. Whether it was Michael Harding who seemed to be emotionally
disturbed, truly lacking the facility to make life work for him. And it is shameful to try
and throw yourself in a category of individuals who are emotionally disturbed and in
some way less because of this sham. And to rely on this to say excuse me, please, I have
an abnormal brain and therefore, I had a lousy childhood."

Although the prosecutor was not particularly clear, it appears the intention was
to draw an unflattering comparison between defendants, who wished to rely on a
neurological or psychological abnormality as a mitigator, and a hypothetical disabled
person who would be too proud to call attention to such a problem. Had the prosecutor
more effectively communicated this idea, we would share the view this was error, not
because it denigrated or ridiculed mitigation evidence but because it appears to have
relied on at least one fact not in evidence, i.e., the attitudes of another disabled person.
See State v. Carter, 278 Kan. 74, 80, 91 P.3d 1162 (2004) ("'No rule governing oral
argument is more fundamental than that requiring counsel to confine remarks to matters
in evidence.'"). But in this instance, lack of clarity prevents us from labeling this error.

The fifth, sixth, and seventh comments R. Carr challenges as denigrating or
ridiculing his mitigation evidence were:

• "These were kids who drug their laundry here in Court. Put their mother on the
witness stand, criticized her. Gave her despicable commentary. Got into her private

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 possessions. Talked about seeing naked pictures of her. Maybe they weren't meant
for Reginald Carr's eyes."

• "[T]hey even stand here before you here today and of all the blame games that have
been made, they want to blame you. They want to blame you that perhaps if you
follow the law that somehow you are doing something wrong. Passing blame to
Mommas and Daddies, society, and taking none upon themselves."

• "They beg one of you for sympathy. They want to get that sympathy by suggesting
that their excuse is to deflect the responsibility. They want to beg you for sympathy
because of that rough childhood. Because of some abuses, which are primarily based
on the evidence, the requirement to eat noodles with Miracle Whip, vegetables, pasta
salad. And to be spanked with a belt while their legs are held down. Is that an insult
to children who have been placed in bathtubs until their whole bodies have been
burned? Is that an insult to the children who have been beaten and bruised on their
whole body by their parents? Is that an insult to children who wished they had a roof
over their head? Is that an insult to children who feel like they are starving in all
parts of the world? To suggest that gives them a license to kill?"

In a case with so much truly abhorrent behavior to focus upon, it is difficult to
understand why the prosecutor chose to characterize as "despicable" the defendants' use
of information about their mother for mitigation. Capital defendants are entitled to
attempt to persuade the penalty-phase jury that something in their personal history
exerted such a negative influence that they do not deserve to be put to death. This is a
constitutional and statutory right. Eddings, 455 U.S. at 115 (sentencer may not refuse to
consider relevant mitigating evidence, including turbulent family history, beatings by
parent, severe emotional disturbance, as a matter of law); Lockett, 438 U.S. at 604; see
K.S.A. 2020 Supp. 21-6617(c) (evidence in sentencing proceeding shall include matters
relating to any mitigating circumstances).

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 We agree with R. Carr that seasoned prosecutors such as those who tried this case
should be able to avoid expressing disgust for this common and frequently necessary
defense tactic. That said, the prosecutor's one-word departure from a more clinical
recitation of the evidence about potentially harmful behavior by defendants' mother does
not rise to error.

Regarding the prosecutor's comments about the defendants' mitigation case
attempting to shift blame for their crimes, R. Carr relies on Urbin v. State, 714 So. 2d
411, 422 n.14 (Fla. 1998), and Butler v. State, 120 Nev. 879, 898-99, 102 P.3d 71 (2004),
to support his argument for reversible error.

In Urbin, the Florida Supreme Court observed, "The transcript reflects that the
prosecutor improperly denigrated the evidence of mitigation throughout his argument and
repeatedly labeled the mitigation as 'excuses,' employing the pejorative term no less than
eleven times." 714 So. 2d at 422 n.14. It concluded the argument was improper, given the
absence of rebutting evidence. But the court's comments were relegated to a footnote,
compared to other egregious examples of improper argument that received extensive
discussion. Taken together, the errors compelled the court to vacate the death sentence.
714 So. 2d at 422.

In Butler, the prosecutor "used many adjectives and analogies in . . . remarks that
portrayed Butler's presentation of mitigating evidence and defense tactics as a dirty
technique in an attempt to fool and distract the jury, implying that Butler's counsel acted
unethically in his defense." 120 Nev. at 898. The Nevada Supreme Court held this
approach improperly disparaged counsel. The court explained the defendant not only had
a legal right to present the evidence, but his counsel had an ethical duty to present all
evidence in mitigation. The court said: "[P]resentation of mitigating evidence during the
penalty phase is essentially the heart of a defense," and the prosecutor committed

117
misconduct by disparaging defense counsel and defense tactics "through the use of
cleverly crafted rhetoric." 120 Nev. at 898-99. When viewed in conjunction with other
instructional and trial errors, the court could not conclude the prosecutorial misconduct
was harmless. 120 Nev. at 900.

The State urges us to distinguish Urbin and Butler. In Urbin, the State notes the
prosecutor used sarcastic and pejorative terms to describe the mitigating circumstances
evidence continually and demeaned it without ever rebutting it. Here, the State argues,
the prosecution rarely employed cynicism or insult and vigorously challenged the
defendants' evidence. Butler is distinguishable in the State's view because the prosecutor
in this case did not repeatedly challenge opposing counsel's ethics or integrity.

The State also relies on decisions which held a prosecutor committed no error by
describing mitigation as merely an excuse or blame game. For example, in People v.
Rundle, 43 Cal. 4th 76, 195, 180 P.3d 224 (2008), disapproved of on other grounds by
People v. Doolin, 45 Cal. 4th 390, 198 P.3d 11 (2009), the defendant argued the
prosecutor engaged in misconduct by claiming "'the entire defense in this case is to blame
others,' by calling the [mitigation defense theory] 'penalty phase madness,' and by
referring to defendant as a 'snitch' in discussing his assistance to the authorities at the
jail." The court rejected the prosecutorial error claim, saying there was "nothing
deceptive or reprehensible about these comments, and they did not, individually or
cumulatively, improperly denigrate defendant's evidence in mitigation." 43 Cal. 4th at
195; see also People v. Cole, 172 Ill. 2d 85, 112, 665 N.E.2d 1275 (1996) (prosecutor's
brief references to mitigation as "excuse" could not reasonably have prevented jury from
considering evidence).

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 We are persuaded that the infrequency of the "passing blame" comments, the tone
of most of the rhetoric, and the existence of evidence rebutting the mitigation prevent us
from characterizing the prosecutor's arguments as error. The fact these comments did not
cast aspersions on defense counsel's ethics or integrity weighs heavily in our decision.

But we caution that the prosecutor's comparison of the defendants' evidence to
cases of extreme child abuse, if not ameliorated by more temperate, evidence-based
context, at a minimum would have grazed the error line by needlessly injecting
inflammatory material into the argument. See Sherman, 305 Kan. at 117 (argument may
have scuffed outside edge of wide latitude afforded prosecutors); State v. Crawford,
300 Kan. 740, 755, 334 P.3d 311 (2014) (differences in wording can move conclusion
that prosecutor scuffed line of misconduct to conclusion that prosecutor crossed line);
State v. Stevenson, 297 Kan. 49, 55, 298 P.3d 303 (2013) (prosecutor's comments scuffed
misconduct line).

c. The State's Argument that Preston's Impeachment Undermined
All Mitigation Was Properly Supported by the Record

J. Carr argues the prosecutor implied all mitigation evidence should be ignored
based on the State's impeachment of defense expert Preston. During closing, the
prosecutor argued the PET scans and Preston's testimony about them were "hocus pocus"
and "manipulated." And, once aware of these facts, the jury should see the "foundation of
this sympathy and abuse excuse and blame" came "crashing down."

Whether the phrase "hocus pocus" was improper is addressed in the next section
of our prosecutorial error analysis. But the underlying argument, i.e., the State's
impeachment of Preston undermined the whole mitigation case, was properly founded on
reasonable inferences from testimony admitted into evidence. Several defense mitigation

119
experts tied or reconciled their opinions to Preston's findings. And the State's rebuttal
expert, Pay, opined that the PET scans showed both R. Carr and J. Carr had sound brain
function and criticized the methods Preston used to obtain the images. This gave
prosecutors an evidentiary basis to argue that Pay's testimony undercut not only Preston's
testimony but that of the other defense witnesses. We hold there is no error on this basis.

d. Prosecutors Did Not Commit Reversible Error by Expressing
Personal Opinion About the Credibility of Mitigation Experts

As discussed above, Preston concluded the defendants' PET scans evidenced
abnormal, marked deficits in metabolism in the regions of the hippocampus and
amygdala. Pay reviewed those PET scans and testified the images used an atypical color
scale. He also said the scans did not capture the brain's anatomical regions relevant to
Preston's opinion. Pay concluded the scans evidenced normal metabolic functioning, and
Preston's contrary conclusions were based on the manipulated color scale and improper
anatomical alignment. During closing, the prosecutor referenced the competing expert
testimony:

"Yeah, these colored picture[s] are pretty slick. They are. They are really slick.
Better than those old X-ray kinds of things, you know, just black and white. But, you
know, it all depends on who is looking and it all depends on what they are doing with
these documents, these digital pictures. There's no doubt these two guys had PET scans.
And they presented them to you as abnormal. The foundation of their lack of culpability.
We are not responsible or we should be given mercy and sympathy because, golly gee
whillikers, look at the miserable childhood that we had. And look at our brain because
our brains support that I got hit with a BB, or I got hit with the trash can and it may still
be there, oh, look at it.

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 "But when the truth comes out and the doctors come and say, well, you know,
these aren't right. In fact the statement was it was wrong to show you these. Because
these show nothing. The hocus pocus of all of this was not right. It was manipulated. The
color background. The slice where it came from. The coloration from one to the other."

R. Carr and J. Carr argue these statements—particularly the words "manipulated,"
"slick," "hocus pocus," "doctors," and "truth"—constituted the prosecutor's improper
personal opinion on the credibility of Preston and Pay.

Generally, a prosecutor is precluded from offering personal opinions about witness
credibility. State v. Pabst, 268 Kan. 501, 510, 996 P.2d 321 (2000) ("The point of not
allowing a prosecutor to comment on the credibility of a witness is that expressions of
personal opinion by the prosecutor are a form of unsworn, unchecked testimony, not
commentary on the evidence of the case."). We have applied the same rule in capital
sentencing proceedings. Kleypas I, 272 Kan. at 1105 ("A prosecutor should not express
his or her personal belief or opinion as to the truth or falsity of any testimony or evidence
or the guilt of the defendant.").

The prosecutor's use of "manipulated" in reference to the scans was consistent
with Pay's testimony and fell within the wide latitude prosecutors have in discussing the
evidence. Similarly, the use of "slick" to describe the images and the phrase "hocus
pocus" to characterize Preston's methodology do not constitute error. See State v. Pribble,
304 Kan. 824, 835-36, 375 P.3d 966 (2016) (describing defense arguments as "red
herrings," involving "rabbit holes" permissible); State v. Albright, 283 Kan. 418, 429-30,
153 P.3d 497 (2007) (colorful analogies, including "smoke and mirrors," permissible
when discussing evidence, defense theory of case); State v. Duke, 256 Kan. 703, 719-20,
887 P.2d 110 (1994) (prosecutor "may use picturesque language as long as he or she
introduces no facts not disclosed by the evidence"). But see Scott, 286 Kan. at 117
(prosecutor improperly expressed opinion when characterizing defendant's purported

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remorse as "phantom"). The prosecutor's picturesque rhetoric was undergirded by
evidentiary support, which kept the comment within permissible bounds.

We also hold that the use of "doctors" was not error. J. Carr highlights it but does
not explain why it was objectionable. Granted, each person who reviewed the scans with
Pay and to whom the prosecutor was referring may not have been a doctor, but the gist
was that Pay—a doctor—and his colleagues reviewed the scans. That possible slight
overgeneralization does not amount to error.

But the prosecutor's reference to the "truth" in stating "when the truth comes out"
constituted an impermissible expression of opinion that attempted to bolster Pay's
credibility. This was error. Kleypas I, 272 Kan. at 1105. But this isolated instance was
not egregious and appears to be just a clumsy effort to turn a phrase rather than a
definitive statement about what the "truth" of the case was. We are confident this was
harmless standing alone. Kleypas II, 305 Kan. at 316; Sherman, 305 Kan. 88, Syl. ¶¶ 6-8.
In the words of the United States Supreme Court in Sullivan, the death penalty verdict
"actually rendered in this trial was surely unattributable to the error." Sullivan v.
Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993).

e. Prosecutors Did Not Improperly Denigrate the Concept of
"Mercy"

R. Carr and J. Carr argue the prosecutor improperly denigrated the concept of
mercy by making the following argument:

"And, ladies and gentlemen, as [the defendants] sit there, the Court has told
you[,] you can consider sympathy and you can consider mercy for these two defendants.
That's in here. And, Ladies and Gentlemen of the Jury, as District Attorney of this
jurisdiction, I seek the death penalty. And, ladies and gentlemen of this jury, I ask you

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 to show Jonathan and Reginald Carr the same mercy that they showed to [J.B.], and
[H.M.], and [B.H.], and [A.S.]. No mercy."

In Kleypas I, we held a prosecutor may argue that a defendant deserves no mercy
because he or she showed none to the victims, as long as the prosecutor does not argue
the jury is precluded from considering mercy in its sentencing decision:

"In a capital case, it is important for the jury to be able to evaluate whether a
defendant is deserving of mercy. As part of the same concept, however, it is clearly
proper for a prosecutor to argue against the granting of mercy. We hold that it is proper
for the prosecutor to argue that the defendant is not deserving of the jury's mercy because
of the defendant's actions, as long as the prosecutor does not improperly state the law by
arguing to the jury that it is prohibited from granting mercy to the defendant because the
defendant showed none to the victim." Kleypas I, 272 Kan. at 1110-11.

The prosecutor's statement in Kleypas I did not suggest the jury could not apply
mercy and was within the latitude afforded the prosecution. 272 Kan. at 1111. We
reached the same conclusion in Scott when the prosecutor suggested the jury should show
no mercy because the defendant showed none to his victims. We explained:

"At no time did the prosecutor argue the jury was prohibited from showing Scott mercy.
Rather, the prosecutor explicitly told the jury that granting mercy would be an 'act of
grace.' Further, the prosecutor requested that when the jurors were considering Scott's
plea for mercy, they also consider moral culpability. As a result, these comments were
not improper." Scott, 286 Kan. at 116.

R. Carr and J. Carr contend the prosecutor's closing is distinguishable from
Kleypas I because she expressly argued they deserved no mercy rather than merely
implying it. But nothing in Kleypas I or Scott suggests a reasonable basis to distinguish
implicit from explicit arguments when communicating the same message. Instead, these
decisions make clear the argument is proper, provided the prosecutor does not tell jurors

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they cannot consider mercy. The prosecutor's argument here was within the latitude
afforded the State.

2. Arguments Did Not Improperly Inflame Jury's Emotion

J. Carr contends the prosecutor improperly inflamed the jurors' emotions on two
occasions. He argues the prosecutor erroneously: (1) argued the victims would never
have the opportunity to form attachments with future children; and (2) shared an
improper quote minimizing the concept of mitigation. The State argues these comments
were invited by the defense and otherwise proper.

"Generally, a prosecutor has wide latitude in crafting arguments. Nevertheless,
the arguments 'must accurately reflect the evidence, accurately state the law, and cannot
be "intended to inflame the passions or prejudices of the jury or to divert the jury from its
duty to decide the case based on the evidence and the controlling law."'" State v.
Armstrong, 299 Kan. 405, 416, 324 P.3d 1052 (2014).

Regarding the victims' ability to form or maintain personal attachments with
others, the prosecutor said:

"They talk to you—[R. Carr's attorney] talked to you—the audacity to talk [to
you] about the victims and about how Reginald Carr will never be able to form
attachments, never be able to form relationships. [A.S.], [J.B.], [H.M.], and [B.H.] will
form no more attachments. They don't continue their attachment to their fathers, their
mothers, or their siblings, or anyone else for that matter, any future children that they
might have had."

J. Carr classifies this as an impermissible "golden rule" argument that invited
jurors to step into the victims' shoes. But this misses the mark.

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 "A 'golden rule' argument is the suggestion by counsel that jurors should place
themselves in the position of a party, a victim, or the victim's family members. Such
arguments are generally improper and may constitute reversible error. See Walters v.
Hitchcock, 237 Kan. 31, 33, 697 P.2d 847 (1985). The reason 'golden rule' arguments are
not permitted is because they encourage the jury to depart from neutrality and to decide
the case on the improper basis of personal interest and bias." State v. McHenry, 276 Kan.
513, 523, 78 P.3d 403 (2003), disapproved of on other grounds by State v. Gunby, 282
Kan. 39, 144 P.3d 647 (2006).

The prosecutor did not ask the jury to assume the victims' points of view. At most,
this resembled victim impact argument, which is relevant to the jury's sentencing
determination. See Scott, 286 Kan. at 118-19 (no constitutional bar to victim impact
evidence; evidence admissible under K.S.A. 21-4624[c] if relevant to question of
sentence).

Moreover, as the State observes, the statements mirrored and were intended to
respond directly to R. Carr's closing argument, during which defense counsel discussed
what impact a life sentence would have on R. Carr's relationships:

"We are talking about things you need to consider. Reggie is going to be
incarcerated. He will be put in prison basically forever. . . . Any attachment that he gets
with any guards who are going to be supervising him [is] necessarily going to fade away
because nobody works for 50 years. The people he is going to develop his attachment
with will be transferred, will retire, will quit, will go someplace else. His mother will die
while he is in the penitentiary. His father will die while he is in the penitentiary. By the
time he is first eligible to see the parole board, if he gets the minimum sentence he can
possibly get, his oldest son will be older than [defense counsel] over there. That's how
long he is going to be in the penitentiary. He is actually going to be in there forever. He is
never going to be able to walk out and get in his car and drive off somewhere and go visit
friends. Never going to do any of that stuff that he enjoyed for the brief time that he
wasn't incarcerated."

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 In context, the prosecutor's argument merely urged the jury to give little weight to
R. Carr's assertion that he would never form relationships or attachments with others if
sentenced to life imprisonment instead of death. See Scott, 286 Kan. at 120 (statement
that capital murder defendant "destroyed the [victim's] family" permissible in response to
defendant's asserted mitigating circumstance regarding relationships with his family). We
conclude there was no error in this passage.

Second, J. Carr challenges the prosecutor's commentary attributed to a quote from
Dr. Willard Gatlin, who was not a witness. The prosecutor stated:

"I want to read to you something that was said by a doctor in New York. Dr.
Willard Gatlin is a medical doctor, about a murder in New York. And he says this. When
one person kills another, there is an immediate revulsion at the nature of the crime. But in
a time so short as to seem indecent to the members of the personal family, the dead
person ceases to exist as an identifiable person. To those individuals and in the
community who have good will, who have sympathy and empathy and warmth and
compassion, only one of the characters in the drama remains with whom they can
commiserate and that is the defendants. The dead person ceases to exist in our everyday
reality and become part of a historic event. So we turn away from the past toward the
reality because of our natures. And we look at the defendant and sympathize with him.
And when that happens, the defendant usurps the compassion that is justly the victims'.
And they will steal their victim[s'] moral constituency today with you in the same way
that they stole their lives.

"Ladies and gentlemen, don't let that happen."

J. Carr argues the prosecutor's Gatlin quote was improper for three reasons. First,
he contends it was inflammatory and distracted the jury from its sentencing
responsibility. Second, he asserts the comment implied any defendant convicted of
murder usurps the compassion belonging to victims and "improperly told the jury there
was no need to treat Jonathan Carr as a 'uniquely individual human being' in determining

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the appropriate punishment, because he is part of a 'faceless, undifferentiated mass' of
murderers who have . . . usurped the compassion that should belong to the victims."
Third, he argues it diverted the jury from deciding the case based only on the evidence
and controlling law. The State contends the commentary was an appropriate appeal to
remember the victims, arguing the prosecutor tied it to the defendants in a way that did
not prevent the jury from giving individualized consideration.

The State is correct that the prosecutor tied this commentary to J. Carr and R. Carr.
Immediately after quoting Gatlin, the prosecutor closed her argument, stating:

"Reginald Carr and Jonathan Carr, they do not deserve your sympathy. They don't
deserve your pity, and they don't deserve your warmth. They don't deserve your mercy
because they gave no mercy. Not even on, as you remember, the request, the verbal
request of [A.S.], did not cause them to give mercy. It did not cause whichever brother
was not the shooter to jump on the other's back to help stop this horrific murder. They
don't deserve your mercy and they don't deserve your leniency. Deliver a verdict that the
law requires under the evidence that you have heard."

We previously acknowledged the prosecutor's right to employ dramatic delivery
during closing argument in the guilt phase. R. Carr, 300 Kan. at 249. On that topic we
said:

"The wide latitude permitted a prosecutor in discussing the evidence during
closing argument in a criminal case includes at least limited room for rhetoric and
persuasion, even for eloquence and modest spectacle. It is not opening statement; it is not
confined to a dry recitation of the evidence presented. Compare State v. Hilt, 299 Kan.
176, Syl. ¶ 9, 322 P.3d 367 (2014) ('A prosecutor may use analogies, similes, allusions,
and other rhetorical devices in an attempt to bring order to the facts presented at trial,
place them in a meaningful context, and construct the whole of a case. Within sensible
limits set by similarity and dissimilarity to the facts of a case, a prosecutor's appropriate

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 rhetorical devices may include film allusions and comparisons or be otherwise
theatrical.')." 300 Kan. at 250.

Consistent with this holding, we conclude the commentary in the penalty-phase
closing was within the latitude afforded to prosecutors.

3. Argument Regarding Prison Conditions Fell Within Wide Latitude
Afforded

R. Carr claims the prosecutor improperly suggested life in prison would be
pleasant. The State contends the prosecutor instead properly rebutted R. Carr's counsel,
who argued:

"We are talking about things you need to consider. Reggie is going to be
incarcerated. He will be put in prison basically forever. He is going to be caged up. And
Reggie needs to be caged up with the lions in the penitentiary, so all of us rabbits will be
safe. That's not going to be a problem with us. Reggie is not going to have a good time in
prison. Reggie is never going to be able to determine again when he gets up in the
morning or when he gets to go to bed at night. He is never going to be able to determine
the food he gets to eat or clothes he is going to wear. He is never going to be able to
determine who . . . he is going to see and when he gets to see them or the circumstances
of those visitations, if they occur."

The prosecutor responded to these remarks, stating: "They talked to you about, well, they
will be locked up for a long time in a cage. A cage with access to books, library,
basketball, daily exercise, TV."

R. Carr relies on Kleypas I to challenge this remark on prison conditions. In
Kleypas I this court concluded a prosecutor's questions eliciting privileges enjoyed by
prisoners constituted error. 272 Kan. at 1098-99. The district court granted a defense
motion in limine and ordered the parties not to introduce evidence regarding prison

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conditions. 272 Kan. 1097. Yet, during a prison official's cross-examination, the
prosecutor inquired about the forbidden subject.

"The prosecutor's cross-examination of Haggard was a violation of the trial
court's order and constituted prosecutorial misconduct. The cross-examination was an
attempt to prejudice the jury by improperly suggesting to them that prison was an easy
environment, and the prosecutor admitted as much. Such evidence was clearly irrelevant,
inadmissible, and prejudicial to the defendant. We are greatly disturbed by the
prosecutor's conduct, especially considering the nature of this case." 272 Kan. at 1099.

Here, there was no order preventing counsel from exploring this topic. And the
prosecutor's remark responded to R. Carr's closing that had alluded to the harsh reality of
life imprisonment. Other courts examining similar statements have recognized that
"living conditions at prisons are to some extent common knowledge" and a prosecutor's
reference to privileges such as regular meals, clean clothes, television, visitation, and
other conditions incident to incarceration are unlikely to be prejudicial. See, e.g., State v.
Scales, 655 So. 2d 1326, 1334 (La. 1995). In this case, this brief reference was within the
prosecutor's wide latitude.

4. The Prosecutors Did Not Misstate Parental Neglect Evidence

R. Carr argues the prosecutor mischaracterized the defendants' parental neglect
evidence offered to support mitigation. Specifically, he asserts this evidence
demonstrated his mother punished him and his siblings on one occasion by refusing to
cook or feed them for weeks on end. During closing, the prosecutor minimized this
incident as one in which the mother forced her children to eat their vegetables.

There was conflicting testimony regarding the nature, extent, and duration of this
event. In cross-examination, the mother testified she made her three children cook their

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own meals for a couple of weeks, using food available in the home, as punishment for
their wasteful consumption. She testified there was plenty of food in the house and, when
the supplies dwindled, she purchased more.

R. Carr's argument is based on the prosecutor's refusal to adopt the defense's more
disturbing version of this event. But the prosecutor's description was reasonably founded
on the mother's testimony and within the prosecutor's wide latitude.

5. The Prosecutor Did Not Improperly Argue the Law Required a Death
Verdict and Statements During Opening Did Not Constitute Reversible
Error

R. Carr's final prosecutorial error challenge asserts the prosecutor improperly
argued the law required the jury to impose the death penalty. He points to the prosecutor's
opening penalty-phase statement that "[t]here is no equivocation. The sentence shall be
death. Ladies and gentlemen, that is the law." (Emphasis added.) He also points to other
occasions when the prosecutor said, "[I]t is your job and your privilege as jurors to do
this duty and to continue to bring a just penalty." The State contends there was no error
when the selected statements are placed in proper context.

We agree R. Carr has not placed the challenged statements in context. Before
stating the "sentence shall be death," the prosecutor argued:

"Ladies and gentlemen of the jury, we look at the incidents of the year 2000. We
look at what happened in the scope of the evidence that has been presented. You look at
whether or not the State has met its burden in proving that those aggravating factors
outweigh any mitigation that could be presented. And will. But you need to recall all that
you know and remember to the time that you listened to this Court instruct you as to the
charge to this jury, that if you should find the aggravating factors are outweighed by the
mitigating factors, then the sentence shall be death.

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 "There is no equivocation. The sentence shall be death. Ladies and gentlemen,
that is the law."

R. Carr considers the challenged statement to be comparable to one disapproved in
Scott, in which the prosecutor told jurors they needed to honor their oath and return a
guilty verdict, implicitly suggesting that to do otherwise would violate their duty. 286
Kan. at 79. A prosecutor's argument that implies the jury may violate its sworn oath has
more force and carries greater potential for unfair prejudice than an argument that the
facts and applicable law compel a death sentence. Especially when considered in
combination with other statements recognizing the jury's authority and discretion to
conduct the statutory weighing, the argument here is distinguishable from the "violation
of sworn oath" argument in Scott. See Strouth v. Colson, 680 F.3d 596, 606 (6th Cir.
2012) (prosecutors may argue jury has duty to impose death sentence when supported by
the facts and law).

We also note the "equivocation" argument, even when considered in isolation, was
consistent with K.S.A. 2020 Supp. 21-6617(e), which sets out the standard for the jury's
verdict.

"If, by unanimous vote, the jury finds beyond a reasonable doubt that one or
more of the aggravating circumstances enumerated in K.S.A. 2020 Supp. 21-6624, 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."

But there is another problem with this passage, which no party appears to have
noticed. We address this as unassigned error under K.S.A. 2020 Supp. 22-6619(b).

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 When the prosecutor said "[y]ou listened to this Court instruct you as to the charge
to this jury, that if you should find the aggravating factors are outweighed by the
mitigating factors, then the sentence shall be death," she clearly misstated the law under
K.S.A. 2020 Supp. 21-6617(e). (Emphasis added.) Such a misstatement is prosecutorial
error.

That said, the erroneous statement was isolated; the prosecutor's argument
correctly described the weighing process elsewhere, as did the judge's instructions. There
is no reasonable possibility the misstatement standing alone affected the jury's ultimate
conclusion regarding the weight of the aggravating and mitigating circumstances, i.e.,
the death sentence verdict. See Kleypas II, 305 Kan. at 316; Sherman, 305 Kan. 88, Syl.
¶¶ 6-8.

6. Cumulative Prosecutorial Error

We have identified two prosecutorial errors that could potentially affect both
R. Carr's and J. Carr's death sentences—the prosecutor's endorsement of Pay's credibility
(referring to the "truth") and her misstatement of the K.S.A. 2020 Supp. 21-6617(e)
weighing formula during opening statements. Although we held each error harmless
standing alone, we consider their cumulative impact. Kleypas II, 305 Kan. at 315.

Given the enormity of the State's evidence supporting aggravating circumstances,
the isolated nature of the comments in question, and the correcting influence of the jury
instructions, we cannot see any reasonable possibility these two errors affected the jury's
ultimate conclusion regarding the weight of the aggravating and mitigating
circumstances, i.e., the death sentence verdict. Sherman, 305 Kan. 88, Syl. ¶¶ 6-8.

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 R. P19—Double Jeopardy

For the reasons stated in the court's previous decision, we do not reach the merits
of this claim. R. Carr, 300 Kan. at 258, 314.

S. P20—Execution Protocol

For the reasons stated in the court's previous decision, we do not reach the merits
of this claim. 300 Kan. at 258, 314-15.

T. P22—Cumulative Error

No penalty-phase error independently requires R. Carr's death sentence to be
vacated. But both R. Carr and J. Carr assert they are entitled to relief because their
penalty phase was infected by cumulative error. We disagree and hold that cumulative
penalty-phase error does not require reversal of the death sentences.

1. Standard of Review and Legal Framework

Cumulative error analysis aggregates all errors and assesses whether their
cumulative effect is such that they cannot be determined to be harmless, even though
individually those errors are harmless. State v. Tully, 293 Kan. 176, Syl. ¶ 16, 262 P.3d
314 (2011). In assessing cumulative error in the penalty phase of a capital trial, the errors
aggregated include any errors in the guilt-phase proceedings we determine must be
considered in conjunction with the penalty-phase errors. See Kleypas II, 305 Kan. at 346.
In addition, the errors aggregated include those penalty-phase errors assumed by the
court. See State v. Sean, 306 Kan. 963, 993-94, 399 P.3d 168 (2017). And they include
penalty-phase jury instruction errors not raised in the district court that are not clearly

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erroneous. See State v. Seba, 305 Kan. 185, 215-16, 380 P.3d 209 (2016) (including jury
instruction error in cumulative error analysis when claim of error was raised for first time
on appeal and court merely assumed error occurred); State v. Parks, 294 Kan. 785, 804,
280 P.3d 766 (2012).

When reviewing cumulative error in a capital penalty-phase proceeding, our focus
is on the errors' cumulative effect on "'the jury's ultimate conclusion regarding the weight
of the aggravating and mitigating circumstances.'" Cheever II, 306 Kan. at 799 (quoting
Kleypas I, 272 Kan. at 1087). In other words, we are looking for the errors' effect in their
aggregate, recognizing errors can differ in their individual or cumulative effect. See, e.g.,
Gleason II, 305 Kan. at 816 (while identifying two instructional errors, the court did not
"perceive they had the effect of intensifying one another"); Kleypas II, 305 Kan. at 346-
47 ("As to errors in the penalty phase, we have found several but concluded none
individually require us to vacate the penalty verdict. . . . Turning to the cumulative effect
of these errors, none of these incidents were related, so none had the effect of intensifying
another."). "This 'task is undoubtedly more subtle than simply counting up the number of
errors discovered.'" R. Carr, 300 Kan. at 251.

Ultimately, we must determine whether the errors' cumulative effect, "viewed in
the light of the record as a whole, had little, if any, likelihood of changing" the jury's
conclusion. Cheever II, 306 Kan. at 799. The phrase "little, if any, likelihood" reflects a
level of certainty akin to the Chapman harmless-error standard that courts apply to
constitutional errors. Ward, 292 Kan. at 561-62; see Kleypas II, 305 Kan. at 272 ("[I]n
using the 'little, if any, likelihood' language in our past cases we intended to apply the
constitutional harmless error standard of Chapman."). But as we most recently said in
Cheever II, the degree of certainty required to deem error harmless depends on whether a
right guaranteed by the United States Constitution has been infringed:

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 "The degree of certainty by which we must be persuaded turns on whether any of the
errors infringe upon a right guaranteed by the United States Constitution. See State v.
Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied [565 U.S. 1221] (2012).
The overwhelming nature of the evidence is a factor to be considered, but its impact is
limited. As with the prosecutorial-misconduct analysis, the question before this 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.
See Kleypas [I], 272 Kan. at 1088." Cheever II, 306 Kan. at 800.

The Cheever II court nonetheless framed its analysis and conclusion as whether
there was "little, if any, likelihood of changing the jury's ultimate conclusion that death
was the appropriate sentence." 306 Kan. at 802. But it did so expressly because two
errors "implicate[d] constitutional rights . . . ." 306 Kan. at 801.

Cheever II's rule that the applicable Ward standard guides our cumulative error
analysis is consistent with our earlier holding that state-law penalty-phase errors do not
automatically require Chapman harmless-error review. It is also consistent with our
decisions applying different harmless-error standards in cumulative error review outside
the death penalty context, depending on the nature of the errors accumulated. See, e.g.,
State v. Solis, 305 Kan. 55, 71, 378 P.3d 532 (2016) (concluding two unpreserved jury
instruction errors did not deprive defendant of fair trial because court was "firmly
convinced that, under the totality of the circumstances, the manner in which the district
court instructed the jury did not affect the outcome of the trial"); State v. Gilliland, 294
Kan. 519, 550, 276 P.3d 165 (2012) ("Where, as here, the errors found by this court are
not constitutional in nature, we examine whether there is a reasonable probability the
aggregated errors would have affected the outcome of the trial. Ward, 292 Kan. at 569-
70."). But see State v. Smith-Parker, 301 Kan. 132, 168, 340 P.3d 485 (2014) (holding
cumulative error required reversal because "[t]he combination of the overall weakness
of the evidence . . . and multiple serious procedural defects tainting the process mean[t]

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[defendant] was substantially prejudiced under the totality of the circumstances and
denied a fair trial").

Constitutional errors are present here. And we have previously said that, when any
errors being aggregated in a cumulative error analysis are constitutional in nature, the
cumulative error must be harmless beyond a reasonable doubt. See Cheever II, 306 Kan.
at 800-01; Tully, 293 Kan. at 205 (citing United States v. Toles, 297 F.3d 959, 972 [10th
Cir. 2002]). But see Hagans v. United States, 96 A.3d 1, 44 (D.C. 2014) ("This court has
never addressed how to evaluate the cumulative impact of such a mixed bag of
[constitutional and nonconstitutional] errors, and there is little pertinent authority
elsewhere. The Supreme Court has yet to confront the issue. As for the federal appellate
courts, it appears that only the Tenth Circuit has delved into the question.").

Applying this rule, we will conduct a Chapman harmless-error review. We clarify
that when conducting a Chapman harmless-error review of multiple errors in a capital
penalty-phase proceeding, we ask whether we are persuaded there is no reasonable
possibility the errors' cumulative effect, viewed in light of the record as a whole, affected
the jury's ultimate conclusion regarding the weight of the aggravating and mitigating
circumstances, i.e., the death sentence verdict. See Cheever II, 306 Kan. at 800-01.

2. Summary of Trial Errors

Defendants' trial was infected with the following guilt-phase errors: (1) the
severance error, which continued into the penalty phase as discussed above; (2) reverse-
Batson error in the denial of defendants' peremptory challenge of W.B., R. Carr, 300
Kan. at 129; (3) erroneous admission of Linda Ann Walenta's statements through law
enforcement testimony, 300 Kan. at 143-44; (4) erroneous application of Kansas' third-
party evidence and hearsay rules, which prevented R. Carr from pursuing his defense to

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the Birchwood crimes, 300 Kan. at 209-10; (5) erroneous instruction on the sex-crime-
based capital murder counts, 300 Kan. at 162-63; (6) three of the multiple-homicide-
based capital murder convictions were multiplicitous with the first, 300 Kan. at 165;
(7) lack of subject matter jurisdiction over any sex crime charges based on coerced
victim-on-victim sex acts, 300 Kan. at 171-72; (8) one conviction for rape of H.G. was
multiplicitous with the other, 300 Kan. at 179; (9) erroneous exclusion of expert
testimony on the reliability of eyewitness identifications, 300 Kan. at 226; (10) error in
instructing the jury to consider an eyewitness' degree of certainty, 300 Kan. at 235-36;
and (11) error in giving an aiding and abetting instruction that discussed foreseeable
crimes, 300 Kan. at 239. See Kleypas II, 305 Kan. at 346. These errors are put into the
same "error pot" as the penalty-phase errors when, as here, the same jury heard both the
guilt and penalty phase. 305 Kan. at 346 (denying considering the error of the guilt-phase
proceedings because a different jury heard the penalty phase).

We have also identified the following penalty-phase errors or assumed errors:
(1) denying defendants a continuance to consult with Preston about Pay's testimony and
to recall Preston for surrebuttal; (2) prosecutorial error in commenting that the "truth"
about defendants' PET scans came out; (3) instructing the jury to reject the death penalty
if it was not convinced the aggravating circumstances did not outweigh the mitigating
circumstances; (4) prosecutorial error in telling the jury to impose the death penalty if the
aggravating factors were outweighed by the mitigating factors; (5) failing to instruct the
jury it had to find defendants were at least 18 years old at the time of the murders to
impose the death penalty; and (6) the technical, assumed error in failing to instruct the
jury on possible sentences for each noncapital crime and the district court's discretion to
run the sentences concurrent or consecutive.

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 In addition, R. Carr's penalty-phase trial was affected by one error, recognized
under the law of the case doctrine, we will not consider in J. Carr's appeal: the State's use
of testimonial hearsay statements (taken from police reports) in its questions propounded
to defendants' mitigation witnesses, where R. Carr was not afforded a prior opportunity to
cross-examine the declarants.

3. Cumulative Error Analysis

In the penalty-phase proceeding, the State relied on its guilt-phase evidence to
support the following four aggravating circumstances:

"Defendants knowingly or purposely killed or created a great risk of death to more than
one person; defendants committed the crimes for themselves or another for the purpose of
receiving money or any other thing of monetary value; defendants committed the crimes
in order to prevent a lawful arrest or prosecution; and defendants committed the crimes in
an especially heinous, atrocious, or cruel manner." R. Carr, 300 Kan. at 258-59.

The guilt-phase evidence supporting each alleged aggravating circumstance was
profound. This is a factor we must consider, albeit not a dispositive one. See Kleypas II,
305 Kan. at 347.

Although we found state-law error in the district court's failure to sever the trials
during the guilt phase—an error that carried over into the penalty phase—it does not add
any weight to the other errors' cumulative effect. This court previously found this error
was reversible on Eighth Amendment grounds, but the United States Supreme Court's
emphatic conclusion to the contrary convinces us the error, while a defect in the
proceedings, was harmless. Although all penalty-phase errors occurred within the joint
trial, they did not amplify the severance problem. No error tended to favor one defendant

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more than the other. In other words, the fact the errors occurred in a joint trial did not
make them more damaging than they would have been in separate proceedings.

Most remaining errors operated independently such that the whole of these errors
was no greater than the sum of its parts. But within this group are two sub-groups related
to one another. These are the PET scan errors and the errors conveying incorrect
weighing equations to the jury.

The PET scan errors—prosecutorial error and denying Preston's surrebuttal—
relate to one another in that they affected the defendants' mitigation claim related to those
PET scans. But we conclude there is no reasonable possibility these two errors, even
considered as a unit, had any effect on the jury's ultimate conclusion regarding the weight
of the aggravating and mitigating circumstances, i.e., the death sentence verdict. And that
unit is not intertwined with other errors in a way that magnifies their prejudicial effect.

Preston's testimony was of questionable value given his concession that PET scans
are not accepted as reliable tools to predict or explain criminal behavior. While
surrebuttal might have been used to defend against any suggestion that Preston
deliberately misled the jury, whether his flawed methodology was deliberate does not
bear on this evidence's underlying lack of persuasive force.

As we concluded above, reasonable inferences from the evidence supported the
prosecutor's claim that Preston's impeachment undermined the remaining mitigation case
because other defense mitigation experts tied or reconciled their opinions to Preston's
findings. Although the claim was within the bounds of permissible argument, it does not
necessarily mean the claim was convincing.

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 Defendants' attorneys pointed this out to the jury in closing arguments. R. Carr's
attorney said "it doesn't matter" whether the jury believed Preston or Pay because the
PET scan was just a confirmatory test to buttress the psychological findings. He noted,
"[W]e do confirmatory tests all the time. Sometimes they do [confirm psychological
findings], sometimes they don't. That's all the PET scan was . . . ." J. Carr's attorney
directly addressed and dismissed the prosecutor's claim that the PET scan evidence was
"the foundation of the mitigation." He noted Preston testified "a lot of people" have the
same brain injury as J. Carr. He also observed Preston did not say the injury caused
J. Carr to commit the crimes, and that, as something that "affects certain parts of the brain
that might involve [J. Carr's] thought processes," the jury should know about it.

Our review of the record reflects Preston's testimony about the defendants' brain
metabolism was only a small component of their mitigation cases, which otherwise
focused on the theme that defendants' tumultuous upbringing and psychological profiles
placed them on a path leading to capital murder. Two expert witnesses called by R. Carr
linked these latter two mitigation components by opining R. Carr suffered from antisocial
personality disorder likely stemming from childhood traumas. And an expert called by
J. Carr, who conducted a comprehensive family and social history investigation, also
linked those components. He opined that J. Carr's family situation involving physical and
sexual abuse, emotional detachment, and a genetic predisposition to emotional instability
contributed to him being emotionally disturbed from early childhood.

In short, there was ample evidence, apart from the PET scan evidence, suggesting
that circumstances beyond defendants' control set them down a path toward their crimes
(which was the central theme of the defendants' mitigation case). We are confident there
is no reasonable possibility the errors tending to decrease the PET scan evidence's
potency affected the jury's ultimate conclusion regarding the weight of the aggravating
and mitigating circumstances, i.e., the death sentence verdict.

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 The prosecutorial error concerning the jury's weighing equation and the error on
the verdict forms instruction are related in that they both recited incorrect standards for
determining how the relative weight of aggravating and mitigating circumstances
impacted its verdict. The prosecutor told the jury to impose the death penalty if
aggravating factors were outweighed by mitigating factors. The instruction told the jury
to use a verdict form rejecting a sentence of death if one or more jurors was not
convinced the aggravating circumstances did not outweigh the mitigating circumstances.

Though these errors are related, unlike the PET scan errors, they do not magnify
one another because they misstated the law in different ways. Their import is that they
might raise the possibility the jury did not apply the correct weighing equation. This
possibility is dispelled by the verdict forms, which clearly and accurately led the jurors
through the necessary findings to reach their verdict.

The remaining errors do not amplify the prejudicial effect of the errors taken as a
whole. The district court's other instructional errors—the failure to instruct the jury that it
had to find defendants were at least 18 years old at the time of the crime and the failure to
fully instruct the jury on the possible sentences for each noncapital crime—are distinct
enough they cannot possibly result in prejudice when combined with any other errors.

The remaining penalty phase error—permitting the cross-examination of
mitigation witnesses using hearsay—is unique to R. Carr's case. It also does not amplify
the other errors.

We must also consider the impact of the guilt phase errors the court identified in
its earlier decision. They tend to not amplify or interact with any other penalty phase
error. Instead, they contribute to the idea of residual doubt. See Rompilla v. Beard, 545

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U.S. 374, 386-87, 390, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005) (discussing use of
residual doubt as defense strategy in penalty phase of capital trial). Specifically, Judge
Clark's error in applying the third-party evidence rule and hearsay exceptions, which may
have deterred R. Carr from testifying on his own behalf, arguably lessened the chance a
juror would have possessed residual doubt of R. Carr's guilt during the penalty phase. See
R. Carr, 300 Kan. at 186-87, 209-10.

However, when addressing whether this guilt phase error required reversal of his
capital conviction, we noted the "remarkable strength of the State's case against R. Carr"
in concluding that "there was no impact on the trial's outcome from the exclusion of
R. Carr's proffered testimony." (Emphasis added.) 300 Kan. at 212. In reaching that
conclusion, we favorably quoted the State's summation of its case against R. Carr.

"'[H.G.'s] identification of Reginald, both immediately following the attack and
at trial, as one of the two black males responsible for the crimes perpetrated against her
and her friends. [H.G.'s] identification was buttressed by multiple scientific sources,
including the mitochondrial DNA analysis, which revealed that of the four hairs collected
from the Birchwood scene and submitted for analysis only two were of African–
American lineage and defendant could not be excluded as the donor of either one; the
nuclear DNA test results, which demonstrated defendant also could not be excluded as
the donor of the DNA evidence recovered from [H.G.'s] inner thigh and which identified
the blood on defendant's shirt and underwear as that of [H.M.]; and the medical evidence,
which demonstrated that a few short months after the attack [H.G.] developed the same
sexually transmitted disease that defendant carried.'

"'Additional evidence to support the identification included footwear impressions
taken from a Voicestream box and tarp at the Birchwood residence and determined to
match the size, shape, and character of the "B-Boots" Reginald wore. A cigar-type ash,
. . . matched the diameter of the cigar recovered from Reginald's coat pocket. Both pieces
of evidence supported [H.G.'s] assertion that Reginald played an active role in the
commission of the offenses.

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 "'Further, the court heard evidence that it was Reginald who was in possession of
a vast majority of the property taken from the Birchwood residence, given that it was
recovered from both the apartment where he was staying and his Plymouth vehicle. That
property included a big screen TV, various electronics, bedding, luggage, a vast amount
of clothing, and numerous personal items belonging to each victim—including
checkbooks, wallets, credit cards, drivers' licenses, sets of keys, gas cards, watches, and
day planners—as well as numerous ATM receipts and just under $1000.00 in cash, a
particularly notable fact given that Reginald was unemployed. Moreover, Reginald was
stopped by law enforcement officers after driving by the Birchwood residence at
approximately 4:00 a.m. on the morning of the killings.

"'Finally, at the time of the proffer the court was aware of the evidence that
highlighted Reginald's link to the Lorcin handgun used in the commission of the murders
and that, despite his efforts to dispose of the gun, it was ultimately recovered and tested,
revealing that each bullet and cartridge was fired from that gun.'" R. Carr, 300 Kan. at
211-12.

The strength of the evidence establishing R. Carr's role and culpability in perpetrating
these crimes left no room for any meaningful amount of residual doubt, even if the guilt
and penalty phase errors had not occurred.

In the final analysis, the State's aggravation case—which rested entirely on its
guilt-phase evidence—was formidable. This evidence overwhelmingly established that
defendants knowingly killed more than one person, for the purpose of receiving money or
items of monetary value and to prevent arrest or prosecution, and that they did so in an
especially heinous, atrocious, or cruel manner.

Following the jury's guilt-phase verdicts, the penalty-phase proceeding consisted
almost entirely of defense witnesses who testified over the course of nearly two weeks
about the defendants' upbringing, psychological profiles, and other mitigating

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circumstances. R. Carr, 300 Kan. at 259-75. After giving due consideration to this
evidence, the jury unanimously found beyond reasonable doubt that all four aggravating
circumstances were present and outweighed mitigating circumstances, thereby warranting
a death sentence verdict.

Under these circumstances, we are convinced there is no reasonable possibility the
identified errors, deemed harmless in isolation, cumulatively affected the jury's ultimate
conclusion regarding the weight of the aggravating and mitigating circumstances, i.e., the
death sentence verdict. To borrow again from the United States Supreme Court, given the
State's evidence "[n]one of that mattered." 577 U.S. at 126. We are satisfied the jury
correctly understood its charge and was not swayed by the aggregate impact of these
identified defects.

CONCLUSION

After careful review and consideration of the entire record, we conclude that "the
evidence supports the findings that" one or more aggravating circumstances "existed
and that any mitigating circumstances were insufficient to outweigh the aggravating
circumstances." K.S.A. 2020 Supp. 21-6619(c)(2). Having confirmed that Reginald
Dexter Carr Jr. received a fair trial and the jury's sentence was not "imposed under the
influence of passion, prejudice or any other arbitrary factor," K.S.A. 2020 Supp. 21-
6619(c)(1), we affirm Reginald Dexter Carr Jr.'s death sentence for the capital murder of
H.M., J.B., B.H., and A.S.

***

BILES, J., concurring: I concur in the majority result and rationale with one
exception because I find much of the majority's section 1 analysis unnecessary. State v.

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Carr, 314 Kan. ___ (R. Carr II), slip op. at 20-40. My reasoning harkens back to what I
wrote in Hodes & Nauser, MDs v. Schmidt, 309 Kan. 610, 706, 440 P.3d 461 (2019)
(Biles, J., concurring) ("I hope those reviewing my colleagues' history lessons will accept
the exercise for what it obviously is—hard working judges trying to honestly answer the
questions presented in good faith. But for me, an originalism search gets us only so far
when divining meaning for words with such obvious open-ended qualities as 'liberty' or
'inalienable natural rights.' The historical back-and-forth really just boils down to how
much weight is given one selected fact over another.").

The Carr defendants contend section 1 of the Kansas Constitution Bill of Rights
"protects the right to life, and Kansas' capital sentencing scheme unconstitutionally
infringes upon this right." R. Carr II, 314 Kan. at ___, slip op. at 18. But as the majority
acknowledges, that was decided more than 20 years ago. See State v. Kleypas, 272 Kan.
894, 1051-52, 40 P.3d 139 (2001) (Kleypas I) ("We conclude that Kansas' death penalty
scheme does not violate the spirit or the letter of § 1."), overruled on other grounds by
Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006).

I appreciate the Carr defendants seized on the recent decision in Hodes & Nauser
to animate what amounts to an old—previously decided—issue. But Kleypas I effectively
disposed of their essential argument. So aside from some additional discussion about the
historical context of section 1 from the Wyandotte Convention, I would end the analysis
there, relying on Kleypas I and the relevant cases it recited, including Slaughter v. State,
950 P.2d 839, 861-62 (Okla. Crim. App. 1997) ("Surely killing a person infringes on that
same right [to life]. Appellant has presented nothing to this Court showing that the
Legislature's ability to establish a punishment of death for first degree murder in any way
violates his 'inherent' right to life[, liberty, the pursuit of happiness, and the enjoyment of
the gains of their own industry].").

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 ***

STEGALL, J., concurring: I join the majority's decision to affirm. But I do so with
deep doubts and reluctance because this court's section 1 jurisprudence—begun in Hodes
& Nauser, MDs v. Schmidt, 309 Kan. 610, 440 P.3d 461 (2019), and continued today—is
a gross constitutional error. I continue to dissent from that error. See generally Hodes,
309 Kan. at 707-78 (Stegall, J., dissenting).

I write to explain those doubts and to emphasize that today's decision adds both
clarity and dreadful effect to the egregious consequences of the Hodes decision. When, in
Hodes, we abandoned our longstanding interpretation of section 1 as a limit on state
police power in favor of an ephemeral scheme of limited and judicially pronounced
rights, we stripped all citizens of their "first rights of republican self-rule" including the
right to be "free from arbitrary, irrational, or discriminatory regulation that bears no
reasonable relationship to the common welfare." 309 Kan. at 753, 766 (Stegall, J.,
dissenting).

Indeed, having eliminated the substantive first right of a free and self-governing
people, the Hodes court "only magnifie[d] the State and its near-limitless power." 309
Kan. at 745 (Stegall, J., dissenting). And the outcome of this fundamental change in
constitutional structure is manifest anew in today's decision which reads our Constitution
as giving the state nearly limitless power to punish citizens—unencumbered from any
substantive check and limited only by the familiar panoply of procedural guarantees
explicitly enumerated in the Kansas Constitution Bill of Rights.

It may be tempting to adopt a dismissive shrug at this outcome given the gruesome
outrage of the underlying events. It would be understandable if one felt ambivalent about
this magnification of state power given that the impact today falls only on two of the

146
most brutal and coldblooded killers in the history of Kansas. But if substantive guarantees
are not afforded to every single citizen—and rigorously defended no matter the
circumstances—the people will not long be free.

Over the course of this court's vigorous disagreements concerning the meaning
of section 1, the Hodes majority rather breathlessly suggested that "the dissent appears
to maintain that upon becoming pregnant, women relinquish virtually all rights of
personal sovereignty in favor of the Legislature's determination," and that I wanted "a
constitutional prerogative to invade the autonomy of pregnant women and exclude them
from our state Constitution's Bill of Rights." Hodes, 309 Kan. at 650.

Far from a one-off of excessive hyperbole, the Hodes majority made this its
thematic criticism of my articulation of our longstanding and traditional view of section 1
as a restriction on state police power. Because I interpret section 1 as a substantive due
process provision—that is, as a substantive limit on the power of the government rather
than a discreet-rights granting provision—the majority argued I was "dismissive" of the
rights of citizens. 309 Kan. at 637. My colleagues suggested my description of section 1's
limits on the state's police power set "too low a bar" and would "allow[] the State to . . .
intrude into all decisions." 309 Kan. at 671. According to the Hodes majority, I desired to
leave "naked and defenseless" citizens with no recourse against the "unrestrained" power
of the state which had "no practical limits" and would "intrude with impunity" against the
individual. 309 Kan. at 679-80.

Of course this was a "fabrication so flimsy it makes run-of-the-mill straw men
appear as fairy tale knights by comparison." 309 Kan. at 768 (Stegall, J., dissenting). At
the time Hodes was decided, however, the majority could get away with this faulty-but-
effective rhetoric because it viewed itself as standing nobly between an aggressively
paternalist government and the rights of women. It has taken today's case—and likely

147
future cases as well—to clarify what was really going on. So, I resurrect this old squabble
not to pick at closed wounds, but because today's decision shines the disinfectant of
sunlight on the rhetorical posture of the Hodes majority.

Without the benefit of that rhetorical posture, the essential effect of the Hodes
decision is revealed to be what I explained it to be at the time—that "it fundamentally
alters the structure of our government to magnify the power of the state." 309 Kan. at 707
(Stegall, J., dissenting). That shift—the magnification of state power—is enacted today as
we hold that a citizen's limited section 1 rights are "forfeited when a person's criminal
conduct necessitates punishment." State v. Carr, 314 Kan. ___ (R. Carr II), slip op. at 34.
Thus, the majority makes it explicit that a criminal defendant has no section 1 protections
at all. Indeed, according to the majority, "the state's power to punish" is limited only by
"due process" and "cruel or unusual" provisions which "do not arise under section 1."
R. Carr II, 314 Kan. at ___, slip op. at 40.

It turns out that in reality, it is the majority's interpretation of section 1 (not mine)
that ends up with some citizens "relinquish[ing] virtually all rights of personal
sovereignty in favor of the Legislature's determination," and "exclude[d]" from
substantive constitutional protections against state exercises of power. Hodes, 309 Kan. at
650. If, however, section 1 is a substantive check on state power rather than a
fundamental-rights-that-might-be-forfeited provision, it will always and everywhere
provide the same protection to all people regardless of circumstances. And that is exactly
the test I proposed in my Hodes dissent—a test demanded by the overwhelming weight of
text, history, and longstanding judicial precedent.

I articulated that test like this:

"In sum, section 1 demands this 'rational basis with bite' judicial inquiry. In order
to be a constitutional exercise of power, every act of our Legislature must be rationally

148
 related to the furtherance or protection of the commonwealth. The lodestar of this test is,
'"what have [the people] authorized to be done?"' Nemaha, 7 Kan. at 557 (Brewer, J.,
dissenting). The people have not authorized the State to act in arbitrary, irrational, or
discriminatory ways. Applying the necessary deference, a court must examine the actual
legislative record to determine the real purpose behind any law in question before it can
conclude the law is within the limited constitutional grant of power possessed by the
State." Hodes, 309 Kan. at 767 (Stegall, J., dissenting).

This is the test we should now apply to the death penalty as enacted by the Kansas
Legislature. I have no preconceived idea about how such an inquiry would play out. And
it is one of the great misfortunes of the Hodes decision that we now will never know. The
lower courts have not inquired into the subject, the parties have not briefed the issue, and
this court has declined to take it up.

Given this uncertainty, and the monumental consequences of the State's exercise
of this most final, most irreversible, and most grave use of power—killing a human
person—I am left with a profound and unshakable disquiet about our court's blessing
upon these procedures. As a consequence, if the issue had been joined, I would be
inclined, as in Hodes, to remand this matter for a review of

"whether the legislative act is reasonably related to the furtherance or protection of the
common welfare. The Legislature has wide latitude to define for itself the substantive
content of the common good, circumscribed by the traditional police power limit that a
law cannot be arbitrary, irrational, or involve a class-based form of discrimination."
Hodes, 309 Kan. at 769 (Stegall, J., dissenting).

But this review would demand a real judicial inquiry into "the legislative record" to
determine whether it "reveals evidence of a discriminatory intent or some other arbitrary
or irrational purpose behind the law" and a consideration of "the possibility that the act

149
was not actually intended to further the common welfare." 309 Kan. at 770 (Stegall, J.,
dissenting).

I have previously explained why our constitutional structure, properly understood,
does not permit a "presumption of constitutionality" to attach to legislative acts. Hilburn
v. Enerpipe Ltd., 309 Kan. 1127, 1158, 442 P.3d 509 (2019) (Stegall, J., concurring in
part and concurring in judgment). But neither may a court presume unconstitutionality,
and I will not presume our death penalty is not reasonably related to the furtherance or
protection of the common good—or that it is otherwise arbitrary, irrational, or
discriminatory. A party challenging an exercise of state power as exceeding the proper
bounds of the police power has the burden to present that claim for adjudication. Because
that has not happened here, I am left with no option other than to concur in the judgment.

***

LUCKERT, C.J., concurring in part and dissenting in part: In this appeal, we review
a trial riddled by error that led to a verdict imposing the death penalty. The ultimate
question before us is whether there is a reasonable possibility the cumulative effect of all
errors might have affected even one juror's decision to impose the death penalty. See
R. Carr II, 314 Kan. at ___, slip op. at 136 (citing State v. Cheever, 306 Kan. 760, 799-
801, 402 P.3d 1126 [2017]). Given the nature and volume of errors, I cannot eliminate
the possibility that at least one juror would have decided mitigating factors or mercy
outweighed the aggravating factors put forward as reasons to sentence Reginald Carr
(R. Carr) to death. I therefore dissent from the majority's determination that these many
errors did not affect the jury verdict. I also dissent from some of the majority's holdings
about error. I have listed and discussed these points below. I otherwise agree with most
other holdings and the rationales supporting them discussed by the majority including
those relating to section 1 of the Kansas Constitution Bill of Rights.

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 My research reveals no other Kansas appellate case affirming a verdict in the face
of so many mostly interlocking errors. In State v. Carr, 300 Kan. 1, 331 P.3d 544 (2014)
(R. Carr I), rev'd and remanded on other grounds sub nom. Kansas v. Carr, 577 U.S.
108, 136 S. Ct. 633, 193 L. Ed. 2d 535 (2016) (Carr), this court found 11 errors in the
guilt phase of R. Carr's trial. 300 Kan. at 44-48, 251-52 (summarizing holdings). I joined
a concurring and dissenting opinion that found two additional errors and that would have
held cumulative error required reversing the jury verdicts. See 300 Kan. at 315-21. The
errors found by a majority of the court included:

1. The trial judge erred in refusing to allow R. Carr to exercise a peremptory
challenge;
2. The trial judge erred in refusing to sever R. Carr's trial from Jonathan Carr's
(J. Carr's) trial;
3. The trial judge erred in admitting Linda Ann Walenta's statements through law
enforcement testimony;
4. The trial judge erred in interpreting and applying the third-party evidence rule
and the hearsay rule, preventing R. Carr from pursuing his defense to some of
the charged crimes;
5. The trial judge gave a faulty instruction on the sex-crime-based capital
murders;
6. Three of the multiple-homicide-based capital murder convictions were
multiplicitous with the first;
7. The district court lacked subject matter jurisdiction over any sex crime charges
based on coerced victim-on-victim sex acts;
8. One of R. Carr's convictions for rape of one victim was multiplicitous with his
other rape conviction relating to the same victim;

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 9. The trial judge erred by automatically excluding testimony from an expert on
the reliability of eyewitness identifications;
10. The trial judge erred in instructing the jury to consider an eyewitness' degree of
certainty; and
11. The trial judge erred by giving an aiding and abetting instruction that discussed
foreseeable crimes. 300 Kan. at 251-52.

The two additional errors I would have found were:

12. The evidence was insufficient to support R. Carr's conviction of attempted
aggravated robbery underlying his felony-murder conviction of Walenta; and
13. The evidence was insufficient to support R. Carr's conviction of aiding and
abetting J. Carr's rape of one victim through digital self-penetration. See 300
Kan. at 320-21.

Considering the cumulative effect of these errors, I joined others in saying:

"I readily acknowledge that the evidence against R. Carr on the Andrew
Schreiber and Birchwood incidents was unusually strong. But it was not inevitably
invincible, particularly if the governing rules had shifted in the directions the majority
holds that they should have. My colleagues and I simply cannot know with the degree
of comfort generally required in a death penalty case, see State v. Marsh, 278 Kan. 520,
525, 102 P.3d 445 (2004), rev'd and remanded, 548 U.S. 163, 126 S. Ct. 2516, 165 L.
Ed. 2d 429 (2006), and vacated in part, 282 Kan. 38, 144 P.3d 48 (2006) (heightened
scrutiny applies to review of capital trial proceedings) (citing Beck v. Alabama, 447 U.S.
625, 637-38, 100 S. Ct. 2382, 65 L. Ed. 2d 392 [1980]), that the contours of a severed
guilt phase with no reverse Batson error and in which R. Carr was permitted to defend
himself under a correct application of the third-party evidence and hearsay rules would
have differed so little as to be insignificant. Any anticipated change in perspective could
have intensified, had expert testimony on modern research on eyewitness identification
been permitted, or had the aiding and abetting and eyewitness instructions contained no

152
 error." R. Carr I, 300 Kan. at 319-20 (Beier, J., concurring in part and dissenting in
part).

Nothing has changed that conclusion about the cumulative impact of those errors.
While the United States Supreme Court rejected the constitutional basis for finding some
errors, it did not consider the state law basis for those same errors. Plus, it considered
only a small fraction of many errors we must consider, and it thus did not consider the
effect of the multiple, interlocking errors.

As, the majority observes, we must put all these errors "into the same 'error pot' as
the penalty phase errors when, as here, the same jury heard both the guilt and penalty
phase." R. Carr II, 314 Kan. at ___, slip op. at 137.

Two of these errors heavily tainted the penalty phase of the trial, which is the
focus of today's majority decision.

As to one of those errors, this court unanimously held that the trial judge
committed error by seating a juror after defendants exercised a peremptory challenge to
the juror—that is, after R. Carr asked to strike a juror from the jury panel using a
challenge allowed under Kansas law. See R. Carr, 300 Kan. at 45, 124-39. The State
objected, and the trial judge sustained the objection and did not allow R. Carr to exercise
his peremptory challenge. On appeal from that holding, the United States Supreme Court
did not address this error, and it stands as the law of this case. R. Carr II, 314 Kan. at
___, slip op. at 136.

The trial judge's error in refusing R. Carr's request to strike a juror permeates and
taints all aspects of the trial because "[t]he proper use of the peremptory challenge is vital
to the conduct of a criminal defendant's defense. . . . Although it may seem minimal, the
deprivation of even one valid peremptory challenge is prejudicial to a defendant and may

153
skew the jury process." State v. Foust, 18 Kan. App. 2d 617, 624, 857 P.2d 1368 (1993).
When this court first decided R. Carr's guilt phase issues, 16 of our sister states had held
such an error demands automatic reversal. See R. Carr I, 300 Kan. at 135-36 (discussing
cases); 300 Kan. at 318 (Beier, J., concurring in part, dissenting in part) (same). I need
not decide whether I would join the reasoning of those courts. Even applying our
traditional tests to determine whether an error requires reversal, I cannot say the trial
court's error did not impact the jury's verdict. See State v. Ward, 292 Kan. 541, Syl. ¶ 6,
256 P.3d 801 (2011) (stating harmless error standards for constitutional and statutory
errors).

The trial judge often "provided venire persons with the magic words" that led to a
challenge for cause of those with misgivings about the death penalty and "passing for
cause those jurors who were predisposed to finding the defendant guilty and/or were
mitigation-impaired with respect to the death penalty." R. Carr I, 300 Kan. at 325-26
(Johnson, J., concurring in part and dissenting in part). "Instead of uncovering
disqualifying bias and prejudice, the voir dire questioning in this case too often served to
camouflage it." 300 Kan. at 326 (Johnson, J., concurring in part, dissenting in part).
Given this record, denying R. Carr the ability to use a peremptory strike deprived him of
"one of the very purposes of peremptory challenges[, which is] to enable the defendant to
correct judicial error." United States v. Martinez-Salazar, 528 U.S. 304, 319, 120 S. Ct.
774, 145 L. Ed. 2d 792 (2000) (2000) (Scalia, J., concurring). Plus, "[p]eremptory
challenges, by enabling each side to exclude those jurors it believes will be most partial
toward the other side, are a means of 'eliminat[ing] extremes of partiality on both sides,'
. . . thereby 'assuring the selection of a qualified and unbiased jury.'" Holland v. Illinois,
493 U.S. 474, 484, 110 S. Ct. 803, 107 L. Ed. 2d 905 (1990) (quoting Batson v. Kentucky,
476 U.S. 79, 91, 98, 106 S. Ct. 1712, 90 L. Ed. 2d 69 [1986]). Here, we have no such
assurance.

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 Simply put, denying fair use of R. Carr's right to exercise a peremptory challenge
creates a reasonable possibility, and even a reasonable probability, that a properly
selected juror untainted by an erroneous voir dire process could have decided not to
impose the death penalty. See Ward, 292 Kan. 541, Syl. ¶ 6 (stating harmlessness tests in
terms of reasonable possibilities for constitutional harmless error and probabilities for
other errors).

As to the second error with a significant effect on the penalty phase, this court held
the trial judge erred in refusing to grant R. Carr and J. Carr separate trials. R. Carr I, 300
Kan. at 45, 97. On appeal, the United States Supreme Court held the failure to sever the
trial did not implicate the Eighth Amendment to the United States Constitution or offend
the Due Process Clause of the Fourteenth Amendment of the United States Constitution.
Carr, 577 U.S. at 122-26. But that holding did not directly disturb this court's ruling that
the trial judge committed error under Kansas law when he refused to grant the request for
separate trials. R. Carr II, 314 Kan. ___, slip op. at 58-59. Today, the majority recognizes
the state law holding remains the law of the case, and it holds that "[t]he improper joinder
of the defendants did not cease to be error at the commencement of the penalty phase."
314 Kan. at ___, slip op. at 59.

Indeed, it did not. The attorneys for J. Carr warned the trial court they would be a
second prosecutor against R. Carr. While this was evident at many points during the guilt
phase when J. Carr introduced evidence prejudicial to R. Carr as he pursued a defense
antagonistic to R. Carr's, the antagonistic nature of the codefendants' cases became even
more prejudicial during the penalty phase of the trial. For example, J. Carr's attorney
elicited testimony that R. Carr confessed to shooting the victims. J. Carr thus joined the
State in presenting evidence that pointed the finger directly at R. Carr as the actual
shooter. This finger pointing dominated J. Carr's mitigation defense which consisted of
evidence, supported by expert testimony, that R. Carr badgered and pushed his brother to

155
commit criminal acts. Kansas law protects a defendant from having to counter the case of
a codefendant as well as that of the State. State v. Martin, 234 Kan. 548, 673 P.2d 104
(1983); I agree with the result of Martin and other cases that have found this type of
antagonistic finger pointing to be prejudicial error. See, e.g., United States v. Breinig,
70 F.3d 850 (6th Cir. 1995); Foster v. Commonwealth, 827 S.W.2d 670 (Ky. 1992).

While I find these two errors, along with the cumulative effect of the other guilt
phase issues, to be sufficient for reversal, today, focusing on the penalty phase of the
trial, this court unanimously held six more errors occurred or would be assumed:

1. The trial judge erred in denying the defendants a continuance to consult with
Dr. David Preston about Dr. Norman Pay's testimony and to recall Preston for
surrebuttal;
2. The prosecutor committed error in commenting that the "truth" about
defendants' PET scans came out;
3. The trial judge erred in instructing the jury to reject the death penalty if it was
not convinced the aggravating circumstances did not outweigh the mitigating
circumstances;
4. The prosecutor erred in telling the jury to impose the death penalty if the
aggravating factors were outweighed by the mitigating factors;
5. The trial judge erred in failing to instruct the jury it had to find defendants
were at least 18 years old at the time of the murders to impose the death
penalty; and
6. Assumed error occurred as a result of the trial judge failing to instruct the jury
on possible sentences for each noncapital crime and the judge's discretion to
run the sentences concurrent or consecutive. R. Carr II, 314 Kan. at ___, slip
op. at 137.

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 I would add a seventh error to the list. Under the law that existed at the time of
R. Carr's trial, the trial judge should have informed the jury that mitigating factors need
not be proved beyond a reasonable doubt. In 2001, this court directed trial judges to tell
the jury that mitigating circumstances

"(1) . . . 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 (2) mitigating circumstances
do not need to be found by all members of the jury in order to be considered in an
individual juror's sentencing decision." State v. Kleypas, 272 Kan. 894, 1078, 40 P.3d 139
(2001).

R. Carr asked the trial judge to comply with this direction, but the judge failed to do so.

In part, the Kleypas rationale for requiring this instruction depended on
constitutional interpretation rejected by the United States Supreme Court in Carr,
577 U.S. at 122. But the Kleypas rationale also depended on state law. As this court
explained in State v. Scott, 286 Kan. 54, 106-07, 183 P.3d 801 (2008), without an
instruction as directed by the Kleypas court, the instructions could have confused the
jury. That confusion, the Scott court held, required reversal. In reversing, this court
applied the standard we use when an error does not implicate the Constitution:

"Read together, the instructions repeatedly emphasize the need for unanimity as to any
aggravating circumstances found to exist. Conversely, the trial court's instructions do not
inform the jury as to a contrary standard for determining mitigating circumstances. The
jury is left to speculate as to the correct standard. Under these circumstances, we
conclude there is a substantial probability reasonable jurors could have believed
unanimity was required to find mitigating circumstances." 286 Kan. at 107.

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 The Scott court's application of the substantial probability standard for harmless
error suggests that it was not finding constitutional error. See Ward, 292 Kan. 541,
Syl. ¶ 6 (stating constitutional harmless error test); see also 292 Kan. at 564 (noting that
cases before Ward inconsistently stated the standard). Rather, the court looked at the
potential for juror confusion. Although today's majority does not discuss Scott, it notes
that this court explicitly recognized that Kleypas' directive rested, in part, on state law
and thus remained the law despite the Supreme Court clarifying the holding could not rest
on Eighth Amendment grounds. See R. Carr II, 314 Kan. at ___, slip op. at 51-52
(discussing State v. Gleason, 305 Kan. 794, 798-806, 388 P.3d 101 [2017]; State v.
Cheever, 306 Kan. 760, 784, 402 P.3d 1126 [2017]). But the majority abandons the
Kleypas directive and holds that the trial judge did not err when he refused to give an
instruction directed by this court. R. Carr II, 314 Kan. at ___, slip op. at 56.

To the contrary, in my view, for a trial court to simply ignore that a directive of
this court is itself error. See State v. Clark, 313 Kan. 556, 565, 486 P.3d 591 (2021)
("'[P]oints of law established by a court are generally followed by the same court and
courts of lower rank in later cases in which the same legal issue is raised.'"). And the
majority does not hold the directed instruction would misstate the law. Instead, it
determines "[t]he instructions viewed together as a whole correctly and clearly informed
the jurors of the law governing their consideration of mitigating circumstances." R. Carr
II, 314 Kan. at ___, slip op. at 56. Granted, we often hold a court does not err when it
refuses to give a requested instruction that provides additional information to a jury even
if the instruction would properly explain the law. But we often tell trial judges that giving
the jury added information would be a better practice. See, e.g., State v. Barlett, 308 Kan.
78, 86, 418 P.3d 1253 (2018). And in Kleypas, 272 Kan. at 1078, this court took the
added step of directing judges to give the instruction.

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 Those with legal training may find the jury instructions clear. But jurors usually
lack legal training and familiarity with concepts like burden of proof and weighing
equations. I, like the many justices of the Kansas Supreme Court who have considered
these instructions many times over the last several decades, discern ambiguity that could
confuse and mislead jurors as they perform the important task of weighing aggravating
and mitigating circumstances. That confusion was rampant in this trial, including among
the law trained. The majority agrees the trial judge erred in instructing the jury to reject
the death penalty if it was not convinced the aggravating circumstances did not outweigh
the mitigating circumstances. It also held the prosecutor erred in telling the jury to
impose the death penalty if the aggravating circumstances were outweighed by the
mitigating circumstances. The weighing equation and the way it is to be applied can be
confusing. We should recognize that reality and direct our trial courts to provide as much
clarity as possible rather than to cloak decisions about death in ambiguity.

Yet the majority quickly dismisses the effect of these errors. Although it notes
"these errors are related," it concludes "they do not magnify one another because they
misstated the law in different ways." R. Carr II, 314 Kan. at ___, slip op. at 141. But
differing statements simply magnify the potential confusion. Which of all the options is
correct? The majority defaults to the written word found on the verdict form. R. Carr II,
314 Kan. at ___, slip op. at 141. But we have another written instruction that is wrong.
Which written word controls? We should not tolerate this level of confusion when
sentencing someone to death.

When I consider the penalty phase errors together with the guilt phase errors, I am
convinced the threshold for vacation of the defendant's capital sentence has been reached
under the cumulative error doctrine. We consider here horrible and tragic criminal acts.
And the evidence against R. Carr was strong. But as said in Justice Beier's prior
concurrence and dissent, which I joined, "it was not inevitably invincible." R. Carr I, 300

159
Kan. at 319. And, especially as to the penalty phase, I cannot ignore the reasonable
possibility a properly selected jury—actually two properly selected juries—might have
reached a different verdict.

For these reasons, I respectfully dissent from the outcome reached by a majority of
this court.

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