State v. Cheever - (

MODIFIED OPINION1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 99,988

STATE OF KANSAS,
Appellee,

v.

SCOTT D. CHEEVER,
Appellant.

SYLLABUS BY THE COURT

1.
Defendants who testify on their own behalf open themselves not only to
cross-examination but also to rebuttal testimony concerning both the substance of their
testimony and their credibility.

2.
Retroactive application of K.S.A. 2013 Supp. 21-5402(d) excluding felony murder
as a lesser included offense of capital murder in a capital case does not violate a capital
defendant's due process rights or the constitutional prohibition against ex post facto laws.

1
REPORTER'S NOTE: Opinion No. 99,988 was modified by the Supreme Court on
July 20, 2017, in response to defendant's motion for rehearing or modification filed
August 12, 2016. The original opinion without the modification will not be published in
the bound volumes of the Kansas Reports.
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3.
Appellate issues and arguments supporting them must be advanced initially in a
brief. A motion is an inappropriate vehicle to raise or argue an appellate issue for the first
time.

4.
The Eighth Amendment to the United States Constitution does not require the
district court to instruct a capital jury that mitigating circumstances need not be proved
beyond a reasonable doubt.

5.
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. Under the facts
of this case and the applicable standard of review, the district court's failure to instruct the
jury about the burden of proof on mitigators was not clearly erroneous.

6.
K.S.A. 2015 Supp. 21-6619(b) imposes a mandatory exception in death penalty
appeals to various statutes, rules, and prudential practices barring consideration of
unpreserved issues.

7.
A party cannot raise a challenge to the constitutionality of a statute if the claimed
defect does not apply to that party.

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8.
Standing is a component of the case-or-controversy limitation on judicial power
under the doctrine of separation of powers.

9.
Because the Kansas Constitution's framework limits the judicial power to actual
cases and controversies, Kansas courts do not have the power to give advisory opinions.

10.
To meet the case-or-controversy requirement, a party must have standing; the
issue cannot be moot; the issue must be ripe; and the issue cannot present a political
question.

11.
The standing requirement is a constitutional limitation on this court's power.

12.
Under the Sixth and Fourteenth Amendments to the United States Constitution, a
defendant in a capital criminal case has a right to an impartial jury.

13.
A juror who will automatically vote for the death penalty in every case will fail in
good faith to consider the evidence of aggravating and mitigating circumstances as the
court's instructions require.

14.
The proper standard for determining when a prospective juror may be excluded for
cause because of his or her views on capital punishment is whether the juror's views
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would prevent or substantially impair the performance of his or her duties as a juror in
accordance with the court's instructions and the juror's oath.

15.
It is the duty of a trial court to see that a jury of competent, fair, and impartial
persons is impaneled.

16.
K.S.A. 22-3410(2)(i) provides that a prospective juror may be challenged for
cause when his or her state of mind with reference to the case or parties prevents the juror
from acting impartially and without prejudice to the substantial rights of any party.

17.
Because only the district court is in a position to view the demeanor of prospective
jurors during voir dire, a district court's ruling on a challenge for cause will not be
disturbed on appeal unless it is clearly erroneous or amounts to an abuse of discretion.

18.
When a defendant appeals a strike for cause of a panel member prompted by the
prospective juror's opinion on the death penalty, the question before the appellate court is
not whether it would have agreed with a district judge's decision but whether the district
judge's decision is fairly supported by the record.

19.
An impartial jury consists of jurors who will conscientiously find the facts and
apply the law.

4
20.
Section 7 of the Kansas Constitution Bill of Rights provides no greater protection
than that provided by K.S.A. 43-156.

21.
Prospective jurors cannot be discriminated against on the basis of their religious
belief or lack of belief, but they can be excluded from jury service when their belief or
nonbelief makes it impossible for them to act impartially under the rule of law.

22.
The Eighth Amendment of the United States Constitution prohibits giving the jury
misleading information that minimizes its role in the death penalty process.

23.
A trial court should avoid any mention of a defendant's right to appeal.

24.
Judicial comments that are not instructions to the jury are reviewed on appeal
under judicial misconduct standards.

25.
In cases alleging judicial misconduct, the court's standard of review is unlimited. It
must look to the particular facts and circumstances of the case. The question is whether
the defendant's substantial rights to a fair trial were prejudiced by the district judge's
statements. The defendant bears the burden of showing his or her substantial rights were
prejudiced.

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26.
Capital defendants are entitled to a jury determination of any fact on which the
legislature conditions an increase in their maximum punishment. A defendant's age of at
least 18 years old at the time of the crime is a fact necessary to the defendant's eligibility
for the death penalty in Kansas, and proof of that fact is therefore within the scope of
protection provided under the Sixth Amendment to the United States Constitution.

27.
Harmless error analysis applies to error in omitting an element of a defendant's
age from jury instructions.

28.
Under K.S.A. 21-4624(c), any evidence relevant to the question of sentence that
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.

29.
The standard of review and the ultimate question that must be answered with
regard to whether prosecutorial misconduct in the penalty phase of a capital trial was
harmless is whether the court is able to find beyond a reasonable doubt that the
prosecutorial misconduct, viewed in the light of the record as a whole, had little, if any,
likelihood of changing the jury's ultimate conclusion on the weight of aggravating and
mitigating circumstances. The overwhelming nature of the evidence is a factor to be
considered, although its impact is limited.

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30.
When considering a claim that cumulative error infected the penalty-phase
proceeding, this court must consider whether it is able to find that the total cumulative
effect of the errors, 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. The degree of certainty by which this court
must be persuaded turns on whether any of the errors infringe upon a right guaranteed by
the United States Constitution. The overwhelming nature of the evidence is a factor to be
considered, although its impact is limited. The question before this court is not what
effect the cumulative error generally might be expected to have upon a reasonable jury
but, rather, what effect it had upon the actual sentencing determination in the case on
review.

31.
Although certain guilt-phase errors may not individually or collectively require
reversal of a conviction, those errors may be so compelling that they affect a sentencing
determination when the same jury has decided both guilt and sentence.

Appeal from Greenwood District Court; MICHAEL E. WARD, judge. Opinion on remand filed July
22, 2016. Modified opinion on remand filed July 20, 2017. 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.

Stephen R. McAllister, solicitor general, argued the cause, and Kristafer R. Ailslieger, deputy
solicitor general, Clay Britton, assistant solicitor general, Steve Six, former attorney general, and Derek
Schmidt, attorney general, were with him on the briefs for appellee.

Stephen Douglas Bonney, of ACLU Foundation of Kansas, of Kansas City, Missouri, and
Catherine M.A. Carroll and Albinas J. Prizgintas, of Wilmer Cutler Pickering Hale and Dorr LLP, of
7
Washington, D.C., were on the brief for amici curiae American Civil Liberties Union and ACLU
Foundation of Kansas.

The opinion of the court was delivered by

ROSEN, J.: This case comes before us after the United States Supreme Court
vacated our decision in State v. Cheever, 295 Kan. 229, 284 P.3d 1007 (2012), vacated
and remanded 571 U.S. ___, 134 S. Ct. 596, 187 L. Ed. 2d 519 (2013), and remanded for
further proceedings.

In our decision, we had held that defendant Scott D. Cheever did not waive his
privilege against self-incrimination under the Fifth Amendment to the United States
Constitution by presenting a voluntary intoxication defense to the capital murder charges
against him. 295 Kan. at 251. The United States Supreme Court disagreed and held that
the rebuttal testimony presented by the State in the form of the expert opinion of Dr.
Michael Welner was admissible. Kansas v. Cheever, 571 U.S. ___, 134 S. Ct. 596, 602,
187 L. Ed. 2d 519 (2013). As the Court noted, because we had ruled that Welner should
not have been allowed to testify at all, we did not consider whether the testimony he gave
exceeded the scope of rebuttal allowed by the Fifth Amendment or by Kansas evidentiary
rules; and the Court did not address the issue. 134 S. Ct. at 603.

On remand, we asked the parties to address the scope-of-rebuttal issue. Briefs
were received and arguments heard. After consideration, we hold that Welner's
testimony, while questionable in form, did not, in substance, exceed the proper scope of
rebuttal, either constitutionally or under state evidentiary rules. We further hold that none
of the remaining issues raised on appeal require reversal or remand, and, accordingly, we
affirm Cheever's convictions and sentences.

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 The facts of this case were set out at length in our earlier decision, Cheever,
295 Kan. at 235-40, and we therefore add facts only as necessary to our analysis of the
issues.

Appellate proceedings in this case followed Cheever's conviction of one count of
capital murder for the killing of Greenwood County Sheriff Matthew Samuels and four
counts of attempted capital murder for firing at other law enforcement officers. Direct
appeal to this court was automatic because the jury had sentenced Cheever to death on
the capital offense. See K.S.A. 21-4627(a).

GUILT PHASE

Proper Rebuttal Testimony

Cheever's objections to the content of Welner's testimony revolve primarily
around Welner's statement that Cheever emulated an outlaw lifestyle and his alleged
implication that Cheever had an antisocial personality disorder. Taking as our standard
both the guidance set out in the United States Supreme Court's decision and our own
oft-stated rubric for reviewing challenges regarding the appropriate scope of rebuttal, see,
e.g., State v. Sitlington, 291 Kan. 458, 464, 241 P.3d 1003 (2010) (trial judge has broad
discretion in determining use, extent of relevant evidence in rebuttal), we hold that the
trial judge's admission of Welner's testimony was within the broad discretion granted
him.

First, and significantly, our measure of the appropriate scope of rebuttal in this
case must take into account not just the testimony presented by Cheever's expert on the
topic of his methamphetamine intoxication, but also Cheever's own testimony concerning
his past use of the drug and the events leading to and constituting the crimes. Much of

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Welner's testimony concerning details of the crimes, and Cheever's actions constituting
them, was responsive to Cheever's own testimony. Having taken the stand, Cheever
opened himself to rebuttal testimony just as he opened himself to cross-examination
concerning both the substance of his testimony and his credibility as a witness. Cheever,
134 S. Ct. at 601.

But concluding that Welner's testimony was responsive in and of itself does not
insulate the testimony from appellate scrutiny if the testimony was otherwise
inadmissible. Cf. State v. Everett, 296 Kan. 1039, 1045, 297 P.3d 292 (2013) (evidence
admitted in rebuttal to other evidence under an "'open the door'" rule is not an exception
permitting evidence of other crimes or civil wrongs to be admitted independent of K.S.A.
60-455); State v. Cosby, 285 Kan. 230, 248-49, 169 P.3d 1128 (2007) (K.S.A. 60-447[b]
applies to rebuttal evidence). Generally, a defendant does not put his or her character
"truly in issue" simply by asserting an intoxication defense. State v. Bowers, 218 Kan.
736, 737, 545 P.2d 303 (1976); cf. State v. Mader, 261 Kan. 280, 283, 931 P.2d 1247
(1997) (when defendant relies upon self-defense, his or her attempt to prove victim was
aggressor does not, standing alone, place character of victim in issue). And K.S.A. 60-
447(b)(ii) provides that "evidence of a trait of an accused's character[,] . . . if offered by
the prosecution to prove guilt, may be admitted only after the accused has introduced
evidence of his or her good character." (Emphasis added.)

Characterizing portions of Welner's testimony as bad character evidence, Cheever
argues that the testimony was inadmissible under K.S.A. 60-447(b)(ii) because he never
introduced any evidence of his good character. The State appears to concede that Cheever
did not introduce evidence of his good character, but it responds that Cheever "opened
the door" to the complained-of testimony. The State asserts that Cheever and his expert
both testified on the same or similar points addressed by Welner.

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 We believe the State was too hasty in conceding that Cheever did not introduce
evidence of his good character. If he did so, the State's defense of this point with its open-
the-door argument is unnecessary. In our view, Cheever downplays his own direct
testimony unconvincingly. During direct, Cheever discussed two letters that he wrote
shortly after the shooting death of Samuels. In the letters, which the State admitted
without objection during its case-in-chief and to which Cheever continues to have no
objection on appeal, Cheever wrote to two individuals—Nathan Fife and Crystal Mackey.
The bulk of each letter is braggadocio, in which Cheever tells a glorified version of the
circumstances surrounding the shooting and his arrest. The letters include multiple
damning admissions. He admits that he intentionally waited hours for "the cops" to arrive
and that he "blew [Samuels] back down the stairs" with a .44 Magnum pistol. In the
course of these recitations, Cheever makes fleeting reference to being an "outlaw until
they bury me" and to his willingness to "do it again in a heartbeat."

In Cheever's letter to Fife, he bragged:

"What's up my boy? Yeah I fucked up big time! It was fucking intense though.
I'd do it again in a heartbeat. . . . I had a Super Blackhawk [.]44 mag and a [.]22
competition target pistol! . . . They shot 4 teargas things in there and that wasn't shit so
they came piling in. I blew the first one back down the stairs, and the second one but that
was all the [.]44 shells I had left on me . . . . I'm pretty much fucked! Fuck 'em, I'm still
an outlaw until they bury me.

". . . Slates out there being a straight bitch. I was going to burn him [and] Carol
out of Virgil but I had to shoot the sheriff instead!"

To Mackey, Cheever wrote:

"Anyways, [Billy] tried to get a front and call the cops (or get the cops called)
thinking I'd just roll over and take it. I seen that shit coming for 5 hrs!!! But I said fuck
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 it . . . gonna have to shoot me. Pussies couldn't aim too good though so here I am! Stuck
like Chuck! Damn it was intense Mackey. . . .

". . . And they wonder why a fucking young crankster gangster tends to snap
every once in a while."

The State authenticated the letters through Fife and Mackey and introduced the
letters without further embellishment.

Once Cheever was on the stand, during his direct examination, the following
exchange occurred between him and his lawyer:

"[Defense counsel]: This letter to Fife, Scott, it's a horrible letter.

"[Cheever]: Yeah.

"[Defense counsel]: You see that now?

"[Cheever]: Yeah. (Nods head.)

"[Defense counsel]: The person that wrote this letter I think could be accurately
termed a monster.

"[Cheever]: Yeah.

"[Defense counsel]: Would you disagree with that?

"[Cheever]: I seen it then, too. I mean, I was even told by my attorneys at that
time, I think even you told me back then, 'Don't be writing no letters, don't be doing
anything.' And I just, I mean, at that time, I mean, I was at the bottom. I mean, I'm not
thinking about any of that. I don't even care, I mean, what the repercussions would be.
I'm just trying to show off for my buddy, you know, I mean.
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 "[Defense counsel]: You don't even care what? I didn't hear that.

"[Cheever]: About anything. I'm not thinking about how any of the Samuels feel,
I'm not thinking about my family, I'm not thinking about myself. It's just crazy, crazy
time.

"[Defense counsel]: The letter to Crystal?

"[Cheever]: Yeah, same deal.

"[Defense counsel]: Not much better.

"[Cheever]: No, just putting on that persona, playing that role. I mean—

"[Defense counsel]: What role?

"[Cheever]: Just how everybody in that area is, I mean, in that type of
community just everybody's drug addicts, and just—just I don't know, showing off for
'em, I guess.

"[Defense counsel]: Are you sorry you wrote those letters now?

"[Cheever]: Yeah. Basically yeah. (Nods head.)

"[Defense counsel]: 'Cause they make you look bad?

"[Cheever]: No. Just it's bad, I mean, the whole dialogue—

"[Defense counsel]: Sorry that somebody found 'em and you got caught?

"[Cheever]: No. I mean, just for my family, for the Samuels family, just the
whole deal. They look at that person, and I don't know, it's real hard to hate that person—

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or real easy to hate that person. And just it's not good to be like that, I mean, I can't really
explain it.

....

"[Defense counsel]: The letter that you wrote to Fife, you don't seem sorry as to
what's happened to Sheriff Samuels, you don't seem sorry—

"[Cheever]: No.

"[Defense counsel]: —for killing him in that letter. Is that accurate?

"[Cheever]: No.

"[Defense counsel]: You didn't seem sorry?

"[Cheever]: At that time, no, I didn't even think about it. I wasn't thinking about
nothing, except—

"[Defense counsel]: You don't seem very broken up in the letter to Mackey?

"[Cheever]: No.

"[Defense counsel]: To Crystal?

"[Cheever]: (Shaking head.)

"[Defense counsel]: Are you sorry now?

"[Cheever]: Yeah. (Nods head.) Extremely sorry.

"[Defense counsel]: What's changed?

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 "[Cheever]: Just it takes awhile. I mean, when you're at that point, like I said,
you're down as well, clear at the rock bottom. I was probably as low as you could get
almost. And you're not looking up here (indicating), you know, where everybody else is
at. You're not even, I don't know—don't care about nothing, I mean. Absolutely no hope
whatsoever, and just—at some point, I mean, it gets a little bit better, you start to come
out of it, you know, the drugs wear off, your mind goes back, you kind of get into a
routine in jail, and just things happen. I mean, you get to looking at life and grew up a
little bit, and years go on, and changes."

Through his testimony, Cheever effectively commented on his own opinion of his
character at the time of the murder and later. Cheever disavowed his earlier outlaw
persona. Moreover, Cheever stated that he was simply "putting on that persona" and
"showing off." Cheever clearly attempted to cast in a different light statements he had
made in the letters. In effect, Cheever's statement to the jury was that, but for the
methamphetamine, he was a person of good character. Cheever also addressed his
apparent lack of remorse and how he had changed.

At a minimum, Cheever commented on his bad character at the time of the
murder, i.e., his outlaw persona and lack of remorse, and contrasted it with his later
reformation into a more sensitive, and certainly remorseful, individual. Accordingly, the
State was permitted to follow up on those same points with Cheever during cross-
examination and with Welner during rebuttal, and K.S.A. 60-447(b)(ii) was no bar. It
would be unfair to permit Cheever to testify about his bad character at the time of the
murder and to attribute it to his methamphetamine use while refusing to allow the State to
explore that testimony with Cheever and rebut it with expert testimony. The prosecutor
fairly questioned Cheever during cross-examination about the outlaw persona he had
essentially disavowed on direct examination. And with Cheever's character evidence
before the jury, Welner could connect to that same character evidence and reasonable
inferences to be drawn from Cheever's conduct as part of rebuttal testimony.

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 That said, we also observe that Welner's use of the first-person narrative to recount
the crimes from Cheever's point of view in order to demonstrate Welner's conclusions
about Cheever's mental abilities during the crimes was susceptible to an interpretation by
the jury that would have been beyond the scope of appropriate testimony by Welner.
Welner could have described Cheever's actions in the third person and then stated his
own conclusions about what those actions indicated about Cheever's mental processes.
We conclude that was the information he intended to relay. But by describing Cheever's
actions and thoughts as though Cheever himself were relating them, he implied that he
knew what Cheever was actually thinking as the events unfolded, a fact for which there
was inadequate supporting evidence. While we are confident the jury was not misled by
Welner's form of communication, that may not be so under a different set of facts and
circumstances, and we discourage the use of the first-person narrative form in future
cases.

Finally, we acknowledge that Welner never testified explicitly that he had
diagnosed Cheever with antisocial personality disorder. As a consequence, we need not
express an opinion on the use of alternative diagnoses as rebuttal evidence to mental
status defenses.

Having concluded that Welner's testimony does not provide a basis for reversing
the capital murder and attempted capital murder convictions in this case, we turn to the
issues remaining in his appeal.

Felony-Murder Instruction

In response to Cheever's argument that the trial court should have instructed the
jury that felony murder was a lesser included offense of capital murder, we held in our
16
earlier decision in this case that felony murder was a lesser included offense of capital
murder and that such instruction must be given when the evidence warrants it. Cheever,
295 Kan. at 259. Following that decision, the Kansas Legislature adopted an amendment
to K.S.A. 2012 Supp. 21-5402 by which it declared that felony murder was not a lesser
included offense of capital murder. K.S.A. 2013 Supp. 21-5402(d). In State v. Gleason,
299 Kan. 1127, 1160-61, 329 P.3d 1102 (2014), rev'd and remanded sub nom. Kansas v.
Carr, 577 U.S. ___, 136 S. Ct. 633, 193 L. Ed. 2d 535 (2016), we held the retroactive
application of the amendment to cases pending at the time of its adoption did not offend
due process or violate the prohibition against ex post facto laws of the United States
Constitution. See also State v. Carr, 300 Kan. 1, Syl. ¶ 31, 331 P.3d 544 (2014), rev'd
and remanded 577 U.S. ___, 136 S. Ct. 633, 193 L. Ed. 2d 535 (2016) (ruling in Gleason
eliminates any need to address argument that a lesser included offense instruction for
felony murder was supported by the evidence admitted at trial); State v. Carr, 300 Kan.
340, Syl. ¶ 32, 329 P.3d 1195 (2014) (same), rev'd and remanded 577 U.S. ___, 136 S.
Ct. 633, 193 L. Ed. 2d 535 (2016). The reasoning of the Gleason and Carr cases applies
with equal force and effect to this case and requires us to conclude that Cheever was not
entitled to a felony-murder lesser included offense instruction. The trial judge did not err
when he did not give one.

PENALTY PHASE

In his original appellate brief, Cheever also raised several issues with respect to
the penalty phase of his trial. We decided some of those issues and provided guidance on
others in our prior decision. See Cheever, 295 Kan. at 259-73. Cheever continues to press
issues left undecided in our earlier decision, and we discuss those issues now.

Mitigating Circumstances Instructions

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 In order to fully address Cheever's challenge to the mitigating circumstances
instructions, it is necessary to walk through some of the procedural history of this case
and inspect the issues and arguments raised. We begin with the issue and argument
contained in Cheever's original brief.

In his original brief filed with this court in 2010, Cheever argued that the
mitigating circumstances instructions used in his case "prevented the jury from properly
considering and giving effect to mitigating circumstances, in violation of [his] rights
under the Eighth and Fourteenth Amendments to the United States Constitution."
Cheever asserted that the instructions failed to inform the jury that mitigating
circumstances need not be proven beyond a reasonable doubt, and thus there existed a
reasonable likelihood that a juror may have failed to consider mitigating circumstances as
part of the sentencing decision. Throughout his argument, Cheever relied on the Eighth
and Fourteenth Amendments to the United States Constitution and United States
Supreme Court caselaw interpreting those amendments. He cited State v. Kleypas,
272 Kan. 894, 40 P.3d 139 (2001), cert denied 537 U.S. 834 (2002), and State v. Scott,
286 Kan. 54, 183 P.3d 801 (2008), only as cases that are "[c]onsistent with [United States
Supreme Court] decisions" interpreting the Eighth and Fourteenth Amendments.

In our 2012 decision, we did not reach the merits of this issue because we had
reversed and remanded for a new trial on other grounds. See Cheever, 295 Kan. at 233,
265-66. We did, however, direct the trial court to use the most current version of PIK
Crim. 3d 56.00-D (2008 Supp.) in any retrial. That PIK provision included language
telling the jury that mitigating circumstances need not be proven beyond a reasonable
doubt. See 295 Kan. at 266.

In 2014, we decided the same issue Cheever raised in his original brief in three
other cases. In each case, we concluded that the failure of the district court to instruct the
18
jury that mitigating circumstances need not be proven beyond a reasonable doubt
required vacating each appellant's death sentence under the Eighth Amendment.
Carr, 300 Kan. at 369-70; Carr, 300 Kan. at 303; Gleason, 299 Kan. at 1197. After the
State filed a petition for writ of certiorari in each case and those petitions were granted,
we—with the consent of both Cheever and the State—stayed the proceedings in this case
pending disposition of the three cases by the United States Supreme Court. That
resolution came in January 2016 when the Court issued Kansas v. Carr, 577 U.S. __,
136 S. Ct. 633, 642-44, 193 L. Ed. 2d 535 (2016), and vacated this court's judgment with
respect to the need for a burden-of-proof instruction on mitigating circumstances under
the Eighth Amendment. In February 2016, we lifted the stay in this case.

Six days after the stay was lifted, Cheever filed a Motion for Determination that
Instructional Error Requires Reversal of [his] Sentence of Death on State Law Grounds.
In his motion, Cheever sought the following relief:

"- Hold that Kansas law requires that the trial court instruct a penalty phase jury
in a capital case that a mitigating circumstance need not be proved beyond a reasonable
doubt in order to be considered in the weighing process, and

"- Hold that the trial court's failure, in this case, to give that instruction requires
reversal of [his] sentence of death because the instructions, when considered as a whole,
created a reasonable likelihood that the jurors applied a beyond a reasonable doubt
standard to his proffered mitigation evidence, contrary to Kansas law."

After receiving an extension of time to respond, the State filed a response in which
it argued that Cheever had waived any state law argument by not raising it in his original
brief. Cheever filed a reply several days later, asserting that he had not waived any
argument rooted in state law. According to Cheever, he had presented a state law
argument in his original brief when he argued that reversal was required under Kleypas.

19
 We disagree with Cheever on this point. Cheever's claim in his 2010 brief relied
exclusively on the Eighth and Fourteenth Amendments, stating only that Kleypas and
Scott were in line with precedent developed in other courts. He did not argue that Kleypas
set up an independent state law framework to support his claim.

Turning to the propriety of raising a new issue in a motion, we look first to our
Rules of Appellate Practice.

Appellate motions are governed by Supreme Court Rule 5.01 (2015 Kan. Ct. R.
Annot. 34). A motion must be limited to a single subject and "must state with
particularity the ground for the motion and the relief or order sought." Rule 5.01(a). A
party may serve and file a response within 7 days after being served with a motion.
Rule 5.01(c). There is no rule permitting a reply to a response to a motion.

Rules 6.01 through 6.10 (2015 Kan. Ct. R. Annot. 40-59) pertain to appellate
briefs. See Rule 6.01(b) (2015 Kan. Ct. R. Annot. 40) (brief filing schedule); 6.02 (2015
Kan. Ct. R. Annot. 41) (content of appellant's brief); 6.05 (2015 Kan. Ct. R. Annot. 49)
(reply brief). Rule 6.09(b) (2015 Kan. Ct. R. Annot. 53) sets forth the procedure by which
a party may inform the court by letter of additional persuasive or controlling authority
that has some bearing on an issue or issues raised in a brief.

The rules governing appellate motions and briefs operate together when a party
wishes to raise a new issue not contained in the original appellate brief. See State v.
Molina, 299 Kan. 651, 664, 325 P.3d 1142 (2014) (granting defendant's motion to file
supplemental brief raising new issue); see also State v. Tague, 296 Kan. 993, 1011, 298
P.3d 273 (2013) (motion to file supplemental brief submitted after oral argument not

20
timely); cf. Gleason, 299 Kan. at 1156 (granting State's motion to file supplemental brief
addressing legislative amendments).

We have held that appellate counsel must set forth all arguments within a brief.
Ferguson v. State, 276 Kan. 428, 449-50, 78 P.3d 40 (2003) (citing Rule 6.02 and
Rule 6.03). By extension, all issues must also be contained within the briefs. See State v.
Nece, 303 Kan. 888, 897, 367 P.3d 1260 (2016) (argument not briefed deemed waived
and abandoned); State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013) (issue not
briefed by appellant deemed waived and abandoned); State v. Greever, 286 Kan. 124,
131-32, 183 P.3d 788 (2008) (recognizing exception; "if the issue is raised on remand, it
is preserved on further appeal"); cf. State v. Littlejohn, 298 Kan. 632, Syl. ¶ 8, 316 P.3d
136 (2014) (appellate courts will not consider new issues raised for first time in Rule
6.09[b] letter). But see State v. Ford, 302 Kan. 455, 463, 353 P.3d 1143 (2015) (court
may correct illegal sentence at any time; subject matter jurisdiction may be raised at any
time).

These authorities demonstrate that Cheever has chosen the wrong procedural
vehicle to obtain his requested relief. A motion cannot be used as an end run around our
rules of appellate procedure. We deny Cheever's motion.

This decision does not, however, end our consideration of the merits of the issue
Cheever attempts to raise for the first time in his motion. Because this is a death penalty
case, K.S.A. 2015 Supp. 21-6619 applies. Under K.S.A. 2015 Supp. 21-6619(a), any case
in which a defendant is convicted and sentenced to death is "subject to automatic review
by and appeal to the supreme court of Kansas in the manner provided by the applicable
statutes and rules of the supreme court governing appellate procedure." In addition,
K.S.A. 2015 Supp. 21-6619(b) states that we "shall consider the question of sentence as
well as any errors asserted in the review and appeal and shall be authorized to notice
21
unassigned errors appearing of record if the ends of justice would be served thereby."
(Emphasis added.) And this court is "authorized to enter such orders as are necessary to
effect a proper and complete disposition of the review and appeal." K.S.A. 2015 Supp.
21-6619(d). We have recognized this statutory authorization not only to identify error,
but also to lay to rest whether error occurred at all. See Carr, 300 Kan. at 44-49 (under
authority of K.S.A. 2013 Supp. 21-6619[b] analyzing "unassigned potential errors" and
concluding no error occurred). In addition, Cheever's failure to comply with our rules is
not an absolute procedural bar to our reaching the issue because doing so serves the "ends
of justice." Cf. State v. Adams, 283 Kan. 365, 367, 153 P.3d 512 (2007) (appellate court
has power to address unraised issues in exceptional circumstances, where consideration
of issue necessary to serve ends of justice or prevent denial of fundamental rights). Under
the unique circumstances of this case and in the interest of judicial economy, we elect to
reach the issue raised in Cheever's motion.

Having disposed of procedural obstacles to our consideration of the merits of the
mitigating circumstances instructions issue, we move to substance. And, before
addressing the state law basis for relief relied upon in Cheever's motion, we address his
original claim rooted in the Eighth Amendment.

In Kansas v. Carr, the United States Supreme Court rejected this court's
"conclusion that the Eighth Amendment requires capital-sentencing courts in Kansas 'to
affirmatively inform the jury that mitigating circumstances need not be proven beyond a
reasonable doubt.'" 136 S. Ct. at 642 (quoting Gleason, 299 Kan. at 1197). The Court also
rejected any notion that "even if an instruction that mitigating evidence need not be
'proven beyond a reasonable doubt' is not always required, it was constitutionally
necessary in these cases to avoid confusion." Kansas v. Carr, 136 S. Ct. at 642. Noting
that constitutional error occurs with respect to capital-sentencing instructions only if there
is a "'reasonable likelihood that the jury has applied the challenged instruction in a way
22
that prevents the consideration of constitutionally relevant evidence,'" the Court
concluded that the "alleged confusion stemming from the jury instructions used at the
defendants' sentencings does not clear that bar." 136 S. Ct. at 642-43 ("A meager
'possibility' of confusion is not enough."). The Court explained:

"As an initial matter, the defendants' argument rests on the assumption that it
would be unconstitutional to require the defense to prove mitigating circumstances
beyond a reasonable doubt. Assuming without deciding that that is the case, the record
belies the defendants' contention that the instructions caused jurors to apply that standard
of proof. The defendants focus upon the following instruction: 'The State has the burden
to prove beyond a reasonable doubt that there are one or more aggravating circumstances
and that they are not outweighed by any mitigating circumstances found to exist.'
[Citation omitted.] The juxtaposition of aggravating and mitigating circumstances, so
goes the argument, caused the jury to speculate that mitigating circumstances must also
be proved beyond a reasonable doubt. [Citation omitted.] It seems to us quite the
opposite. The instruction makes clear that both the existence of aggravating
circumstances and the conclusion that they outweigh mitigating circumstances must be
proved beyond a reasonable doubt; mitigating circumstances themselves, on the other
hand, must merely be 'found to exist.' That same description, mitigating circumstances
'found to exist,' is contained in three other instructions, App. to Pet. for Cert. in No.
14-452, at 133 (Instrs. 7, 9, and 10) (emphasis added)—unsurprisingly, since it recites the
Kansas statute, see Kan. Stat. Ann. § 21-4624(e) (1995). 'Found to exist' certainly does
not suggest proof beyond a reasonable doubt. The instructions as a whole distinguish
clearly between aggravating and mitigating circumstances: 'The State has the burden to
prove beyond a reasonable doubt that there are one or more aggravating circumstances
. . . ,' and the jury must decide unanimously that the State met that burden. App. to Pet.
for Cert. in No. 14-452, at 133 (Instrs. 8 and 10) (emphasis added). 'Mitigating
circumstances,' on the other hand, 'do not need to be found by all members of the jury' to
'be considered by an individual juror in arriving at his or her sentencing decision.' Id., at
131 (Instr. 7). 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

23
 would that make much sense, since one of the mitigating circumstances is (curiously)
'mercy,' which simply is not a factual determination.

"We reject the Kansas Supreme Court's decision that jurors were 'left to speculate
as to the correct burden of proof for mitigating circumstances.' [Citation omitted.] For the
reasons we have described, no juror would reasonably have speculated that mitigating
circumstances must be proved by any particular standard, let alone beyond a reasonable
doubt. The reality is that jurors do not 'pars[e] instructions for subtle shades of meaning
in the same way that lawyers might.' [Citation omitted.] The instructions repeatedly told
the jurors to consider any mitigating factor, meaning any aspect of the defendants'
background or the circumstances of their offense. Jurors would not have misunderstood
these instructions to prevent their consideration of constitutionally relevant evidence."
Kansas v. Carr, 136 S. Ct. at 643-44.

The mitigating circumstances instructions at issue in Kansas v. Carr are not
meaningfully distinguishable from those used during Cheever's penalty-phase
proceeding. Accordingly, the decision in Kansas v. Carr forecloses any relief under the
Eighth Amendment for Cheever.

We now turn to the state law issue Cheever raised in his motion. Notwithstanding
the United States Supreme Court's decision in Kansas v. Carr, Cheever contends that
Gleason, 299 Kan. 1127, relied on state law and merely "reflected Eighth Amendment
concerns." According to Cheever, the Gleason decision "was rooted in the unique
provisions of Kansas law" and was ultimately based on state statutory law, specifically
K.S.A. 21-4624(e). But see Kansas v. Carr, 136 S. Ct. at 641 (Gleason decision "leaves
no room for doubt that it was relying on the Federal Constitution").

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

24
 "If, by unanimous vote, the jury finds beyond a reasonable doubt that one or
more of the aggravating circumstances enumerated in K.S.A. 21-4625 and amendments
thereto exist and, further, that the existence of such aggravating circumstances is not
outweighed by any mitigating circumstances which are found to exist, the defendant shall
be sentenced to death; otherwise, the defendant shall be sentenced to life without the
possibility of parole. The jury, if its verdict is a unanimous recommendation of a sentence
of death, shall designate in writing, signed by the foreman of the jury, the statutory
aggravating circumstances which it found beyond a reasonable doubt. If, after a
reasonable time for deliberation, the jury is unable to reach a verdict, the judge shall
dismiss the jury and impose a sentence of life without the possibility of parole and shall
commit the defendant to the custody of the secretary of corrections."

In Gleason, we explained:

"Because K.S.A. 21-4624 expressly burdens the State with proving the existence
of aggravating circumstances beyond a reasonable doubt but places no evidentiary burden
regarding the existence of mitigating circumstances on the defendant beyond the burden
of production, we reiterate our holding in Kleypas and Scott that capital juries in Kansas
must be informed that mitigating circumstances need not be proven beyond a reasonable
doubt. Because the instruction given in this case failed to do so, it was erroneous."
Gleason, 299 Kan. at 1196-97.

Cheever relies on this passage and its citation to K.S.A. 21-4624 as support for his
position that Gleason, Scott, and Kleypas demonstrate the existence of a state law
framework for considering a claim of this particular instructional error, one independent
of the Eighth Amendment basis that has now been rejected in Kansas v. Carr.

In Kleypas, this court considered whether the penalty-phase instructions prevented
the jury from considering mitigating circumstances. Specifically, the defendant argued
that the instructions improperly directed the jury that it had to be unanimous in a finding
of mitigating circumstances. Kleypas' citation to and discussion of United States Supreme
25
Court cases indicate that the Eighth and Fourteenth Amendments were understood to
govern the unanimity instruction claim. See 272 Kan. at 1076-77 (citing Mills v.
Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d 384 [1988]; McKoy v. North
Carolina, 494 U.S. 433, 443-44, 110 S. Ct. 1227, 108 L. Ed. 2d 369 [1990]
[unconstitutional to require mitigating circumstance to be found unanimously]).

On the way to resolving the issue, the Kleypas court identified two components
that should be included in any instruction addressing mitigating circumstances:

"[A]ny instruction dealing with the consideration of mitigating circumstances should
state (1) they 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." (Emphasis added.) Kleypas,
272 Kan. at 1078.

The italicized language referring to the burden of proof on mitigators went beyond
the issue actually before the court. The challenged instruction provided in relevant part:
"'It is not necessary that all jurors agree upon particular facts and circumstances in
mitigation of punishment.'" 272 Kan. at 1077. And the Kleypas court ultimately approved
that portion of the instruction because it "was sufficient to address the concern that the
jury might believe that unanimity was required as to mitigating circumstances." 272 Kan.
at 1079.

In Scott, this court again dealt with the issue of juror unanimity as to mitigating
circumstances. Although the Scott court did not explicitly state that it was considering the
claim under the Eighth and Fourteenth Amendments, the court's citation to Boyde v.
California, 494 U.S. 370, 380, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990), for the
appropriate standard of review again indicated that the issue was considered under the
26
framework of the federal Constitution. See Scott, 286 Kan. at 104-05 (standard of review
of claim that jury instruction in penalty phase prevented jury from giving proper
consideration to mitigating evidence is whether there is a reasonable likelihood that jury
applied challenged instruction in a way that prevents consideration of constitutionally
relevant evidence).

Recognizing that it had addressed the same issue in Kleypas, the Scott court noted
that Kleypas recommended the two components that should be included in any mitigating
circumstances instruction. Scott, 286 Kan. at 106-07. The Scott court then distinguished
Kleypas on the basis that the unanimity language included in the instruction in Kleypas
and approved by the court had not been included in Scott. It explained:

"In addition to the instructions we have emphasized, we have considered all of
the other instructions given by the trial court in an effort to decide whether jurors could
have reasonably been misled to believe unanimity was required as to mitigating
circumstances. 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. We hold
failure of the trial court to provide the jury with a proper standard for determining
mitigating circumstances constitutes reversible error. See Mills v. Maryland, 486 U.S.
367, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988) (holding a death sentence should be
vacated where there was a substantial probability reasonable jurors may have thought
they could only consider those mitigating circumstances unanimously found to exist).
Accordingly, we must reverse the death sentence and remand to the district court for a
new capital sentencing hearing." State v. Scott, 286 Kan. 54, 107, 183 P.3d 801 (2008).

27
 In Gleason, the defense challenge to the mitigating circumstances jury instructions
shifted focus from juror unanimity to burden of proof. The defendant argued that the
district court erred when it failed to instruct the jury that mitigating circumstances need
not be proven beyond a reasonable doubt. Further, the error required reversal because
"the instructions as a whole exacerbated the error and there is a reasonable likelihood the
jurors were precluded from considering relevant mitigating evidence in violation of the
Eighth and Fourteenth Amendments to the United States Constitution." State v. Gleason,
299 Kan. 1127, 1191, 329 P.3d 1102 (2014).

The Gleason court quoted Scott and Boyde for the proper standard of review. And
then it discussed Kleypas, Scott, and the evolution of the PIK instruction on mitigating
circumstances. Gleason, 299 Kan. at 1191-94.

The court described the two components identified in Kleypas as "required content
of penalty-phase mitigating circumstances instructions." Gleason, 299 Kan. at 1195. And,
although Kleypas and Scott had dealt with juror unanimity, i.e., the second component
identified in Kleypas, we characterized both components as "implicat[ing] the broader
Eighth Amendment principle prohibiting barriers that preclude a sentencer's
consideration of all relevant mitigating evidence." Gleason, 299 Kan. at 1195. Still,
we said:

"[T]he United States Supreme Court has explained that its Eighth Amendment
jurisprudence on capital sentencing should not be interpreted as creating any
constitutional requirements as to how or whether a capital jury should be instructed on
the burden of proof for mitigating circumstances. [Citation omitted.] . . . 'So long as a
State's method of allocating the burdens of proof does not lessen the State's burden to
prove . . . aggravating circumstances, a defendant's constitutional rights are not violated
by placing on him the burden of proving mitigating circumstances sufficiently substantial
to call for leniency.'" Gleason, 299 Kan. at 1195 (quoting Walton v. Arizona, 497 U.S.

28
 639, 650, 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]).

The court nevertheless took pains to distinguish the Arizona statute at issue in the
quoted Walton case from K.S.A. 21-4624:

"[T]he capital sentencing statute at issue in Walton explicitly required defendants to
prove mitigating circumstances by a 'preponderance of the evidence' standard. 497 U.S.
at 651. Kansas' capital sentencing statute differs distinctly from the statute at issue in
Walton, and that distinction is critical to our analysis here. Namely, while K.S.A.
21-4624 requires the State to prove aggravating circumstances beyond a reasonable
doubt, the statute is silent as to any burden of proof for mitigating circumstances. K.S.A.
21-4624(e); see also Marsh, 548 U.S. at 173 (contrasting Kansas' statute, which places no
evidentiary burden on capital defendants, with Arizona's statute, which requires capital
defendants to prove mitigating circumstances by a preponderance of the evidence).

"As the United States Supreme Court recognized, '[t]his distinction operates in
favor of Kansas capital defendants.' 548 U.S. at 173. Notably, Kleypas' first statement—
that any mitigating circumstance instruction must inform the jury that mitigating
instructions 'need to be proved only to the satisfaction of the individual juror in the juror's
sentencing decision and not beyond a reasonable doubt,' both preserves the statute's
favorable distinction and protects a capital defendant's Eighth Amendment right to
individualized sentencing by ensuring jurors are not precluded from considering all
relevant mitigating evidence. Kleypas, 272 Kan. at 1078.

"In conclusion, both Kleypas and Scott support Gleason's claim that the trial court
here erroneously instructed the jury regarding mitigating circumstances. Here, the
instruction failed to affirmatively inform the jury that mitigating circumstances need only
be proved to the satisfaction of the individual juror in that juror's sentencing decision and
not beyond a reasonable doubt. See Kleypas, 272 Kan. at 1078." Gleason, 299 Kan. at
1195-96.

29
 Our Gleason decision then discussed the relationship between K.S.A. 21-4624 and
the language regarding mitigating circumstances instructions found in Kleypas and Scott:

"Because K.S.A. 21-4624 expressly burdens the State with proving the existence
of aggravating circumstances beyond a reasonable doubt but places no evidentiary burden
regarding the existence of mitigating circumstances on the defendant beyond the burden
of production, we reiterate our holding in Kleypas and Scott that capital juries in Kansas
must be informed that mitigating circumstances need not be proven beyond a reasonable
doubt. Because the instruction given in this case failed to do so, it was erroneous."
Gleason, 299 Kan. at 1196-97.

Ultimately, the Gleason court agreed with the defense that the district court's error
was exacerbated when the instructions were considered as a whole and that the error
required vacating the death sentence because a "reasonable likelihood exist[ed] that the
jury applied the mitigating circumstances instruction in a manner precluding individual
jurors from properly considering relevant mitigating evidence as required by the Eighth
Amendment." Gleason, 299 Kan. at 1197.

We conclude from this review that in Kleypas, Scott, and Gleason the burden of
proof instruction issues were framed as federal constitutional claims. But central to the
decision in each case was this court's consideration of K.S.A. 21-4624(e). See, e.g.,
Gleason, 299 Kan. at 1196-97. And K.S.A. 21-4624(e) provides greater protection to a
death-eligible defendant than that required by the federal Constitution, i.e., the defendant
has only a burden of production in establishing mitigating circumstances. Compare
Gleason, 299 Kan. at 1196-97 (K.S.A. 21-4624 expressly burdens State with proving
aggravating circumstances beyond reasonable doubt but places no evidentiary burden
regarding existence of mitigating circumstances on defendant beyond burden of
production), with Walton, 497 U.S. at 650 (defendant's constitutional rights not violated
by imposing burden to prove mitigating circumstances by preponderance of evidence).
30
See generally Kansas v. Carr, 577 U.S. ___, 136 S. Ct. 633, 648, 193 L. Ed. 2d 535
(2016) (Sotomayor, J., dissenting) ("The Federal Constitution guarantees only a
minimum slate of protections; States can and do provide individual rights above that
constitutional floor."). In enacting K.S.A. 21-4624(e), the Kansas Legislature endowed
capital defendants with protection above that of the federal constitutional floor with
respect to the burden of proof to establish mitigating circumstances. This greater
protection is a matter of state law outside the purview of the United States Supreme
Court.

Cheever did not object at trial to the giving of the mitigating circumstances
instruction or request an affirmative instruction about the burden of proof with respect to
mitigating circumstances. Thus we review this state law challenge for clear error. See
K.S.A. 22-3414(3) (no party who fails to object in district court may assign as error the
giving or failure to give an instruction unless instruction or failure to give instruction
clearly erroneous); State v. Robinson, 303 Kan. 11, 282, 363 P.3d 875 (2015).

In contexts outside the penalty phase of a capital murder proceeding, we have
explained that an appellate court follows a multi-step process when analyzing jury
instruction issues:

"(1) determining whether the appellate court can or should review the issue, i.e., whether
there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal;
(2) considering the merits of the claim to determine whether error occurred below; and
(3) assessing whether the error requires reversal, i.e., whether the error can be deemed
harmless." State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012).

We have also recognized that the first and third steps "are interrelated in that
whether a party has preserved a jury instruction issue will affect our reversibility inquiry
at the third step." State v. Bolze-Sann, 302 Kan. 198, 209, 352 P.3d 511 (2015). And to
31
determine whether it was clearly erroneous to give or fail to give an instruction, i.e., a
reviewability threshold, "the reviewing court necessarily has to first determine whether it
was erroneous at all." State v. Haberlein, 296 Kan. 195, 203, 290 P.3d 640 (2012). Thus,
we have occasionally described our analysis as a "two-part test" when determining
whether the giving or failing to give a jury instruction is clearly erroneous. See Robinson,
303 Kan. at 282.

"'First, "the reviewing court must . . . determine whether there was any error at all. To
make that determination, the appellate court must consider whether the subject instruction
was legally and factually appropriate, employing an unlimited review of the entire
record."' State v. Herbel, 296 Kan. 1101, 1121, 299 P.3d 292 (2013) (quoting State v.
Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195 [2012]).

"If error is found, we next conduct a reversibility inquiry, where

"'"the court assesses whether it is firmly convinced that the jury would have reached a
different verdict had the instruction error not occurred. The party claiming a clearly
erroneous instruction maintains the burden to establish the degree of prejudice necessary
for reversal." Williams, 295 Kan. 506, Syl. ¶ 5.' Herbel, 296 Kan. at 1121." Robinson,
303 Kan. at 282.

We begin by asking whether an instruction on the burden of proof for mitigating
circumstances was legally appropriate.

As noted above, K.S.A. 21-4624(e) provides greater protection to a death-eligible
defendant than that required by the federal Constitution. By necessary implication, it
evidences the legislature's intent that a capital penalty phase jury be instructed that
mitigating circumstances need to be proved only to the satisfaction of the individual juror
in the juror's sentencing decision and not beyond a reasonable doubt. Thus the instruction
for which Cheever argues on appeal was legally appropriate.
32
 Moreover, because mitigating circumstances must be determined by each juror
individually and because mercy itself may be considered a mitigating factor, the
challenged instruction also was factually appropriate in the sentencing phase of this
capital proceeding. See State v. Carr, 300 Kan. 1, 307, 331 P.3d 544 (2014) (recognizing
mercy as mitigating factor).

In State v. Kleypas, 272 Kan. 894, 1078, 40 P.3d 139 (2001), this court recognized
the same construction of K.S.A. 21-4624(e) as we articulate today. Although that
recognition qualified as judicial dicta because the burden-of-proof issue was not before
the court in that case, this court nevertheless correctly identified the required content of a
mitigating circumstances instruction under state law, and that law has controlled since
2001. This court has repeated the burden-of-proof requirement; district court judges have
relied on it in formulating their instructions; and the Judicial Council PIK-Criminal
Advisory Committee has amended the PIK instruction to be consistent with it. See PIK
Crim. 4th 54.050. Perhaps most persuasive in this context, the legislature has had the
opportunity over the past 15 years to express any disagreement with the Kleypas
interpretation of K.S.A. 21-4624(e) by amending the statute. It has not done so. See State
v. Jordan, 303 Kan. 1017, 1021, 370 P.3d 417 (2016) (legislative inaction may be
considered indicator of specific legislative purpose).

Because the challenged instruction was legally and factually appropriate, the
district court's failure to instruct the jury that mitigating circumstances need not be
proven beyond a reasonable doubt was error under state law. We thus proceed to the next
analytical step and determine whether the error was clear and reversible. Cheever bears
the burden to firmly convince this court that the jury would have returned a different
verdict had the instructional error not occurred. This is a high standard—higher than the
"reasonable likelihood" standard he advanced in his original brief and continues to
33
advance in his motion. See State v. Breeden, 297 Kan. 567, 581, 304 P.3d 660 (2013)
(failure to object to instruction raises persuasive bar complaining party must hurdle on
appeal); Williams, 295 Kan. at 518 (burden to firmly convince appellate court that the
jury would have reached a different verdict had error not occurred "high hurdle").

Cheever contends that he presented substantial mitigation evidence during his
penalty-phase proceeding. In his motion, Cheever recounts the mitigation evidence that
he put forth, which included evidence of his drug use and drug addiction, his assertion
that his judgment was impaired on the day of the crime due to drug use, his upbringing in
an environment with pervasive drug use, the sabotage of his potential to lead a drug- and
crime-free lifestyle by his parents, his conversion to Christianity, and his genuine
remorse. Much of this evidence was boiled down into a nonexclusive list of nine
mitigating circumstances that the district court provided the jury as part of the
instructions.

During the penalty proceeding, the State alleged three aggravating circumstances:
(1) the defendant was previously convicted of a felony in which the defendant inflicted
great bodily harm on another; (2) the defendant knowingly or purposely created a great
risk of death to more than one person in the present case; and (3) the defendant
committed the present crime in order to avoid or prevent a lawful arrest or prosecution.
The jury unanimously found beyond a reasonable doubt all three aggravating
circumstances.

We have independently reviewed the complete record on appeal, including the
penalty-phase proceedings in full. Cheever's effort to downplay his culpability for the
murder of Samuels by relying on his drug use and upbringing, in the face of the State's
proof beyond a reasonable doubt that he knowingly or purposely created a great risk of
death to more than one person and committed the murder in order to avoid or prevent a
34
lawful arrest or prosecution, findings that support a heightened degree of culpability, do
not firmly convince us that a jury would have returned a different verdict had the
instructional error not occurred. Likewise, Cheever's mitigating evidence of his potential
for rehabilitation was fully countered by the jury's unanimous finding beyond a
reasonable doubt that he had a previous felony conviction in which he inflicted great
bodily harm. On this evidence, there is no clear error requiring this court to vacate
Cheever's death sentence.

Constitutionality of K.S.A. 21-3439(a)(5)

Cheever argues that the definition of capital murder under K.S.A. 21-3439(a)(5)
(intentional and premeditated murder of a law enforcement officer) violates the Eighth
and Fourteenth Amendments to the United States Constitution and § 9 of the Kansas
Constitution Bill of Rights because it does not limit the offense to situations in which the
law enforcement officer is killed while performing, or because of, his or her duties as a
law enforcement officer. Without that element, all intentional and premeditated murders
of persons employed as law enforcement officers can be capital murder, whether or not
the killing was related to the victim's law enforcement duties. Cheever concludes,
therefore, that the statute fails to "genuinely narrow the class of persons eligible for the
death penalty and reasonably justify the imposition of a more severe sentence on the
defendant compared to others found guilty of murder" as required by the Eighth
Amendment. Zant v. Stephens, 462 U.S. 862, 877, 103 S. Ct. 2733, 77 L. Ed. 2d 235
(1983); Scott, 286 Kan. 54, Syl. ¶ 35.

Cheever did not raise this issue before the district court, but we have previously
noted that does not preclude our review. State v. Cheever, 295 Kan. 229, 241, 284 P.3d
1007 (2012) (K.S.A. 21-4627[b] imposes a mandatory exception in death penalty appeals
to the various statutes and rules barring consideration of unpreserved issues). Under
35
K.S.A. 2015 Supp. 21-6619(b), we would be required to review the issue were there not
another problem with Cheever's argument that does preclude our review. It is undisputed
that Samuels was engaged in the performance of his duties as a law enforcement officer
at the time he was killed. Thus there is a question as to whether Cheever has standing to
challenge the constitutionality of K.S.A. 21-3439(a)(5) on the ground that it does not
require the victim to have been engaged in the performance of his or her duties at the
time of the murder.

A party cannot raise a challenge to the constitutionality of a statute where the
claimed defect does not apply to that party:

"The general rule governing the standing of a party to challenge the
constitutionality of legislation is that a litigant to whom a statute may constitutionally be
applied will not be heard to challenge the statute on the ground that it may conceivably be
applied unconstitutionally to others, in situations not before the court. [Citation omitted.]"
State v. Thompson, 237 Kan. 562, 563, 701 P.2d 694 (1985).

Standing is a component of the case-or-controversy limitation on judicial power
under the doctrine of separation of powers. See State ex rel. Morrison v. Sebelius,
285 Kan. 875, 896-97, 179 P.3d 366 (2008). Because the Kansas Constitution's
framework "limit[s] the judicial power to actual cases and controversies," Kansas courts
do not have the power to give advisory opinions. 285 Kan. at 898. To meet the
case-or-controversy requirement, a party must have standing; the issue cannot be moot;
the issue must be ripe; and the issue cannot present a political question. 285 Kan. at 896.

The standing requirement is based on the rule that courts do not decide cases based
on purely hypothetical scenarios. See Hall v. Dillon Companies, Inc., 286 Kan. 777,

36
784-85, 189 P.3d 508 (2008) (a court does not decide hypothetical cases; it "must apply
the law to the case before it"); State ex rel. Morrison, 285 Kan. at 897. It is undisputed
that the constitutional defect Cheever alleges concerning K.S.A. 21-3439(a)(5) does not
apply to him. Consequently, any consideration of the issue in the context of this case
would necessarily be hypothetical.

Cheever does not have standing to raise a challenge to the constitutionality of
K.S.A. 21-3439(a)(5) on the ground asserted in this appeal. His lack of standing
forecloses our review.

Challenges for Cause

Cheever argues two trial court rulings on challenges for cause to venire members
during voir dire affected the penalty phase of his trial.

Under the Sixth and Fourteenth Amendments to the United States Constitution, a
defendant in a capital criminal case has a right to an impartial jury. Morgan v. Illinois,
504 U.S. 719, 728, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992).

"A juror who will automatically vote for the death penalty in every case will fail in good
faith to consider the evidence of aggravating and mitigating circumstances as the
instructions require him to do. Indeed, because such a juror has already formed an
opinion on the merits, the presence or absence of either aggravating or mitigating
circumstances is entirely irrelevant to such a juror. Therefore, based on the requirement
of impartiality embodied in the Due Process Clause of the Fourteenth Amendment, a
capital defendant may challenge for cause any prospective juror who maintains such
views. If even one such juror is empaneled and the death sentence is imposed, the State is
disentitled to execute the sentence." 504 U.S. at 729.

37
 Morgan referred to Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 83 L.
Ed. 2d 841 (1985), for the standard by which to judge a challenge for cause to such a
potential juror:

"Witt held that 'the proper standard for determining when a prospective juror may
be excluded for cause because of his or her views on capital punishment . . . is whether
the juror's views would "prevent or substantially impair the performance of his duties as a
juror in accordance with his instructions and his oath."' [Citation omitted.]" Morgan, 504
U.S. at 728.

It is the duty of a trial court to see that a jury of competent, fair, and impartial
persons is impaneled. State v. Stuart, 206 Kan. 11, 12, 476 P.2d 975 (1970). K.S.A.
22-3410(2)(i) provides a prospective juror may be challenged for cause when his or her
state of mind with reference to the case or parties prevents the juror from acting
impartially and without prejudice to the substantial rights of any party.

"Because only the district court is in a position to view the demeanor of
prospective jurors during voir dire, a district court's ruling on a challenge for cause will
not be disturbed on appeal unless it is clearly erroneous or amounts to an abuse of
discretion. State v. Kleypas, 272 Kan. 894, 991, 40 P.3d 139 (2001), cert. denied 537 U.S.
834 (2002)." State v. Ackward, 281 Kan. 2, 27, 128 P.3d 382 (2006).

See also Uttecht v. Brown, 551 U.S. 1, 9, 127 S. Ct. 2218, 167 L. Ed. 2d 1014 (2007)
("Deference to the trial court is appropriate because it is in a position to assess the
demeanor of the venire, and of the individuals who compose it, a factor of critical
importance in assessing the attitude and qualifications of potential jurors."); State v.
Dixon, 248 Kan. 776, 788-89, 811 P.2d 1153 (1991).

In Carr, we explained:

38
 "On appeal, the question before us is not whether we would have agreed with a
district judge's decision on a strike for cause prompted by a panel member's opinion on
the death penalty but whether the district judge's decision is fairly supported by the
record. Witt, 469 U.S. at 434; see Darden v. Wainwright, 477 U.S. 168, 176, 106 S. Ct.
2464, 91 L. Ed. 2d 144 (1986) (appellate courts must examine context surrounding
prospective juror's exclusion, qualification). If the record contains conflicting or
ambiguous information, the United States Supreme Court has expressed its belief that
deference is owed to 'the trial court, aided as it undoubtedly was by its assessment of [the
prospective juror's] demeanor.' Witt, 469 U.S. at 434." Carr, 300 Kan. at 114.

Venire Member J.S.W.

Initially, Cheever disputes the trial court's denial of his challenge to venire
member J.S.W. on the basis of her statement that she would be "leaning" in favor of the
death penalty once premeditated intentional killing had been found beyond a reasonable
doubt.

Venire member J.S.W. made several statements providing a context from which
Cheever has extracted a small sample. She indicated that she could presume Cheever not
guilty, that she could follow instructions concerning the effects of drugs on the
defendant's mental state, and that she understood and would respect the fact that it only
took one juror dissenting from a death sentence to cause the imposition of a life sentence.
She also stated that she understood that the weighing of aggravating and mitigating
circumstances was not simply a mathematical process. She stated that she realized there
were some situations in which the death penalty should not be given and that if Cheever
were convicted she would need to consider both the death penalty and a life sentence.
She indicated that she thought she could impose a life sentence under certain
circumstances. In a lengthy exchange with the prosecutor, she indicated that she would
not use a "one-size-fits all" approach.

39
 The trial judge observed that the question was "whether or not [J.S.W.] can fairly
and objectively consider both options of a death sentence and life in prison without the
possibility of parole, and whether or not her leaning would substantially interfere with her
ability to do that evaluation process" and concluded that her views would not interfere
with her ability to engage in the weighing process as instructed. There is ample record
support for the trial judge's conclusion and we find nothing to indicate an abuse of
discretion.

Venire Member T.D.

Next Cheever argues that the trial judge erroneously dismissed venire member
T.D. because of her religious beliefs. Cheever makes arguments under the Eighth
Amendment to the United States Constitution and under § 7 of the Kansas Constitution
Bill of Rights to support this contention.

In her juror questionnaire, T.D. wrote "I am against the death penalty. I am against
the death penalty ever being imposed. I can give someone a life sentence." In another
answer she wrote, "I can't see myself being able to impose the death penalty." In response
to questioning by the State, T.D. confirmed those answers reflected her position. She told
the prosecutor that her feelings would not prevent her from judging the defendant's guilt.
But if it came to imposing a penalty, T.D. stated that she could not see herself ever
changing her opinion on the death penalty and that she would automatically vote for a life
sentence. She confirmed that she could not and would not follow the court's instructions
if they resulted in a death sentence.

Based on these answers, the State challenged T.D. for cause. When Cheever's
counsel asked T.D. if her opposition came "in part" from her religion, she responded
40
"[m]aybe a little bit, yes." In response to questioning by the trial judge, T.D. confirmed
that her opposition to the death penalty was based in part on her religious beliefs and in
part on other personal beliefs. And she affirmed once again that she could not consider
both the death sentence and life without parole if the defendant were convicted of capital
murder but would automatically choose a life sentence. The trial judge granted the State's
challenge for cause.

Under the Sixth Amendment, the trial judge's exclusion of T.D. in this death
penalty proceeding was clearly appropriate. Her answers established that her personal
views substantially impaired her ability to perform her duties as a juror in accordance
with her oath and the court's instructions. Moreover, under the Sixth Amendment, the fact
that T.D.'s personal views were based in part on her religious beliefs makes no difference
in the analysis because her removal is based on her inability to impartially follow the law
and instructions and not upon her religious beliefs. Lockhart v. McCree, 476 U.S. 162,
106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986) (impartial jury consists of nothing more than
jurors who will conscientiously apply the law and find the facts).

But Cheever, in an apparent attempt to avoid the Sixth Amendment jurisprudence,
argues that the Eighth Amendment prohibits the removal of T.D. from the panel. The
Eighth Amendment requires that the jury 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 of less
than death. Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978);
Woodson v. North Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976).
Cheever's argument that the Eighth Amendment entitles him to select jurors who, because
of their own religious beliefs, will view mitigating evidence from a certain point of view,
namely, one that eschews the death penalty, is based on a premise that a juror's religious
viewpoint is, in itself, a mitigating factor. It is a novel argument, but Cheever provides no
41
authority to support it and our research has uncovered none. Moreover, it seems difficult
to justify with the precedent of the United States Supreme Court that focuses on the
ability of a juror to impartially consider the death penalty while allowing the states "'to
structure and shape consideration of mitigating evidence "in an effort to achieve a more
rational and equitable administration of the death penalty."'" Johnson v. Texas, 509 U.S.
350, 362, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993); cf. People v. Taylor, 48 Cal. 4th
574, 603, 108 Cal. Rptr. 3d 87, 229 P.3d 12 (2010) (defendant's Eighth Amendment
challenge to death qualification of jury was lacking in merit, where the challenge was in
essence a restatement of his claims under other constitutional provisions); People v.
Johnson, 3 Cal. 4th 1183, 1213, 14 Cal. Rptr. 2d 702, 842 P.2d 1 (1992) (same).

Cheever also bases his objection to the dismissal of T.D. on § 7 of the Kansas
Constitution Bill of Rights, specifically that part which provides:

"No religious test or property qualification shall be required for any office of public trust,
nor for any vote at any election, nor shall any person be incompetent to testify on account
of religious belief."

Cheever maintains that the office of juror is an office of public trust and § 7 prohibits
exclusion from juror service on the basis of religion. This precise claim was considered
and rejected by the court in Kleypas, 272 Kan. 894. Kleypas had argued that § 7 "should
be read to provide a further limitation on the State's power to exclude prospective jurors
based on their religious opposition to the death penalty." 272 Kan. at 992-93. Kleypas
supported his constitutional argument, as Cheever does, by pointing to K.S.A. 43-156
which provides:

"No person shall be excluded from service as a grand or petit juror in the district
courts of Kansas on account of race, color, religion, sex, national origin, or economic

42
 status. Every juror, grand and petit, shall be a citizen of the state, resident of the county
and possess the qualifications of an elector as now, or in the future established."

The Kleypas court held that § 7 of the constitution provided no greater protection than
provided by K.S.A. 43-156. State v. Kleypas, 272 Kan. 894, 993, 40 P.3d 139 (2001).

As noted above, K.S.A. 22-3410(2)(i) provides that a prospective juror may be
challenged for cause as unqualified to serve when he or she is partial or biased. In State v.
Carr, 300 Kan. 1, 124, 331 P.3d 544 (2014), we recognized the tension created by the
interaction of the two statutes "when the reason a prospective juror can never participate
in imposition of the death penalty, compelling removal of that person for cause, has a
basis in a religious code."

In Kleypas, we determined that the jurors at issue in that case were excused "due
to their inability to be impartial and follow their oath as jurors regarding consideration of
the death penalty, not on religious grounds." 272 Kan. at 993. And our Carr decision
recognized the key distinction in this situation is that between belief and behavior.

"[J]urors cannot be discriminated against on the basis of their religious belief or lack of
belief. But they can be excluded from jury service when their belief or nonbelief makes it
impossible for them to act in conformance with the signature requirement of that service:
impartiality under the rule of law." 300 Kan. at 124.

Significantly, the State raised its challenge for cause to T.D. before any mention of
her religious beliefs arose but after she had repeatedly said, both in writing and in open
court, she could not and would not consider the death penalty regardless of how she was
instructed by the court. The record establishes the trial judge had more than adequate
support to conclude that T.D. could not impartially carry out her obligations as a juror in
a death penalty case, and doing so did not violate the Kansas Constitution. Cf. State v.
43
Clark, 128 N.M. 119, 129, 990 P.2d 793 (1999) ("fact that the potential juror's inability to
perform his or her duty is based upon religious objection and belief does not violate the
religious protections of the New Mexico Constitution, because exclusion from the jury
was not based upon religious affiliation").

Orientation Remarks

During orientation remarks to the seven venire panels, the trial judge explained the
court reporter took a complete record of the proceedings in the courtroom in part for the
purpose of appellate review "and the appellate court decides all issues on appeal based on
that record that we've made here in the trial court." Cheever argues that the remarks
violated the Eighth Amendment to the United States Constitution as applied in Caldwell
v. Mississippi, 472 U.S. 320, 328-29, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985), which
held that "it is constitutionally impermissible to rest a death sentence on a determination
made by a sentencer who has been led to believe that the responsibility for determining
the appropriateness of the defendant's death rests elsewhere." We discussed Caldwell in
our earlier decision in this case, along with State v. Nguyen, 251 Kan. 69, 80, 833 P.2d
937 (1992) (holding a trial court should not mention a defendant's right to appeal).
Because we were reversing on other grounds, we made no determination whether the trial
court's remarks in this case rose to the level of constitutional error or gave grounds for
reversal under state law. See Cheever, 295 Kan. at 260-61. We now determine they did
not.

The crux of a Caldwell violation is giving the jury misleading information which
improperly minimizes its role in the death penalty process. Cheever, 295 Kan. at 260.

"[W]e . . . read Caldwell as 'relevant only to certain types of comment—those that
mislead the jury as to its role in the sentencing process in a way that allows the jury to

44
 feel less responsible than it should for the sentencing decision.' Darden v. Wainwright,
477 U.S. 168, 184, n. 15[, 106 S. Ct. 2464, 91 L. Ed. 2d 144] (1986). Thus, '[t]o establish
a Caldwell violation, a defendant necessarily must show that the remarks to the jury
improperly described the role assigned to the jury by local law.' [Citations omitted.]"
Romano v. Oklahoma, 512 U.S. 1, 9, 114 S. Ct. 2004, 129 L. Ed. 2d 1 (1994).

Here the trial judge's remarks did not concern the role of the jury. They were an
accurate statement of the fact that one reason court reporters record trial proceedings is to
provide a record for appellate review. Consequently, we conclude there was no
constitutional error presented by the judge's remarks. See State v. Braxton, 352 N.C. 158,
175-76, 531 S.E.2d 428 (2000) (trial court's statement before jury selection that
transcription of the case would allow Supreme Court review, trial court's passing
references to appellate review during voir dire did not dilute responsibility of jury, did
not invalidate the death sentence, did not violate the Eighth Amendment; statements did
not imply Supreme Court would correct any errors the jury might make).

Nonetheless, we were unequivocal in Nguyen in our statement that a trial court
should avoid any mention of a defendant's right to appeal. Our holding was based upon
much the same rationale as that underlying the Supreme Court's decision in Caldwell;
the mention of appellate review could lessen the jury's sense of responsibility for the
correctness of its decision and its importance and may lead jurors to conclude any
mistake they make in their findings of fact or, in a capital case, in the choice of sentence,
would be corrected on appeal. See Nguyen, 251 Kan. at 79-80. Nguyen was not a capital
case, but in our prior decision in this case "we . . . reiterate[d] our general directive: It is
improper for a trial court to make comments to the jury regarding appellate review [and]
we emphasize[d] that the life-or-death stakes in a capital murder proceeding require extra
vigilance on the part of the trial court to abide by this directive." State v. Cheever, 295
Kan. 229, 261, 284 P.3d 1007 (2012).

45
 That said, our cases have held that judicial comments that are not instructions to
the jury are reviewed under judicial misconduct standards. Both parties pointed to this
standard of review in their briefs. "In cases alleging judicial misconduct, this court's
standard of review is unlimited. The question is whether [the defendant]'s substantial
rights to a fair trial were prejudiced by the court's statements. [The defendant] bears the
burden of showing his substantial rights were prejudiced." State v. Kirkpatrick, 286 Kan.
329, 348, 184 P.3d 247 (2008), abrogated on other grounds by State v. Sampson,
297 Kan. 288, 301 P.3d 276 (2013). In making the determination, we must look to the
particular facts and circumstances of the case.

While we are mindful that this is a capital case in which the jury imposed a death
penalty, we find no indication whatsoever that Cheever's rights were prejudiced by the
trial judge's factual statements regarding the court reporter's duties. The statements were
among the earliest remarks the eventual jurors heard, and any effect they might have had
was surely attenuated by the voir dire process, the trial, and the instructions informing
jurors of their responsibilities in both the guilt phase and the penalty phase. Trial judges
should not mention appellate review to juries, but the brief and strictly factual mention to
the panels in this case, before voir dire had begun and jurors were actually selected, is not
grounds for reversal.

Age at Time of Crime

"Capital defendants, no less than noncapital defendants, . . . are entitled to a jury
determination of any fact on which the legislature conditions an increase in their
maximum punishment." Ring v. Arizona, 536 U.S. 584, 589, 122 S. Ct. 2428, 153 L. Ed.
2d 556 (2002). In our previous decision, we held that because K.S.A. 21-4622 and K.S.A.
21-4624(b) condition the capital sentencing hearing on the defendant being 18 years of
age at the time of the commission of the capital murder, "the fact the defendant was at
46
least 18 years old at the time of the crime is a fact necessary to subject the defendant to
the death penalty and therefore within the scope of Sixth Amendment protection."
Cheever, 295 Kan. at 264-65. We also noted that Roper v. Simmons, 543 U.S. 551, 578,
125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), categorically prohibits the imposition of the
death penalty on individuals who were under 18 at the time they committed a capital
offense. Cheever, 295 Kan. at 264. But, because we were reversing on other grounds, we
did not assess the effect of the trial court's failure to have the jury make a finding beyond
a reasonable doubt of Cheever's age at the time of the crime. 295 Kan. at 265 ("[W]e need
not decide whether the failure to instruct the jury to find the defendant's age was harmless
under the facts of this case.") (citing State v. Colston, 290 Kan. 952, 975, 235 P.3d 1234
[2010], and State v. Reyna, 290 Kan. 666, Syl. ¶ 10, 234 P.3d 761 [2010] [harmless error
analysis applies to error in omitting element of defendant's age where age was
uncontested and supported by overwhelming evidence]). We need to make that
determination now.

Cheever does not contest that he was over the age of 18 on the day he killed
Samuels. In fact, the record is replete with evidence from which the jury could have made
that finding. Cheever testified at trial in October 2007 that he was 26 years old and that
his date of birth was August 19, 1981. Those facts would make him 23 years old at the
time of the offense. Cheever also testified that he graduated from high school in May
1999. In addition, Greenwood County Sheriff's Detective Mike Mullins testified that he
believed that Cheever was "roughly" 23 years old on January 19, 2005.

At the penalty phase, one of Cheever's mitigating factors was that he was 23 years
old at the time of the crime. Cheever's high school transcript was admitted as an exhibit.
The transcript reflected Cheever's date of birth and his high school graduation date.
Several witnesses testified to their knowledge or observation of Cheever's age during the
penalty phase of Cheever's trial. Cheever's mother, Brenda Friesner, testified that
47
Cheever was born on August 19, 1981, and made other references to his age. Cheever's
aunt, Teresa Aikman, also referred to Cheever's age during her testimony. Robert
Sanders, the victim of Cheever's prior conviction of attempted aggravated robbery,
testified that the man who attacked him appeared to be 19 to 20 years old. The date of
that offense was May 24, 2000.

Cheever's own testimony during the guilt phase of trial, which was corroborated
by Mullins' testimony, as well as Cheever's own arguments and the evidence and
testimony of other witnesses during the penalty phase, clearly established that he was
23 years old at the time of the offense. 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. See Reyna,
290 Kan. at 681 ("[T]his court will apply the harmless error analysis to the omission of an
element from the instructions to the jury when a review of the evidence leads to the
conclusion 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.").

Constitutionality of K.S.A. 21-4624(c)

Cheever also raises an objection to the relaxed evidentiary standard of K.S.A.
21-4624(c). Under that provision, any evidence relevant to the question of sentence
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. We did not address his arguments under the
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution in our prior
decision; however, his Sixth Amendment argument based on Ring was rejected in State v.
Scott, 286 Kan. 54, 99-101, 183 P.3d 801 (2008), and his Eighth Amendment argument
48
based on the need for "heightened reliability" in death penalty proceedings was rejected
in Kleypas, 272 Kan. at 1036-43. He has given us no additional authority or any other
reason to reconsider those rulings, and we decline to do so. Moreover, he points to no
specific evidence presented in his penalty hearing that fell below the standards he
advocates.

Cheever makes an additional argument, based on the Confrontation Clause and
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), that the
statute is unconstitutional because it allows introduction of testimonial hearsay evidence.
Notably, Cheever does not contend that any testimonial hearsay was admitted during his
penalty-phase proceeding. See State v. Williams, 299 Kan. 911, 918, 329 P.3d 400 (2014)
("Generally, 'if there is no constitutional defect in the application of the statute to a
litigant, [the litigant] does not have standing to argue that it would be unconstitutional if
applied to third parties in hypothetical situations.'"). Because Cheever points to no
testimony that would be disallowed by the rule he wants applied, he lacks standing to
raise a challenge to the rule's constitutionality.

Prosecutorial Misconduct

In our prior decision we found that one remark made in closing by the prosecutor
"crossed the line between comment on the weight of the evidence as it relates to specific
mitigating circumstances and argument to the jury that it could not consider a mitigating
circumstance as a matter of law." Cheever, 295 Kan. at 272-73 ("'[Y]ou've already
decided methamphetamine did not play a role in the capital murder of Matt Samuels. And
you should reject it now.'"). In Kleypas, this court recognized the "subtle differences"
between applying the constitutional harmless error test to prosecutorial misconduct
during the guilt phase proceeding and during the penalty-phase proceeding. 272 Kan. at
1084. This court explained:
49
 "[T]he standard of review and the ultimate question that must be answered with regard to
whether prosecutorial misconduct in the penalty phase of a capital trial was harmless is
whether the court is able to find beyond a reasonable doubt that the prosecutorial
misconduct, 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. In this determination, the overwhelming nature of the evidence
is a factor to be considered, although its impact is limited. Also, in making the
determination as to whether an error was harmless, it is important to recognize that the
question for the reviewing court is not what effect the constitutional error might generally
be expected to have upon a reasonable jury but, rather, what effect it had upon the actual
verdict in the case at hand. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078,
124 L. Ed. 2d 182 (1993). '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.' 508 U.S. at 279." Kleypas, 272 Kan. at 1087-88.

Applying that standard now, we conclude the prosecutor's improper remark would
not have affected the death verdict ultimately rendered by the jury in Cheever's case. The
remark itself was equivocal. As we noted there, the prosecutor told the jury it "should"
reject the influence of methamphetamine as a mitigator. He did not tell the jury it could
not consider it. And while we continue to disapprove of the remark, our conclusion that
"it could lead a juror to refuse to consider legally relevant mitigating evidence," was
speculative. Cheever, 295 Kan. at 273. We hold the error harmless.

Cumulative Error

Finally, we consider Cheever's claim that cumulative error deprived him of a fair
penalty-phase proceeding.

50
 Cheever cites State v. Ackward, 281 Kan. 2, 128 P.3d 382 (2006), for the standard
of review. In Ackward, this court explained:

"Cumulative trial errors, when considered collectively, may be so great as to
require reversal of the defendant's conviction. The test is whether the totality of
circumstances substantially prejudiced the defendant and denied him a fair trial. No
prejudicial error may be found upon this cumulative effect rule, however, if the evidence
is overwhelming against the defendant." 281 Kan. at 29.

The State cites an identical standard contained in State v. Lumbrera, 252 Kan. 54,
845 P.2d 609 (1992). But neither Ackward nor Lumbrera is a death penalty case. And
certain language in the cited cumulative-error standard suffers from a literal application
when considering a claim of cumulative error during the penalty phase of a capital trial.
For instance, the Ackward standard speaks in terms of the "reversal of the defendant's
conviction." (Emphasis added.) 281 Kan. at 29. But Cheever does not contend that the
combination of errors during the penalty-phase proceeding require the reversal of his
conviction. Instead, he asserts that the errors require this court to vacate his sentence.
Further, as will be discussed below, although the overwhelming evidence against a
defendant can serve as a bar to finding prejudicial cumulative error in the guilt phase,
there is no such bar in the penalty phase because the overwhelming nature of the
evidence is merely a factor to consider—a factor that carries little weight. See Kleypas,
272 Kan. at 1088.

In Kleypas, we noted "subtle differences" between applying the constitutional
harmless error test to prosecutorial misconduct during the guilt-phase proceeding and the
penalty-phase proceeding. 272 Kan. at 1084-88. We noted this standard above but repeat
it here for convenience.

51
 "[T]he standard of review and the ultimate question that must be answered with regard to
whether prosecutorial misconduct in the penalty phase of a capital trial was harmless is
whether the court is able to find beyond a reasonable doubt that the prosecutorial
misconduct, 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. In this determination, the overwhelming nature of the evidence
is a factor to be considered, although its impact is limited. Also, in making the
determination as to whether an error was harmless, it is important to recognize that the
question for the reviewing court is not what effect the constitutional error might generally
be expected to have upon a reasonable jury but, rather, what effect it had upon the actual
verdict in the case at hand. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 124
L. Ed. 2d 182 (1993). '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.'
508 U.S. at 279." Kleypas, 272 Kan. at 1087-88.

Within the context of prosecutorial misconduct, we recognized that although
individual instances of misconduct may be harmless in and of themselves, the total effect
of the cumulative misconduct may require this court to vacate a defendant's sentence and
remand for resentencing.

"[E]ven if instances of prosecutorial misconduct are harmless error in and of themselves,
their cumulative effect must be analyzed. See State v. Valdez, 266 Kan. 774, 802, 977
P.2d 242 (1999) (noting that cumulative errors may be so great as to require reversal).
For a cumulative error analysis, the focus is on the net prejudicial effect the total
prosecutorial misconduct had on the jury's ultimate verdict. The question is whether the
total effect of the cumulative misconduct found to exist, viewed in 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." State v. Kleypas, 272 Kan.
894, 1088, 40 P.3d 139 (2001).

52
 Our Kleypas decision provides us guidance on our standard of review and
analytical framework applicable to claims of penalty-phase cumulative error.

We hold that when considering a claim that cumulative error infected the
penalty-phase proceeding, our test is whether we are able to find that the total cumulative
effect of the errors, 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. See Kleypas, 272 Kan. at 1087. 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 132 S. Ct. 1594 (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, 272 Kan. at 1088.

Having clarified the standard of review and analytical framework appropriate for a
claim asserting penalty-phase cumulative error, we note that we were not as precise in
State v. Robinson, 303 Kan. 11, 363 P.3d 875 (2015). In Robinson, we quoted a standard
of review in both the guilt-phase cumulative-error discussion and the penalty-phase
cumulative-error discussion that was nearly identical to the standards advanced by
Cheever and the State in this case. See 303 Kan. at 288, 337 (quoting State v. Dixon,
289 Kan. 46, 71, 209 P.3d 675 [2009]). Although the result would not have been different
in that case under the standard articulated here, we disapprove of the standard as
presented in Robinson.

53
 We note that Cheever contends certain guilt-phase testimony was erroneous, and
he includes this asserted guilt-phase error for our consideration with respect to the
cumulative effect of error on the sentencing determination. We have concluded the
testimony was not erroneous; thus we do not consider it in our cumulative-error analysis.
Nevertheless, we agree with Cheever that certain guilt-phase errors, although they do not
individually or collectively require reversal of the conviction, could be of such a nature
that they impact the sentencing determination when the same jury decides both guilt and
sentence.

The individual penalty-phase errors we have identified are the district court's
improper but factual comment on the role of the record on appeal, the failure of the
instructions to require the jury to find Cheever was over 18 years old at the time of the
crime, the district court's failure to instruct the jury that mitigating circumstances need
not be proven beyond a reasonable doubt, and the prosecutor's improper comment on the
influence of methamphetamine as a mitigator. Because the failure to require the jury to
find Cheever was over 18 years old and the prosecutor's improper comment implicate
constitutional rights, we must be satisfied beyond a reasonable doubt that the total effect
of the cumulative errors, viewed in 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. See State v. Tully, 293 Kan. 176, 205, 262
P.3d 314 (2011) ("In a cumulative error analysis, '[i]f any of the errors being aggregated
are constitutional in nature, the cumulative error must be harmless beyond a reasonable
doubt.'").

We have no difficulty concluding beyond a reasonable doubt that, collectively,
these errors had little, if any, effect on the jury's ultimate conclusion regarding the weight
of the aggravating and mitigating circumstances. The four errors during the penalty phase

54
were isolated, and no one error compounded any negligible prejudicial effect arising out
of any of the other three errors.

First, the district court's remark about appellate review was too far removed from
the sentencing deliberations to have factored into them. Second, in light of Cheever's
asserted mitigating factor that he was 23 years old at the time of the crime, there was
little, if any, prejudice to the jury's weighing process arising from the district court's
failure to instruct the jury that it had to find Cheever was at least 18 years old at the time
of the crime.

The third identified error involves the district court's failure to instruct the jury that
mitigating circumstances need not be proven beyond a reasonable doubt. Earlier in this
decision we reviewed this error for clear error under state law. But, as noted above, our
consideration of the impact of this instructional error on cumulative error requires that we
apply a standard of review that is less burdensome than the clear error standard
previously applied. Nevertheless, for the reasons articulated in the section addressing this
instructional error above, we are convinced beyond a reasonable doubt that there was
little, if any, likelihood that the instructional error combined with any of the other errors
to impact the jury's ultimate conclusion regarding the weight of the aggravating and
mitigating circumstances.

Finally, the prosecutor's improper comment on the influence of methamphetamine
was an isolated, equivocal statement that did not increase the net prejudicial effect of the
errors previously identified.

In light of the record as a whole, the total effect of these errors had very little, if
any, likelihood of changing the jury's ultimate conclusion that death was the appropriate
sentence.
55
 CONCLUSION

The issues raised in Cheever's original brief which we have not revisited here were
decided against him in State v. Cheever, 295 Kan. 229, 284 P.3d 1007 (2012). Thus, no
issue raised by Cheever warrants reversal. Accordingly, we affirm Cheever's convictions
and sentences for capital murder of a law enforcement officer and for four counts of
attempted capital murder of a law enforcement officer. His convictions for the
manufacture of methamphetamine and for criminal possession of a firearm were affirmed
in our previous decision. Consequently, Cheever's sentences for those charges also stand.

Affirmed.

MICHAEL J. MALONE, Senior Judge, assigned.2

***

LUCKERT, J., concurring: I concur in the majority's decision to affirm Scott
Cheever's convictions and sentence, but I do not agree with the portion of the majority's
modified decision holding the district court did not err in allowing Dr. Michael Welner's
testimony that (1) Cheever was an outlaw whose bad character, rather than
methamphetamine intoxication, led him to shoot Sheriff Matthew Samuels and
(2) Cheever felt no remorse for his actions. K.S.A. 60-447 prohibits the admission of this
evidence. I conclude, however, the State met its burden of establishing a reasonable

2
REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 99,988 under the
authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court created
by the appointment of Justice Nancy Moritz to the United States 10th Circuit Court of Appeals.
56
probability that the introduction of this character evidence did not affect the outcome of
the trial in light of the entire record, and thus I concur in the result reached by the
majority.

K.S.A. 60-447 provides:

"Subject to K.S.A. 60-448, when a trait of a person's character is relevant as tending to
prove conduct on a specified occasion, such trait may be proved in the same manner as
provided by K.S.A. 60-446, except that (a) evidence of specific instances of conduct
other than evidence of conviction of a crime which tends to prove the trait to be bad shall
be inadmissible, and (b) in a criminal action evidence of a trait of an accused's character
as tending to prove guilt or innocence of the offense charged, (i) may not be excluded by
the judge under K.S.A. 60-445 if offered by the accused to prove innocence, and (ii) if
offered by the prosecution to prove guilt, may be admitted only after the accused has
introduced evidence of his or her good character."

Two aspects of this statute lead me to conclude that error occurred. First, K.S.A.
60-447 applies when a defendant's character is used to prove conduct, and that is what
happened in this case. Second, in this criminal case, the State could only introduce
character evidence to prove guilt if Cheever had first introduced evidence of his good
character. But the State took the first step of admitting evidence regarding Cheever's
character—a fact both the State and the majority ignore.

In its case-in-chief, the State introduced evidence of Cheever's bad character when
it sought the admission of the letters Cheever wrote to Nathan Fife and Crystal Mackey.
As the majority notes, these letters included confessions by Cheever and his narrative of
the events related to the shooting and his arrest. These portions of the letters are not at
issue. But the letters also included statements about character. Specifically, Cheever
stated he was an "outlaw until they bury me" and he would "do it again in a heartbeat."

57
These statements about character should not have been admitted in the State's case-in-
chief (and thus clearly before Cheever could have introduced evidence of his good
character).

Without question, the reference to Cheever being an "outlaw" commented on his
character, indicating he was an "odious" character who acted out of "rebellion and
contumacy." Dale County. v. Gunter, 46 Ala. 118, 130 (1871); see also Black's Law
Dictionary 404, 1277 (10th ed. 2014) (defining "outlaw" as "[a] lawless person or
habitual criminal; esp. a fugitive from the law" and "contumacy" as "[c]ontempt of court;
the refusal of a person to follow a court's order or direction"). Courts have uniformly
viewed references to the traits of an "outlaw" as evidence of character. See, e.g., People
v. Cordova, 293 P.3d 114, 122 (Colo. App. 2011) ("although the prosecutor's
characterization of defendant as an 'outlaw' during opening argument may have been
permissible oratory, his statements implying that, as an outlaw, defendant respected few
and feared none were improper attributions of traits of character"); Clark v. State,
915 N.E.2d 126, 129-30 (Ind. 2009) (where defendant "made his character a central
issue" of trial, state could admit defendant's social media posting that "'[s]ociety labels
me as an outlaw'"); State v. Day, 341 S.C. 410, 423-24, 535 S.E.2d 431 (2000) (use of
term "outlaw" impugned defendant's character and resulted in reversible error). Indeed,
this court reached the same conclusion in Cheever's first appeal when it concluded that
Dr. Welner had "characterized Cheever as a person who had chosen an antisocial outlaw
life style and who was indifferent to the violence he had committed." State v. Cheever,
295 Kan. 229, 256-57, 284 P.3d 1007 (2012) (Cheever I), vacated and remanded
134 S. Ct. 596 (2013).

Likewise, evidence about remorse constitutes character evidence in light of the
general view that "'[t]he repentant person has a better character than the unrepentant
person.'" Eisenberg, Garvey, & Wells, But Was He Sorry? The Role of Remorse in
58
Capital Sentencing, 83 Cornell L. Rev. 1599, 1605-06 nn.22 & 23 (1998) (quoting
Murphy, Repentance, Punishment, and Mercy, in Repentance: A Comparative
Perspective 143, 148-49, 157 [1997] and explaining that remorse mitigates both in a
deterrence framework, by showing that the defendant is "'less likely to commit crimes
again,'" and in a retribution framework, by showing that the defendant "'has a better
character'").

After the State introduced evidence that Cheever possessed the character of an
unremorseful outlaw, Dr. Welner linked the character evidence to Cheever's conduct.
He essentially testified that Cheever's shooting of Sheriff Samuels and the other law
enforcement officers was driven by Cheever's outlaw mentality—not by
methamphetamine-induced paranoia or aggressiveness. Dr. Welner made the link
between character and conduct when he testified:

"I don't think that the methamphetamine affected [Cheever's] decision to be an outlaw
and to identify with outlaws and to make decisions as outlaws do. I think that it is
possible, possible, that methamphetamine made him more aggressive. But it was making
a person aggressive who was armed to begin with and who identified not only with
outlaws but outlaws who were engaged in fatal shootouts with police officers."

By attributing Cheever's conduct to his character as an unremorseful outlaw, Dr. Welner
made the link K.S.A. 60-447 prohibits unless the exception applies—that is, unless
Cheever first introduced evidence of his good character. See K.S.A. 60-447(b)(ii).

As discussed, the character evidence first came into the trial during the State's
case-in-chief and before Cheever had put on any evidence. Cheever's counsel did not
object to the admission of the two letters, however. This lack of objection would typically
end any analysis of the error because Cheever failed to preserve the issue through an
"objection to the evidence timely interposed and so stated as to make clear the specific
59
ground of objection." K.S.A. 60-404; see State v. King, 288 Kan. 333, 342, 204 P.3d 585
(2009). A different rule applies in this case, however, because the legislature has directed
this court to consider any issue raised in a capital murder appeal, even those not properly
preserved. See, e.g., State v. Kleypas, 305 Kan. 224, 260-62, 382 P.3d 373 (2016), cert.
denied 137 S. Ct. 1381 (2017) (collecting cases discussing K.S.A. 21-4627[b], now
recodified at K.S.A. 2016 Supp. 21-6619[b] and reiterating that under this legislative
directive this court must consider an issue raised by the party even if not properly
preserved during district court proceedings); State v. Cheever, 304 Kan. 866, Syl. ¶ 6,
375 P.3d 979 (2016) (Cheever II) ("K.S.A. 2015 Supp. 21-6619[b] imposes a mandatory
exception in death penalty appeals to various statutes, rules, and prudential practices
barring consideration of unpreserved issues."); State v. Robinson, 303 Kan. 11, Syl. ¶ 44,
363 P.3d 875 (2015) ("The failure to lodge a contemporaneous objection to the admission
of evidence typically forecloses subsequent challenge on appeal. However, in capital
murder appeals, K.S.A. 21-4627[b], recodified as K.S.A. 2014 Supp. 21-6619[b],
compels review of any issue raised in defendant's brief, even if not preserved below."),
disapproved of on other grounds by Cheever II, 304 Kan. at 902.

K.S.A. 2016 Supp. 21-6619(b) effectively requires the State to comply with the
rules of evidence regardless of whether a defendant objects. This means prosecutors must
carefully analyze evidence and preemptively remove objectionable material or otherwise
refrain from its use. Here, that meant the State should have redacted Cheever's statements
about his character from the letters he wrote to Fife and Mackey before seeking to admit
the letters into evidence. This redaction could have been easily accomplished, and the
State could still have used the admissible portions of the letters, including Cheever's
confessions and narrative about the shootings. See State v. Lowrance, 298 Kan. 274, 291,
312 P.3d 328 (2013) (distinguishing evidence of actions and facts from character
evidence).

60
 Nevertheless, the majority downplays the effect of this rule because Cheever later
testified regarding the letters. From his testimony about the letters, which did not include
any direct statement that Cheever was or was not an "outlaw," the prosecutor questioned
Cheever about whether he saw himself as an outlaw at the time of the shootout. Cheever
conceded that he did. The prosecutor pursued similar questions about Cheever's outlaw
character with other witnesses, most significantly with Dr. Roswell Lee Evans, Jr.
Because Cheever clearly talked about his character and insinuated that when free from
the effects of methamphetamine he possessed remorse, the majority concludes the State
had every right to rebut that evidence.

I disagree. It is well-settled that a party cannot open the door for itself in order to
admit otherwise inadmissible evidence. E.g., State v. McClanahan, 259 Kan. 86, 94, 910
P.2d 193 (1996). Yet the State opened the door by admitting the Fife and Mackey letters
without redacting the statements in which Cheever commented on his character. Once the
State put the letters into evidence, Cheever was compelled to attempt to defuse the
inflammatory and prejudicial nature of the impermissible evidence both through his
testimony and the testimony of Dr. Evans. Consequently, in this capital case, I would
hold the State opened the door and it cannot take advantage of having done so by
pointing to Cheever's attempt to rebut the damage caused by the State's evidence. The
State introduced error, and Cheever's subsequent testimony did not give the State a free
pass that excused—or justified exploiting—the error.

Moreover, the State never argues that Cheever's testimony meets the requirements
of K.S.A. 60-447, which provides that the character evidence, "if offered by the
prosecution to prove guilt, may be admitted only after the accused has introduced
evidence of his or her good character." Rather than explaining how this condition was
satisfied at trial, the State concedes that Cheever had not admitted evidence of his good
character. In fact, it seeks to vilify Cheever by emphasizing Cheever's testimony that
61
reflected his bad character. Nevertheless, the majority gives the State a free pass on
meeting this condition precedent, stating: "We believe the State was too hasty in
conceding that Cheever did not introduce evidence of his good character." Slip op. at 11.
Typically, however, we consider that a party has waived or abandoned an issue if it is not
briefed. State v. Logsdon, 304 Kan. 3, 29, 371 P.3d 836 (2016). The majority not only
ignores this general rule, it creates the State's argument. This seems particularly
inappropriate in a case where the argument provides the requisite condition for the
evidence to be admissible in the first place. The State never articulates its rationale for the
admission of the character evidence contained in the letters it admitted into evidence.

I also reject the State's contention that Cheever's intoxication defense opened the
door to Dr. Welner's testimony about Cheever's character. Certainly, the State had the
right to rebut Cheever's defense that his methamphetamine intoxication prevented him
from forming the required intent to commit capital murder; as a result, the district court
properly admitted much of Dr. Welner's testimony. But Dr. Welner's testimony crossed
permissible lines when he used Cheever's traits of character to prove Cheever
premeditated the death of Sheriff Samuels.

In light of this statutory error, the next question becomes whether this error
requires reversal. In Cheever's first appeal, this court reversed Cheever's conviction based
on Dr. Welner's testimony but did so on constitutional grounds that made it unnecessary
to discuss the evidentiary issue now being considered. Cheever I, 295 Kan. at 257. This
court's previous discussion of harmless error based on that testimony does not
automatically transfer to the current discussion of error for two reasons.

First, the court previously found that all of Dr. Welner's testimony should have
been excluded. 295 Kan. at 251. Here, I would find that only a relatively small portion of
Dr. Welner's testimony, along with other evidence regarding character, should have been
62
excluded. While the character evidence bolster's Dr. Welner's opinion, when his
testimony is read without any reference to Cheever being an outlaw or a person lacking
remorse, it still presents a strong rebuttal of Cheever's defense.

Second, in this court's previous discussion of harmless error, the constitutional
standard applied. Under this standard, the State had to establish "'there is no reasonable
possibility that the error affected the verdict.'" Cheever I, 295 Kan. at 254 (quoting State
v. Ward, 292 Kan. 541, 569, 256 P.3d 801 [2011], cert. denied 56 U.S. 1221 [2012]).
Here, because I would find statutory—not constitutional—error, the State faces a lower
burden where the error will lead to reversal only if there is "a reasonable probability that
the error did or will affect the outcome of the trial in light of the entire record." Ward,
292 Kan. 541, Syl. ¶ 6. I would hold the State met this lower burden. As previously
noted, even without the character evidence, Dr. Welner's testimony strongly rebuts
Cheever's defense. And other evidence supports the State's theory that Cheever
premeditated the murder of Sheriff Samuels and acted with the necessary intent to
commit the other crimes. I would therefore affirm Cheever's convictions.

As to the effect of the evidence on the penalty phase, in sentencing proceedings of
capital murder cases, evidence of any matter a court deems relevant to the question of
sentencing can be admitted and "regardless of its admissibility under the rules of
evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay
statements." K.S.A. 2016 Supp. 21-6617(c). Hence, the character evidence could have
been considered during the penalty phase regardless of whether Cheever had introduced
evidence of his good character. The difference in the timing of when the jury heard the
evidence, whether during the guilt or penalty phase, would have had no effect on the
jury's verdict to impose the death penalty.

63
 Accordingly, I would find error in the State's admission of character evidence
during the guilt phase of the trial, but I would not reverse based on the error.

MICHAEL J. MALONE, Senior Judge, joins the foregoing concurring opinion.

***

JOHNSON, J., dissenting: I disagree with the majority's decision to uphold the
death penalty in this case. I have recently stated my belief that the death penalty violates
the prohibition against cruel or unusual punishment in § 9 of the Kansas Constitution Bill
of Rights. See, e.g., State v. Robinson, 303 Kan. 11, 357, 363 P.3d 875 (2015) (Johnson,
J., dissenting).

Nevertheless, even if the death penalty is not an unconstitutionally cruel or
unusual punishment for the citizens of Kansas, a capital murder trial must be conducted
in accordance with our state's rules of law, especially those plainly set forth in Kansas
statutes. As Justice Marla J. Luckert aptly explains in her concurrence, the State in this
case failed to follow the rules set forth in K.S.A. 60-447(b) that serve to constrain the
State's use of an accused's character trait to prove conduct that establishes the accused's
guilt. While agreeing with Justice Luckert's error analysis, I take the liberty of making a
few comments in that regard.

The majority characterizes the State's concession—that Cheever did not introduce
evidence of his good character—as simply being "too hasty." Slip op. at 11. That
characterization is too clever by half. For appellate purposes, the important aspect of the
concession is that the State did not brief, argue, or provide support with pertinent
authority for the point that the State was in compliance with K.S.A. 60-447(b) because
Cheever had introduced evidence of his good character. Cf. State v. Williams, 303 Kan
64
750, 758, 368 P.3d 1065 (2016) (issue not briefed deemed waived or abandoned); State v.
Sprague, 303 Kan. 418, 425, 362 P.3d 828 (2015) (point raised incidentally but not
argued also deemed abandoned); State v. Murray, 302 Kan. 478, 486, 353 P.3d 1158
(2015) (failure to support a point with pertinent authority akin to failing to brief the
issue). Pointedly, the majority fails to explain why it is permitted to assume the role of
prosecutor and make arguments that the State's actual representative has waived and
abandoned.

With respect to the merits of the majority's court-made argument that Cheever
introduced evidence of his good character, I submit that it plays fast and loose with the
facts, something we would ordinarily not allow the actual prosecutor to do. For instance,
the majority declares that Cheever "disavowed his earlier outlaw persona," when no such
statement appears in the record. Slip op. at 15.

In my view, K.S.A. 60-447(b) furthers the concept that an accused should be
convicted of a crime based upon evidence that the person actually committed the
proscribed acts, rather than on evidence of a character trait that suggests the accused is
the type of person who could have committed those acts. After all, the requisite elements
of capital murder that the State had to prove beyond a reasonable doubt were the same
whether Cheever was deemed to be a remorseless outlaw or a penitent saint. The
majority's creative application of the statute in this case undermines its purpose.

I am also baffled by the majority's declaration that

"[i]t would be unfair to permit Cheever to testify about his bad character at the time of the
murder and to attribute it to his methamphetamine use while refusing to allow the State to
explore that testimony with Cheever and rebut it with expert testimony." Slip op. at 15.

65
The majority had already cited to State v. Bowers, 218 Kan. 736, 737, 545 P.2d 303
(1976), for the proposition that a defendant does not put his or her character in issue by
asserting an intoxication defense. Moreover, the plain language of the statute says that the
prosecution can admit bad character evidence "only after the accused has introduced
evidence of . . . good character." (Emphasis added.) K.S.A. 60-447(b)(ii). Further, the
majority fails to explain from whence the State derives a right to a fair trial or by what
authority this court can contravene plain statutory language to appease its own sense of
fairness.

Where I part company with Justice Luckert is on the determination of
harmlessness of the error. In my assessment of harmlessness, I would also consider the
manner in which it was presented to the jury.

The majority recognizes the potential jury confusion created by Dr. Welner's first-
person narrative. Previously, in the first modern-era death penalty case, this court found
that "prosecutors cross the line when they make up an imaginary script that purports to
tell the jury what the victim was feeling." State v. Kleypas, 272 Kan. 894, 1114, 40 P.3d
139 (2001). The same should be true when the prosecutor presents an expert's imaginary
script about what the defendant was thinking.

The majority acknowledges that Dr. Welner implied that he knew what Cheever
was actually thinking as the events unfolded without any evidentiary support for such
purported knowledge. But inexplicably the majority then summarily declares that the jury
was not misled by Dr. Welner's form of communication. That conclusory determination
of harmlessness appears to be in conflict with the majority's assessment of the weight and
credibility of Dr. Welner's testimony in its original opinion. Back then, the majority
declared that Dr. Welner's "'testimony stands out both because of his qualifications . . .
and because of the powerful content of his message.' [Citation omitted.]" State v.
66
Cheever, 295 Kan. 229, 256, 284 P.3d 1007 (2012). I cannot accept that a powerful
message from a highly qualified expert delivered in an impermissible imaginary script is
harmless, especially given the heightened reliability rule discussed below.

Turning to the jury instructions, I agree with the majority that the trial court erred
in failing to follow our long standing rule on how to instruct death-penalty juries about
mitigating circumstances. That rule was first clearly enunciated for trial judges in the first
Kleypas opinion. 272 Kan. at 1078. The part of that rule applicable here provides "that
capital juries in Kansas must be informed that mitigating circumstances need not be
proven beyond a reasonable doubt." (Emphasis added.) State v. Gleason, 299 Kan. 1127,
1196-97, 329 P.3d 1102 (2014), rev'd and remanded sub nom. Kansas v. Carr, 577 U.S.
___, 136 S. Ct. 633, 193 L. Ed. 2d 535 (2016). As the dissent in Carr recognized, our
reversal in Gleason rested in part "on some lower courts' failure to give instructions
reflecting the Kansas Supreme Court's 'repeated recognition of the required content'" of
the mitigating circumstances jury instruction. 136 S. Ct. at 650 (Sotomayor, J.,
dissenting). A trial court's refusal to adhere to oft-repeated directions from the Supreme
Court on how to instruct a jury constitutes error in any circumstance but most especially
in a death penalty case. The majority drops the ball by finding the error harmless.

The majority first goes astray when it assumes the role of a death-penalty jury,
"independently review[ing] the complete record on appeal, including the penalty-phase
proceedings in full," and then using that review to reweigh the aggravating factors against
the mitigating circumstances. Slip op. at 34. For instance, the majority makes its own
jury-like finding that "Cheever's mitigating evidence of his potential for rehabilitation
was fully countered by the jury's unanimous finding beyond a reasonable doubt that he
had a previous felony conviction in which he inflicted great bodily harm." Slip op. at 35.
Maybe the jury would have believed that weighting declaration by the majority if the jury
had been told that Cheever's potential for rehabilitation did not have to be proved beyond
67
a reasonable doubt. Then, again, maybe not. In other words, Cheever's death sentence is
not the product of an informed decision by a jury of his peers. Rather, a majority of this
court is responsible for the death sentence in this case.

More importantly, however, I do not believe that the clearly erroneous provision
of K.S.A. 22-3414(3) provides an excuse for the majority to don the mantle of super-juror
here. That provision states that "[n]o party may assign as error the giving or failure to
give an instruction," unless that party properly objects in the trial court. (Emphasis
added.) K.S.A. 22-3414(3). This, however, is a death penalty case, governed by a special
set of statutes. One of those provisions says that this court "shall be authorized to notice
unassigned errors appearing of record if the ends of justice would be served thereby."
(Emphasis added.) K.S.A. 2016 Supp. 21-6619(b). At best, it seems counterintuitive to
saddle the defendant with a clearly erroneous burden of proof, when the court could
conduct a sua sponte review of the issue as an unassigned error, with or without an
objection to the trial court. At worst, shifting the burden to the defendant runs counter to
the heightened scrutiny mandated in death penalty cases.

The majority's review does not appear to take into account that this is a death
penalty case subject to heightened scrutiny. But in another recent case, the majority at
least gave lip service to the rule that a death penalty appellate review is subject to a
heightened reliability standard. Kleypas, 305 Kan. at 274. There, we specifically said:

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

68
 I submit that permitting the erroneous admission of evidence of the defendant's
bad character traits in the State's rebuttal via its expert's unsupported first-person,
imaginary script narrative undermines the reliability of the jury's determination to impose
the death penalty. Intuitively, one would expect jurors to be more inclined to vote for
death if the State successfully portrays the defendant's character to be that of a menace-
to-society and incorrigible scofflaw. Likewise, requiring the defendant to prove that the
district court's erroneous instruction on mitigating circumstances was the sole reason for
the jury's verdict of death denigrates, rather than heightens, the reliability of that verdict.
As Kleypas related, citing to the United States Supreme Court in Beck v. Alabama, 447
U.S. 625, 638, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980), we have a duty to set aside such
procedures that do not pass the heightened scrutiny standard. 305 Kan. at 275.

I would fulfill my duty, apply the constitutionally required heightened scrutiny
standard, and reverse the death penalty in this case based upon the unreliable procedures
employed.

69