concurring in part and dissenting in part: I agree Reginald Carr s sentencing must be reversed and remanded for new proceedings because the district court failed to sever the cases following tire convictions. I write separately to note my disagreement with the majority’s dicta in the section entitled “P10. Burden of Proof on Mitigating Factors.” 300 Kan. at 302-03. The majority argues R. Carr s sentence was imposed in violation of tire Eighth Amendment to the United States Constitution because the district court failed to explicitly instruct the jury that mitigating circumstances need not be proven beyond a reasonable doubt. I disagree.
As noted in more detail in my dissent in State v. Gleason, 299 Kan. 1127, 1210, 329 P.3d 1102 (2014) (slip op. at 100), the majority’s conclusion defies the United States Supreme Court’s established Eighth Amendment jurisprudence and lacks any persuasive analysis articulating why the circumstances in this case justify a departure from that precedent. The issue for Eighth Amendment purposes is “whether there is a reasonable likelihood that the jury has applied tire challenged instruction in a way that prevents the *328consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990). The majority’s conclusion is that a per se violation of the Eighth Amendment occurs if a jury instruction correctly states that the State bears the burden of proving aggravating circumstances beyond a reasonable doubt but fails to affirmatively state that mitigation evidence need not be proven beyond a reasonable doubt.
But this alone cannot justify reversal under controlling Eighth Amendment precedent. See Kansas v. Marsh, 548 U.S. 163, 173, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006); Walton v. Arizona, 497 U.S. 639, 651, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002); see also Smith v. Spisak, 558 U.S. 139, 130 S. Ct. 676, 175 L. Ed. 2d 595 (2010) (instructions and jury forms at penalty phase did not violate Eighth Amendment by requiring juiy unanimity as to existence of mitigating factors; instructions and forms did not explicitly advise jury mitigating circumstances need not be unanimously found). The next step must be to decide in the absence of the instruction whether there is a reasonable likelihood that the jury has applied tire challenged instruction in a way that prevents the consideration of constitutionally relevant evidence. The majority is wrong when it cuts tire analysis short and concludes the failure to simply instruct tire jury on mitigation forces an automatic reversal. 300 Kan. at 303.
The Eighth Amendment does not compel our directive in State v. Kleypas, 272 Kan. 894, 1078, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002), that any mitigating circumstance instruction must inform the jury that mitigating circumstances need not be proven beyond a reasonable doubt. See Marsh, 548 U.S. at 173 (holding Walton compelled conclusion Kansas capital sentencing scheme satisfied Eighth Amendment requirements because Kansas scheme was functionally identical to scheme found constitutional in Walton, except it provided benefit to defendants by placing no evidentiary burden on them). A finding that R. Carr’s jury instructions did not conform to the Kleypas requirement is not an adequate basis for concluding R. Carr’s federal Eighth Amendment rights were violated and reversal is required.
*329I dissent from that portion of the opinion.
Moritz, J., joins the dissenting portion of the foregoing concurring and dissenting opinion.
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