concurring in part and dissenting in part: I write separately for several reasons, initially to register my disagreement with my colleagues, who plaintively seek respect for their position that the “hard” and correct decision in this case is to overturn all of Reginald Carr s convictions and, consequently, his death sentence. 300 Kan. at 321 (Beier, J., concurring in part and dissenting in part).
Justice Beier s separate opinion boldly declares that the majority, in affirming Reginald Carr’s convictions, has opted for the easy way out by bowing to public pressure in this high profile case. While it might be satisfying to respond to this harsh and unjustified criticism, I will not waste precious judicial time and resources doing so. Suffice it to say, I feel no pressure or compulsion other than the ever-present compulsion to follow the law rather than my conscience or personal views. Ultimately, following the law, I would find that Reginald Carr received a fair trial, and I would affirm both his capital murder conviction and the sentence of death imposed by a jury comprised of 12 of his peers.
Setting aside the rhetoric of that separate opinion, my first substantive purpose in writing this separate opinion is to concur with the majority opinion. I concur because while I agree with the majority’s decision to affirm Reginald Carr’s convictions, including one capital murder conviction, I disagree with the majority’s conclusion that the district court abused its discretion in refusing to sever the defendants’ guilt phase trial. Consequently, in conducting a harmless error analysis in the guilt phase, I would not consider the joinder as error, which would effectively strengthen die majority’s affirmation of Reginald Carr’s convictions. However, even considering the joinder as error, I believe the majority properly finds any errors in the conviction phase harmless and Reginald Carr’s cumulative error argument unpersuasive in light of die incredibly overwhelming evidence of guilt. Therefore, I concur with *330the majority opinion affirming Reginald Carr s convictions, including one capital murder conviction.
My second substantive, and perhaps more significant, purpose is to dissent to the majority’s decision to reverse and remand Reginald Carr’s death sentence. Stated conversely, I would affirm the jury’s imposition of the death penalty against Reginald Carr. Specifically, I would find the district court did not err in refusing to sever the defendants’ penalty phase trial. But even considering a joinder error in the penalty phase, I would affirm the jury’s imposition of the death penalty for Reginald Carr. As I detail below, given the unusually egregious facts of this case, Holly G.’s powerful testimony, the overwhelming evidence of aggravating circumstances found by tire jury, and the lack of persuasive mitigating evidence, I would hold beyond a reasonable doubt that the jury’s decision to impose tire death penalty was not attributable to any joinder error below.
Additionally, I join that portion of Justice Biles’ separate opinion dissenting from the majority’s “alternative” holding that the district court erred in failing to instruct the jury that mitigating circumstances need not be proven beyond a reasonable doubt. As Justice Biles aptly points out, the majority’s alternative holding is dicta. I prefer to characterize it as a “belt and suspenders” approach designed to hitch up the majority’s already sagging rationale. In any event, like my colleague, I would find that this was not constitutional error and provides no basis for reversal, much less the independent basis suggested by the majority.
The district court did not abuse its discretion in refusing to sever the defendants’ guilt phase trial.
Severance should be granted under K.S.A. 22-3204 when it appears necessary to avoid prejudice and ensure a fair trial to each defendant. State v. Davis, 277 Kan. 231, 239, 83 P.3d 182 (2004) (citing State v. Aikins, 261 Kan. 346, 360, 932 P.2d 408 [1997]); see Zafiro v. United States, 506 U.S. 534, 539, 113 S. Ct. 933, 122 L. Ed. 2d 317 (1993) (“[A] district court should grant a severance . .. only if there is a serious risk that a joint trial would compromise *331a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.”).
I agree with the majority that Reginald Carr and Jonathan Carr presented antagonistic defenses. But the existence of antagonistic defenses is only one of several “ ‘factors to be considered [by the trial court] in determining whether there is sufficient prejudice to mandate severance.’ ” Davis, 277 Kan. at 240 (quoting State v. Butler, 257 Kan. 1043, 1063, 897 P.2d 1007 [1995], modified on other grounds 257 Kan. 1110, 916 P.2d 1 [1996]). Unlike the majority, I would conclude the existence of antagonistic defenses, even coupled with the exclusion of weak third-party evidence, failed to establish sufficient risk of prejudice to compel the district court to sever the trial. See Zafiro, 506 U.S. at 538-39 (noting the presence of mutually antagonistic defenses is not prejudicial per se, and severance is not compulsory, “even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district court’s sound discretion”). Consequently, I would conclude the district court did not abuse its discretion in failing to sever the guilt phase of the trial.
But, like the majority, I would conclude that if the district court erred in fading to sever the guilt phase, the error was harmless. I need not fully recount that evidence since it is more fully discussed below and in the majority’s harmless error analysis. Suffice it to say that biological evidence—including Heather’s blood on his undershorts—strongly connected Reginald Carr to the crime, as did compelling physical and circumstantial evidence—including footprints matching Reginald Carr’s at Birchwood and Reginald Carr’s attempt to flee.
The district court did not err in refusing to sever the defendants’ penalty phase trial.
Likewise, I reject that the district court erred in failing to sever the defendants’ penalty phase trial and that failure rose to an Eighth Amendment violation. The majority’s discussion finding an Eighth Amendment violation is logically flawed and, at times, difficult to follow. While I disagree with essentially every step of the majority’s analysis of this issue, I will briefly state my objections *332before turning to the harmless error issue, which, in my opinion, is where the majority’s nearly nonexistent analysis goes entirely awry.
Initially, the majority points out that Reginald Carr contends the failure to sever violated his Eighth Amendment right to individualized sentencing. Yet the majority recognizes that while the Eighth Amendment requires a jury to make an individualized sentencing determination, it does not mandate separate penalty phase proceedings for each codefendant in death penalty cases. 300 Kan. at 275-76; see also United States v. Tipton, 90 F.3d 861, 892 (4th Cir. 1996) (joint trials in death-eligible cases are not per se unconstitutional); United States v. Rivera, 363 F. Supp. 2d 814, 823 (E.D. Va. 2005) (“The defendants [in a capital case] have an Eighth Amendment right to an ‘individualized determination’ of their penalty phase sentence, however, this important right does not compel an individual penalty phase hearing.”)
Despite acknowledging that the Eighth Amendment does not compel severance, the majority proceeds to analyze whether the defendants presented “antagonistic” mitigation evidence. Without citing the statute, the majority then seemingly analyzes the penalty phase evidence under the same statutory test it applied to determine whether the trial court abused its discretion in denying severance of the guilt phase.
Not surprisingly, the majority never fully explains how partially antagonistic evidence can result in a violation of the statutory right to sever. Nor does the majority clearly state the basis for its conclusion that tire trial court erred in refusing to sever the penalty phase trial. Instead, the majority jumps from a discussion of partially antagonistic evidence to the Eighth Amendment requirement of individualized capital sentencing. But, to the extent the majority relies on the Kansas statutory framework for finding an Eighth Amendment violation, this analysis is flawed. Statutory violations do not equate to constitutional violations. See, e.g., State v. Sawyer, 297 Kan. 902, 906-07, 305 P.3d 608 (2013) (noting this court’s jurisprudence had “obscured” the analytical distinctions between a statutory argument that a judge is unfairly biased and a constitutional argument that a judge is unfairly biased and analyzing the *333two bases separately); State v. Jones, 273 Kan. 756, 766, 47 P.3d 783 (2002) (holding a violation of statute requiring a juvenile’s parents be notified of a proceeding did not rise to a constitutional violation); State v. Smallwood, 264 Kan. 69, 74-75, 955 P.2d 1209 (1998) (analyzing separately defendant’s argument that the State violated his statutory right to a speedy trial and his constitutional right to a speedy trial).
The majority also determines some mitigating evidence regarding “moral culpability” was “partially antagonistic,” although it appears to recognize that most of the two brothers’ mitigating evidence was not antagonistic. I am aware of no authority for the majority’s implied conclusion that because there is some antagonistic evidence pertaining to moral culpability, Reginald Carr’s death sentence violates the Eighth Amendment’s individualized sentencing requirement, and tire majority cites none, including the string-cited cases. See 300 Kan. at 279-80.
Similarly, the majority seizes upon a comparatively minor theme suggested by Jonathan Carr’s evidence in the penalty phase—i.e., that Reginald Carr led Jonathan Carr astray and that their sister testified Reginald Carr told her he was the shooter. The majority points out that had the brothers received separate penalty phase trials, this mitigating evidence presumably would not have been admitted at Reginald Carr’s trial. But once again, I find no support for tire majority’s implication that because this antagonistic evidence might not have been admitted in the penalty phase of a separate trial that its admission in a joint trial somehow rose to the level of a constitutional violation.
More importantly, the majority’s unsupported Eighth Amendment analysis relies heavily upon the faulty underlying premise that Reginald Carr’s jury did not follow the explicit instruction that “[a]ny evidence in this phase that was limited to only one defendant should not be considered by you as to the other defendant.” 300 Kan. at 280. Although the majority declares this case to present the “rare instance in which our usual presumption that jurors follow the judge’s instructions is defeated by logic,” it oddly fails to explain the “logic” to which that solid presumption gives way. 300 Kan. at 280. Unlike the majority, I am not skeptical of this jury ability’s to follow instructions simply because of the nature of the *334case or the “maelstrom that was [the defendants’] family.” 300 Kan. at 280. And not surprisingly, the majority’s logic overlooks that this jury had already demonstrated its ability to differentiate between evidence presented by the two brothers when it refused to convict Jonathan Carr on counts related to the Schreiber incident.
Instead, the majority vaguely offers a statement I cannot even loosely characterize as logical: “In view of the defendants’ joint upbringing in the maelstrom that was their family and their influence on and interactions with one another, including testimony that tended to show that R. Carr was a corrupting influence on J. Carr, the penalty phase evidence simply was not amenable to orderly separation and analysis.” 300 Kan. at 280.
To summarize, I simply cannot agree with the highly flawed and limited rationale offered by the majority for finding constitutional error in the refusal to sever the penalty phase trial. I would find no error and affirm Reginald Carr’s death penalty conviction.
Assuming joinder error in the penalty phase, the death penalty verdict cannot he attributed to that error.
Even if I agreed with the majority that (1) die district court erred in failing to sever the penalty phase and (2) that error resulted in an Eighth Amendment violation, I would strongly disagree with the majority’s conclusory, one-paragraph harmless-error analysis, and I would find that the juiy’s unanimous decision to render the death penalty was not attributable to any such error. Instead, Reginald Carr’s death penalty verdict must be attributed to the overwhelming evidence of extreme terror, humiliation, pain, and anguish inflicted upon the multiple victims. Simply stated, we should not overturn the juiy’s reasoned decision that this aggravating evidence was not outweighed by mitigating evidence.
Notably, the majority’s cursory harmless-error analysis fails to even mention the substantial and compelling evidence of aggravating factors found by the jury. Instead, the majority points to the “especially damning subset [of evidence] that may not have been admitted in a severed proceeding” and the “hopelessly tangled interrelationship of the mitigation cases presented by the defen*335dants” to arrive at its conclusion that the jury simply “could not have discharged its duty to consider only the evidence limited to one defendant as it arrived at their death sentences.” 300 Kan. at 281-82.
Again, the flaws in this cursory analysis are numerous. Most critically, in its rush to declare that the jury could not have done its job, the majority fails to do its own job—i.e., to consider whether the court is able to find beyond a reasonable doubt that the error viewed in the light of the record as a whole, had little, if any likelihood of changing the jury’s ultimate conclusion regarding the weight of the aggravating and mitigating circumstances. 300 Kan. at 281 (citing standard of review).
Before considering the record as a whole and the impact it should have had on the majority’s analysis, I will first remark upon the “especially damning subset of evidence” referred to by the majority. 300 Kan. at 281. This evidence has two components. One component is tire statement of the defendants’ sister, Tamika, that Reginald Carr admitted to her during a jail visit that he was the shooter. When asked about this statement on cross-examination, Tamika said: “I believe I heard him tell me something like that. I don’t remember . . . when he asked me who he shot and all that, I don’t remember who was, you know, shot by who[m].” The second component is Jonathan’s general mitigating evidence suggesting his brother was a negative influence in his life.
The majority refers to this evidence as “moral culpability” evidence and suggests that it was impossible for the jury, after hearing this evidence, to declare mercy for Reginald Carr. 300 Kan. at 278. In my view, even considering this evidence in isolation, as the majority considers it, the evidence can hardly be characterized as “especially damning.” Rather, these evidentiary components were minor in comparison to the substantial and more compelling mitigating evidence both brothers presented about the childhood abuse they suffered at the hands of others, including parental neglect and being forced to participate in each other’s beatings.
But more importantly, this “moral culpability” evidence hardly compelled the juiy to overlook everything else they heard about the defendants and their joint 3-hour crime spree, for which the *336jury had already found them equally legally culpable. Moreover, the negligible impact of Jonathan Carr’s mitigating evidence suggesting his brother had been a negative influence in his life is obvious from the jury’s refusal to declare mercy and spare Jonathan Carr instead of dealing him the same punishment as his brother. See People v. Letner, 50 Cal. 4th 99, 197, 235 P.3d 62 (Cal. 2010) (“Moreover, in light of the circumstance that the jury reached a death verdict as to both defendants, we discern even less of a possibility that tire jury improperly assigned culpability based upon one defendant’s attempt to mitigate the seriousness of his own actions by shifting accountability to his codefendant.”).
In any event, even accepting the majority’s characterization of this evidence as “especially damning,” I have no hesitation whatsoever in concluding that when viewed in light of the record as a whole it had little, if any, likelihood of changing the jury’s ultimate conclusion regarding the weight of the aggravating and mitigating circumstances.
Simply put, 12 of Reginald Carr’s peers—jurors sworn to uphold the law and impose tire death penalty if warranted—heard overwhelming and convincing evidence of heinous and atrocious acts committed by Reginald Carr. And they heard that evidence from Holly, the unintended survivor of this savage attack. It is nearly impossible to convey in a few short paragraphs the overwhelming nature of that evidence. But in order to demonstrate the severe shortcoming in the majority’s harmless error analysis, a summary is necessary.
For more than 3 hours, Reginald and Jonathan Carr inflicted their perverse form of torture on the five victims in this case, forcing their often naked captives to commit sexual acts on one another as the two intruders watched. Holly recounted that over those 3 hours she was raped once by Reginald Carr, who after raping her, grabbed her by the back, turned her around, ejaculated into her mouth, and directed her to swallow. The jury also heard Holly describe how she was twice raped by Jonathan Carr, forced to digitally penetrate herself, and forced into sexual intercourse with Heather, Brad, Aaron, and Jason.
*337When she was not being violated herself, Holly sat naked in a closet with her fellow captives, so terrified she wet herself, listening to Heather moaning in pain as she repeatedly was raped in tire same fashion. Heather s moans caused her boyfriend, Aaron, to bréale down, sobbing and crying, “[T]his shouldn’t happen this way.” Holly performed oral sex on Jason while in the closet because one of the two defendants threatened additional violence if the men could not get an erection.
Each victim also was forced to leave the Birchwood residence and travel alone with Reginald Carr to withdraw money from his or her bank accounts. Holly recounted her experience, explaining she was clothed only in a sweatshirt, and that Reginald Carr groped her vagina while they were in the car. Holly asked Reginald if he was going to kill them, and he said “no.”
But any slight hope Holly might have had that her life and the lives of her friends would be spared was dashed when they returned to the house and Reginald Carr told Holly, “[D]on’t worry. I’m not going to shoot you yet.” Carr’s threat proved true when the five victims were taken at gunpoint into the garage, and Jason, Brad, and Aaron were forced into the trunk of Aaron’s car. Jonathan Carr tiren drove Aaron’s car, with Heather seated on the passenger side, while Reginald Carr drove Jason’s truck with Holly seated on the passenger side.
The defendants then took their victims to a soccer field in a remote location. They ordered the men out of the trunk and ordered Heather and Holly out of the car. Eventually, Reginald Carr and Jonathan Carr forced each of their five victims, who were naked or partially clothed, to kneel next to each other, single file, on the snow-covered ground in below freezing temperatures. As these victims did so, surely each suspected his or her fate.
Holly testified she heard one shot, then heard Aaron pleading, and then “another shot and another one and another one” as each victim was shot, execution style, in the back of the head. Then everything went briefly gray for Holly. But even after being shot in the back of the head, Holly remained kneeling. One of the defendants lacked her in the back, causing her to fall face forward in the snow. She heard the defendants having a conversation before *338they drove off in Jason’s truck. She felt an impact as the truck ran over her.
After the two men drove off, Holly got up and checked on the others, wrapping her only remaining piece of clothing around Jason’s head in a futile attempt to save his life. And then she ran— terrified, naked, bleeding, and freezing—for over a mile to get help. Meanwhile, Reginald and Jonathan Carr, unaware that Holly had survived, returned to the home at Birchwood to steal belongings from the victims and beat Holly’s dog to death.
Unquestionably, the State proved by overwhelming and convincing evidence the aggravating circumstance that Reginald Can-committed the murders in a heinous, atrocious, or cruel manner. See K.S.A. 2013 Supp. 21-6624(f). See State v. Kleypas, 282 Kan. 560, 569, 147 P.3d 1058 (2006) (murder is committed in an especially heinous, atrocious, or cruel manner for purposes of the death penalty aggravating factor when the victim suffers serious physical abuse or mental anguish before death, and mental anguish includes a victim’s uncertainty as to his or her ultimate fate).
Nor can there be any question the State overwhelmingly proved the other three aggravating circumstances found by the jury: (1) Reginald Carr “knowingly or purposely killed or created great risk of death to more than one person.” K.S.A. 2013 Supp. 21-6624(b); (2) Reginald Carr committed capital murder so he or another could receive money or items of value. K.S.A. 2013 Supp. 21-6624(c); and (3) Reginald Carr committed capital murder to avoid arrest or prosecution. See K.S.A. 2013 Supp. 21-6624(e).
The majority gives lip service to the standard of review—i.e., to consider whether beyond a reasonable doubt the error viewed, in the light of the record as a whole, had little, if any likelihood of changing the jury's ultimate conclusion regarding the weight of the aggravating and mitigating circumstances. But it entirely fails to conduct the analysis. Had it done so, I do not believe it could arrive at any conclusion other than that the severance error, if any, had little, if any, likelihood of changing the juiy’s ultimate conclusion. Instead, the court should hold that this jury, which demonstrated its willingness to independently assess the respective culpability of each defendant, appropriately conducted the required weighing of *339aggravating and mitigating circumstances and concluded Reginald Carr deserved the penalty of death.
The people of Kansas, through the legislature, enacted a death-penalty scheme that comports with the Eighth Amendment and demonstrates the people’s collective belief that death is the appropriate punishment for murder in certain circumstances. I am convinced Reginald Carr received a fair trial and that the jury imposed a sentence of death because it understood that his horrendous crime called for that sentence. Because I would affirm Reginald Carr s death sentence, I dissent.